Cindy Abbott v. Sangamon County ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1121
C INDY C. A BBOTT and
T RAVIS A BBOTT,
Plaintiffs-Appellants,
v.
S ANGAMON C OUNTY, ILLINOIS,
N EIL W ILLIAMSON, Sheriff,
Sangamon County, Illinois, and
T ROY M. SWEENEY, Deputy Sheriff,
Sangamon County, Illinois,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of Illinois.
No. 3:09-cv-03261-SEM-BGC—Sue E. Myerscough, Judge.
A RGUED S EPTEMBER 25, 2012—D ECIDED JANUARY 29, 2013
Before K ANNE, T INDER, and H AMILTON, Circuit Judges.
T INDER, Circuit Judge. Cindy Abbott and her adult son
Travis Abbott (collectively, the Abbotts) brought this
action under 42 U.S.C. § 1983 against Sangamon County,
2 No. 12-1121
Sheriff Neil Williamson, and Deputy Troy Sweeney, each
asserting Fourth Amendment claims of false arrest, false
imprisonment, and excessive force. The district court
granted summary judgment for Deputy Sweeney on all
claims, and the County and Sheriff Williamson were
subsequently dismissed. We affirm the district court’s
judgment with respect to all of Travis’s claims
because Deputy Sweeney had probable cause to arrest
Travis and is entitled to qualified immunity on Travis’s
excessive-force claim. We also affirm the district court’s
judgment with respect to Cindy’s false-arrest and false-
imprisonment claims on the basis of qualified immu-
nity. But we vacate the judgment with respect to Cindy’s
excessive-force claim and remand for further proceedings.
I
A
Given the procedural posture of this case, we view the
facts in a light favorable to the Abbotts, the nonmovants.
E.g., Vodak v. City of Chicago, 639 F.3d 738, 740 (7th Cir.
2011). But we also point out several of the material dif-
ferences between the Abbotts’ version of events and
Deputy Sweeney’s narrative.
On the morning of June 25, 2007, Sangamon County
animal control officers responded to a complaint that
the Abbotts’ dog, a Chow mix named Biscuit, had been
running loose on Lyons Road in Spaulding, Illinois. After
visiting the complainants’ residence, Animal Control
Officer John Moore went to the Abbotts’ residence and
No. 12-1121 3
observed twenty-year-old Travis Abbott running into
the house and Biscuit unchained in the garage area.
(The record indicates that up to two additional animal
control officers were present, but it is unclear whether
they arrived with Officer Moore.)
Over the next hour-and-a-half Officer Moore at-
tempted to corral Biscuit, but Travis interfered with
those efforts by running to different doors and windows
in the house and calling out Biscuit’s name, which
prompted Biscuit to run to that area of the house. At
one point, Travis told Moore and another animal
control officer that if they touched his dog he would
“knock them out.” Travis shouted additional threats at
Officer Moore while displaying his middle finger, at
one point yelling, “If you don’t leave I’m going to
kick your ass.” These repeated threats prompted
Officer Moore to call the police. When informed that
the police had been called, Travis locked himself inside
but continued calling Biscuit to different areas of the
house. At some point, Travis called his mother, Cindy
Abbott, who was at work, and asked her to come home.
Sergeant James Lawley of the Riverton Police Depart-
ment was the first police officer to arrive at the Abbotts’
residence, but he was instructed to standby until a
Sangamon County Deputy arrived. The animal control
officers informed Sergeant Lawley that Travis had ob-
structed their efforts to capture Biscuit and had
threatened them by shouting, “If you touch my dog
I am going to kick your ass[;] I am going to knock you
out.” Sergeant Lawley successfully summoned Travis to
4 No. 12-1121
the house’s front window and then asked him to step
outside and talk; Travis responded, “Fuck you. I am no[t]
coming out there.” A few minutes later, Deputy Sweeney
arrived and was told by Sergeant Lawley that Travis
had threatened the animal control officers while making
a fist; Sweeney attempted to coax Travis out of the house
but was unsuccessful. Around this time, Cindy arrived
home and parked her Jeep Liberty in the driveway
behind Sweeney’s squad car. Deputy Sweeney talked
with Cindy and requested that she convince Travis to
come outside and tell his side of the story; Sweeney
advised Cindy that he could get a warrant if Travis re-
fused. Cindy went inside the house and came back
outside a short time later with Travis in tow.
Upon questioning by Deputy Sweeney, Travis ad-
mitted that he had verbally threatened the animal
control officers, knowing them to be animal control
officers. Sweeney informed Travis that he was under
arrest for obstruction and assault. Travis protested and
began backing away, but Sergeant Lawley grabbed his
arm and advised him not to resist. Sweeney handcuffed
Travis’s arms behind his back, double locked the hand-
cuffs, and confirmed the proper fit. Once hand-
cuffed, Travis became agitated and angry with Cindy,
yelling and cursing at her. And as he was being escorted
to Sweeney’s police cruiser, Travis yelled to the animal
control officers, “Thanks a lot assholes!” Sweeney con-
ducted a quick pat-down search and then placed Travis
in the backseat of his squad car, fastening him in with
a seatbelt.
No. 12-1121 5
Once Travis had been handcuffed, Cindy had gone
back into the house to use the restroom and to lock up.
When she came back outside, she stood in the driveway
and talked with Sergeant Lawley. At this point, Deputy
Sweeney had begun backing his squad car out of the
driveway, which required him to maneuver around
Cindy’s vehicle.
Meanwhile, Travis had become even more agitated in
the backseat of the squad car. He had elevated his legs,
struggled around, and successfully maneuvered his
hands from behind his back to the front of his body; he
had also begun screaming for his mother to get him out.
(According to Sweeney, Travis had also unfastened his
seatbelt and was reaching for the door, but Travis
denies this.) Sweeney’s squad car that day was not
equipped with a partition or a prisoner-transport shield,
so when Sweeney saw Travis fidgeting around he
reached back and attempted to gain control of Travis,
all the while still trying to navigate his car backward
around Cindy’s vehicle. Perhaps unsurprisingly, Sweeney’s
foot slipped off the brake pedal as he was trying to
control Travis and his cruiser rolled into Cindy’s vehicle.
Cindy, who was still speaking with Sergeant
Lawley, began screaming when the vehicles collided.
Lawley attempted to calm her, telling her that Sweeney
had merely bumped her vehicle and that any damage
would be covered by insurance. Cindy did not
calm down. Instead, she began walking toward her
vehicle and the squad car to inspect the damage and
was screaming, “I can’t believe you hit my vehicle!”
6 No. 12-1121
Deputy Sweeney placed his cruiser in park and exited
so that he could go to the rear passenger-side door
where, according to him, Travis was attempting to es-
cape. But as he exited the vehicle, he observed Cindy,
upset and screaming, moving toward his location at
the front driver-side door of the squad car. According
to Sweeney, he was concerned that Cindy was trying
to help her son escape, for Travis was still “going nuts”
in the backseat of the car. As a result, he held up his
hand and twice ordered Cindy to stop, but she con-
tinued on toward the vehicles. Cindy does not recall
whether Sweeney ordered her to stop, though she
does recall that he attempted to calm her. According to
Cindy, she was walking toward her vehicle to inspect
the damage when Deputy Sweeney, without warning,
shot her in the abdomen with his taser, causing her to
fall to the ground. Specifically, she explained that “some-
thing hit me and it dropped me to my knees and
then on my back and I was immobilized.” As she was
screaming from the pain, Deputy Sweeney came closer
to her and yelled for her to roll over onto her stomach,
but she could not move so Sweeney hit her with another
jolt of electricity. After the second jolt, Sweeney rolled
Cindy over onto her stomach and handcuffed her with
her arms behind her back. With Cindy secure, Sweeney
then went to the other side of the squad car to
resecure Travis.
Sweeney disputes Cindy’s version. According to Swee-
ney and Sergeant Lawley, Cindy was screaming about
her son being arrested and her car being hit. When
Cindy disobeyed Sweeney’s orders to stop, he warned
her twice that if she failed to comply he would use his
No. 12-1121 7
taser. And when she continued approaching, he shot her
in the abdomen with his taser, delivered an electric
shock, and caused her to drop to the ground. Sergeant
Lawley claims that after the first tasing, Cindy disobeyed
Sweeney’s order to turn over and attempted to get up,
so Sweeney zapped her a second time. Sweeney, how-
ever, testified that he “began giving her commands to
turn over onto her stomach so that she could be
handcuffed,” but she was not responsive so he “again
commanded her and told her if she did not comply that
she would be tased again”; Cindy again gave no
response, so Sweeney tased her a second time. After the
second tasing, Cindy rolled over onto her stomach
without help and placed her hands behind her back.
Sergeant Lawley placed her in handcuffs, while Sweeney
went to deal with Travis.
Travis testified that when Sweeney arrived at the
rear passenger-side door, he “got on top of me and
dropped an elbow on my throat and just tried to ta[s]e
me. The top was off of it, the ta[s]er . . . . And he tried
to getting [sic] me all over my whole body. And he did,
he kept getting me, getting me, getting me. I was trying
to fight with him.” He testified further that Sweeney
told him “just let me get you one good time” and
Sweeney started “getting” him all over his arm with
the taser, delivering “little second bursts.” Travis also
claims that once Sweeney pulled him out of the car he
threw him on the ground, gave him “the knee bomb,”
and used the taser three more times on his back. Travis
denies that he was attempting to escape and that
he was acting wild when Sweeney opened the rear pas-
8 No. 12-1121
senger-side door. But he does not dispute that he
was struggling with Sweeney in the back of the police
cruiser and at one point was “out powering” Sweeney.
Deputy Sweeney’s recollection is significantly differ-
ent. According to him, while he was engaged with
Cindy, Travis was kicking the rear passenger-side-
door window in an attempt to escape (he could not
simply open the door because the child-safety switch
was on, so he was trying to kick his way out). And ac-
cording to Officer Moore, when Sweeney opened the
car door Travis “continued to act wild and attempt to
escape and fight with Deputy Sweeney.” Sergeant Lawley
went to assist Sweeney after he had secured Cindy, and
when he arrived at the rear passenger-side door,
Sweeney was on top of Travis, but Travis had his hands
in front of him and was fighting. Sweeney told Travis
to stop resisting but to no avail; ultimately he had to
use his taser to subdue Travis. Officer Moore stated
that Sweeney “drive stunned” Travis “until he stopped
fighting.” According to Deputy Sweeney, he used his
taser on Travis only inside the car. Once Travis was
subdued, Deputy Sweeney and Sergeant Lawley
removed Travis from the backseat and placed him on
the ground in a prone position. Sweeney then unlocked
the handcuffs and reapplied them with Travis’s
hands behind his back. Travis complied with Sweeney’s
order to remain lying face down.
Cindy could hear Travis screaming but she could not
see him; in fact, she did not see Travis from the time
he was first handcuffed until later at the police station.
No. 12-1121 9
After Cindy had been lying on her stomach with her
hands cuffed behind her back for what she thinks was
thirty minutes, Deputy Sweeney returned and sat her
up. Sweeney then had a female animal control officer
remove the taser prongs from Cindy’s abdomen. He
then told Cindy that he would summon another officer
to transport her.
Eventually, Cindy and Travis were transported to
the police station in separate vehicles. They were held
at the jail for about eight hours until Cindy’s parents
(Travis’s grandparents) posted bail. Cindy was never
informed of the charges against her. She hired an at-
torney to represent her and Travis at their court date,
but she never heard anything further and assumed that
the matter had been dropped.
B
In 2009, the Abbotts filed this action under 42 U.S.C.
§ 1983 in Illinois state court, but the defendants
removed the case to the Central District of Illinois, see
28 U.S.C. § 1441. On August 19, 2011, the Abbotts filed
their second amended complaint, in which they each
asserted claims of false arrest, false imprisonment, and
excessive force.
The district court granted Sweeney’s motion for sum-
mary judgment. See Abbott v. Sangamon County,
No. 09-3261, 2011 WL 5244259 (C.D. Ill. Nov. 3, 2011). The
court concluded that Deputy Sweeney had probable
cause to arrest both Travis and Cindy and that, in any
10 No. 12-1121
event, he was cloaked with qualified immunity. Id. at *5-6,
10. On Travis’s excessive-force claim, the court con-
cluded that Sweeney was “entitled to qualified im-
munity because a reasonable officer could have believed
that he was entitled to use force on an arrestee who
continued to physically resist or who failed to submit
to the officer’s authority.” Id. at *9 (citation omitted).
And “based on the undisputed fact that Deputy
Sweeney used the taser until Travis stopped fighting,
Deputy Sweeney’s use of force was no more than
that necessary to gain control of Travis.” Id. (citation
omitted). On Cindy’s excessive-force claim, the district
court concluded that Cindy had admitted that she dis-
obeyed direct orders to stop and roll over on her
stomach, so “[a] reasonable officer would have
believed that employing a taser gun [the first
time] . . . would not violate Cindy’s constitutional
rights.” Id. (citation omitted). As to the second employ-
ment of the taser, the court dismissed Cindy’s testimony
that she did not comply because she could not move
because “ ‘what matters for this question is not the
arrestee’s perspective but rather the perspective of a
reasonable officer on the scene.’ ” Id. at *10 (citation omit-
ted).
Subsequently, the Abbotts filed a motion to dismiss
the remaining defendants as well as a motion to alter
the judgment. On January 5, 2012, the district court dis-
No. 12-1121 11
missed the remaining defendants without prejudice,1
denied the motion to alter the judgment, and entered
final judgment against the Abbotts. This appeal followed.
II
We review de novo the district court’s grant of
summary judgment. E.g., Suarez v. Town of Ogden Dunes,
Ind., 581 F.3d 591, 595 (7th Cir. 2009). Summary judgment
is proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-
23 (1986).
Governmental actors performing discretionary func-
tions are entitled to qualified immunity from suits
for damages “insofar as their conduct does not violate
clearly established statutory or constitutional rights
of which a reasonable person would have known.” Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations omit-
ted); accord Messerschmidt v. Millender, 132 S. Ct. 1235,
1
During oral argument before this court, the Abbotts’ counsel
committed not to refile the claims against the County and the
Sheriff (i.e., the Abbotts have agreed to dismissal of those
defendants with prejudice), thereby eliminating any question
about the finality of the district court’s judgment and, accord-
ingly, our appellate jurisdiction, 28 U.S.C. § 1291. See, e.g.,
Arrow Gear Co. v. Downers Grove Sanitary Dist., 629 F.3d 633, 636-
37 (7th Cir. 2010); India Breweries, Inc. v. Miller Brewing Co., 612
F.3d 651, 657-58 (7th Cir. 2010).
12 No. 12-1121
1244 (2012). “Qualified immunity balances two im-
portant interests—the need to hold public officials ac-
countable when they exercise power irresponsibly and
the need to shield officers from harassment, distraction,
and liability when they perform their duties reason-
ably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). It
gives public officials “breathing room to make rea-
sonable but mistaken judgments about open legal ques-
tions. When properly applied, it protects ‘all but the
plainly incompetent or those who knowingly violate
the law.’ ” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011)
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)); see
also Anderson v. Creighton, 483 U.S. 635, 646 (1987) (“The
general rule of qualified immunity is intended to
provide government officials with the ability ‘rea-
sonably to anticipate when their conduct may give rise
to liability for damages.’ ” (brackets and citation omitted)).
To overcome the defendant’s invocation of qualified
immunity, the plaintiffs must show both (1) that the
facts make out a constitutional violation, and (2) that
the constitutional right was “clearly established” at the
time of the official’s alleged misconduct. E.g., al-Kidd,
131 S. Ct. at 2080; Chelios v. Heavener, 520 F.3d 678, 691
(7th Cir. 2008). Though once required to determine
whether a violation occurred before determining
whether the right was clearly established, see Saucier v.
Katz, 533 U.S. 194, 200-01 (2001), courts now have dis-
cretion to grant immunity on the basis that the right
was not clearly established without determining whether
there was a violation in the first place, see Pearson, 555
U.S. at 227, abrogating Saucier, 533 U.S. at 200-01.
No. 12-1121 13
A
We begin with the Abbotts’ false-arrest and false-impris-
onment claims. The existence of probable cause to arrest
is an absolute defense to any § 1983 claim against a
police officer for false arrest or false imprisonment.
Mustafa v. City of Chicago, 442 F.3d 544, 547 (7th Cir. 2006).
Probable cause to justify an arrest exists if the totality
of the facts and circumstances known to the officer at the
time of the arrest would warrant a reasonable, prudent
person in believing that the arrestee had committed,
was committing, or was about to commit a crime. See
Thayer v. Chiczewski, ___ F.3d ___, ___, Nos. 10-1974 &
10-2064, 2012 WL 6621169, at *6 (7th Cir. Nov. 27, 2012); see
also Michigan v. DeFillippo, 443 U.S. 31, 37 (1979); Beck v.
Ohio, 379 U.S. 89, 91 (1964). As the term suggests,
probable cause deals not with hard certainties but with
probabilities. Illinois v. Gates, 462 U.S. 213, 231 (1983);
Suarez, 581 F.3d at 595. Yet, although it requires some-
thing more than a hunch, probable cause does not
require a finding that it was more likely than not that the
arrestee was engaged in criminal activity—the officer’s
belief that the arrestee was committing a crime need
only be reasonable. See Henry v. United States, 361 U.S.
98, 102 (1959); Fox v. Hayes, 600 F.3d 819, 833 (7th Cir.
2010). It is a practical, commonsense, nontechnical, and
fluid conception that deals with “the factual and
practical considerations of everyday life on which rea-
sonable and prudent men, not legal technicians, act.”
Brinegar v. United States, 338 U.S. 160, 175 (1949);
accord United States v. Reed, 443 F.3d 600, 603 (7th Cir.
14 No. 12-1121
2006). Determining whether an officer had probable
cause to arrest entails a purely objective inquiry; the
officer’s subjective state of mind and beliefs are irrele-
vant. Whren v. United States, 517 U.S. 806, 813 (1996);
Tebbens v. Mushol, 692 F.3d 807, 819 (7th Cir. 2012). Al-
though our focus is on what the officer knew at the time
of the arrest, Devenpeck v. Alford, 543 U.S. 146, 152 (2004),
we must determine whether those facts and circum-
stances, “ ‘viewed from the standpoint of an objectively
reasonable police officer, amount to’ probable cause,”
Maryland v. Pringle, 540 U.S. 366, 371 (2003) (quoting
Ornelas v. United States, 517 U.S. 690, 696 (1996)). Cognizant
that police officers operate in the real world, often in
rapidly unfolding and even chaotic circumstances, we
view the facts not “ ‘as an omniscient observer would
perceive them but . . . as they would have appeared to
a reasonable person in the position of the arresting
officer—seeing what he saw, hearing what he
heard.’ ” Carmichael v. Vill. of Palatine, Ill., 605 F.3d 451,
457 (7th Cir. 2010) (emphasis omitted) (quoting Mahoney
v. Kesery, 976 F.2d 1054, 1057 (7th Cir. 1992)). Usually in
a § 1983 false-arrest case the jury determines whether
the arrest was supported by probable cause; but if the
underlying facts are undisputed, the court can make
that decision on summary judgment. Chelios, 520 F.3d at
686; cf. Ornelas, 517 U.S. at 691 (appellate courts review
de novo ultimate question of probable cause).
The probable-cause standard inherently allows room
for reasonable mistakes, see Brinegar, 338 U.S. at 176,
but qualified immunity affords an added layer of protec-
tion by shielding officers from “suit for damages if ‘a
No. 12-1121 15
reasonable officer could have believed [the arrest] to
be lawful, in light of clearly established law and the
information the [arresting] officers possessed.’ ” Hunter
v. Bryant, 502 U.S. 224, 227 (1991) (per curiam) (second
alteration in original) (quoting Anderson, 483 U.S. at 641);
see, e.g., Fleming v. Livingston Cnty., Ill., 674 F.3d 874,
880 (7th Cir. 2012). Often termed “arguable probable
cause,” Thayer, ___ F.3d at ___, 2012 WL 6621169, at *6,
qualified immunity in this context protects officers
who reasonably but mistakenly believe that probable
cause exists, Hunter, 502 U.S. at 227. Though at first
blush similar, the arguable-probable-cause inquiry is
separate from the probable-cause inquiry, Fleming, 674
F.3d at 880; whereas an arrest not supported by
probable cause is a constitutional violation, an arrest not
supported by arguable probable cause is a violation of
a “clearly established” constitutional right, see Hunter,
502 U.S. at 227; McComas v. Brickley, 673 F.3d 722, 725
(7th Cir. 2012).
The existence of probable cause or arguable probable
cause depends, in the first instance, on the elements of
the predicate criminal offense(s) as defined by state law.
DeFillippo, 443 U.S. at 36; Thayer, ___ F.3d at ___, 2012
WL 6621169, at *7. There is some dispute as to
precisely what Deputy Sweeney told Travis he was
being arrested for, but this is immaterial because an
arrest can be supported by probable cause that the
arrestee committed any crime, regardless of the officer’s
belief as to which crime was at issue, Devenpeck, 543 U.S. at
153; Fox, 600 F.3d at 837. It is similarly immaterial
that Cindy was not informed of the basis for her arrest.
16 No. 12-1121
See Devenpeck, 543 U.S. at 155 (“While it is assuredly
good police practice to inform a person of the reason for
his arrest at the time he is taken into custody, we have
never held that to be constitutionally required.”).
1
Deputy Sweeney argues, and the district court con-
cluded, that he had probable cause to arrest Travis either
for assault or disorderly conduct (or both) under Illinois
law. Whether Sweeney did, of course, depends on the
facts known to him at the time of the arrest. E.g., Tebbens, 692
F.3d at 816. There is no serious question that Travis
was under arrest when Sweeney told him he was under
arrest and placed him in handcuffs. Cf. Hayes v. Florida,
470 U.S. 811, 813-17 (1985); Dunaway v. New York, 442 U.S.
200, 206-16 (1979).
In Illinois, misdemeanor assault occurs when a
person “knowingly engages in conduct which places
another in reasonable apprehension of receiving a bat-
tery.” 720 ILCS 5/12-1(a). Words alone seldom if ever are
sufficient to constitute an assault; rather, there must
be an accompanying gesture that is either inherently
threatening or made so by the accompanying words.
Kijonka v. Seitzinger, 363 F.3d 645, 647 (7th Cir. 2004)
(Illinois law); People v. Floyd, 663 N.E.2d 74, 76 (Ill. App.
Ct. 1996); see Fox, 600 F.3d at 838 (no probable cause
where plaintiff’s statement was not “accompanied by a
threatening gesture, such as a raised fist”). And assault
lies only if the threatening gesture creates in the victim
an objectively reasonable apprehension of an imminent
No. 12-1121 17
battery. See Kijonka, 363 F.3d at 647-48; Floyd, 663 N.E.2d
at 75-76.
We have little difficulty concluding that Sweeney
had probable cause to arrest Travis for assault. When
Sweeney arrived at the scene, Sergeant Lawley told him
that Travis had threatened to wallop the animal control
officers if they touched Biscuit and that Travis had made
a fist while shouting at the officers. Thus, at the time of
the arrest, Sweeney knew that Travis had threatened
the animal control officers with words and at least one
accompanying gesture; that the threats had been condi-
tioned on the officers’ successfully corralling Biscuit;
and that the officers had considered the threats serious
enough to warrant calling for police assistance. See,
e.g., Woods v. City of Chicago, 234 F.3d 979, 996 (7th Cir.
2000) (probable cause to arrest where plaintiff wielded
lead pipe while threatening to kill victim); People v. Preis,
189 N.E.2d 254, 256-57 (Ill. 1963) (disgruntled client
committed assault with intent to murder where she
told lawyer that she was going to shoot him, placed
her hand in her bulging coat pocket, and stood up);
People v. Ferguson, 537 N.E.2d 880, 881-82 (Ill. App. Ct.
1989) (defendant committed assault when he reached
into vehicle’s trunk and threatened to “kick [victim’s]
ass”).
It is true that Sweeney did almost no independent
investigation after Sergeant Lawley apprised him of
the situation, but he was not required to do so, because
“[o]nce a reasonably credible witness informs an officer
that a suspect has committed a crime, the police have
18 No. 12-1121
probable cause to arrest the suspect,” Mustafa, 442 F.3d
at 548; see also Kelley v. Myler, 149 F.3d 641, 647 (7th Cir.
1998) (probable cause to arrest plaintiff for trespass
based on complaint; officers not required to verify that
plaintiff had crossed property line). Travis makes no
argument that it was unreasonable for Sweeney to rely
on Lawley’s information or for Lawley to rely on the
animal control officers’ complaint—that is, he makes no
claim that those witnesses were not reasonably credible.
See, e.g., Holmes v. Vill. of Hoffman Estates, 511 F.3d 673,
680 (7th Cir. 2007) (officer entitled to rely on informa-
tion from fellow law enforcement officer); Sheik-Abdi
v. McClellan, 37 F.3d 1240, 1247 (7th Cir. 1994) (officers
entitled to rely on information from paramedic). And
the only additional information Sweeney learned prior
to the arrest came from Travis and corroborated much
of what Sweeney had already been told.
Travis does not dispute any of this. Rather, he
contends that there was no probable cause to arrest him
for assault because he made the threats and gestures
while he was inside the house, so he could not have
placed the animal control officers in apprehension
of an imminent battery. It is unclear whether Travis
was inside the entire time he was making the threats—the
record indicates that Travis did not lock himself inside
the house until after Officer Moore had called the
police, suggesting that he may have been outside before-
hand, and Sergeant Lawley attested that when he
arrived Travis was standing outside on the porch—but
this lack of clarity in the record is not material. Even
assuming that Travis was inside the house when he
No. 12-1121 19
made the threats and accompanying gesture, it is difficult
to understand how Officer Moore’s apprehension of a
battery was any less imminent. The threat was con-
ditioned on Moore touching or capturing Biscuit, which
he was trying to do. Had the officer successfully
corralled the dog, Travis could have made good on his
threats simply by stepping outside and engaging the
officer in fisticuffs—he retained control over his ability
to carry out his threats. Cf. People v. Kettler, 459 N.E.2d 7,
11 (Ill. App. Ct. 1984) (no assault where arrestee had
been strapped to gurney). In any event, Travis does not
contend that Sergeant Lawley or anyone else informed
Sweeney that Travis had made the threats and gestures
while locked inside the house. Cf. Gramenos v. Jewel Cos.,
797 F.2d 432, 439 (7th Cir. 1986) (“Probable cause
does not depend on the witness turning out to have
been right; it’s what the police know, not whether
they know the truth, that matters.”). Thus, even when
viewing the facts in Travis’s favor, Deputy Sweeney
clearly had probable cause to arrest him for assault.
As if this were not enough, Deputy Sweeney also had
probable cause to arrest Travis for disorderly conduct
under Illinois law. See 720 ILCS 5/26-1(a)(1) (“A per-
son commits disorderly conduct when he know-
ingly . . . [d]oes any act in such unreasonable manner as
to alarm or disturb another and to provoke a breach of
the peace . . . .”). In Illinois, “[t]o commit disorderly
conduct, ‘a person must engage in conduct that: (1) is
unreasonable; (2) alarms or disturbs another; and
(3) threatens to provoke or provokes a breach of the
peace.’ ” Thayer, ___ F.3d at ___, 2012 WL 6621169, at *8
20 No. 12-1121
(citation omitted). The unreasonableness of the conduct
depends on both the conduct itself and the circum-
stances in which the conduct occurs. Biddle v. Martin,
992 F.2d 673, 677 (7th Cir. 1993). But the conduct at
issue need not occur in the public square to threaten to
provoke or to provoke a breach of the peace. See
People v. Davis, 413 N.E.2d 413, 415 (Ill. 1980).
The Illinois Supreme Court has explained that the
offense of disorderly conduct “is intended to guard
against ‘an invasion of the right of others not to be mo-
lested or harassed, either mentally or physically, without
justification.’ ” Id. (citation omitted); see also Reher v.
Vivo, 656 F.3d 772, 777 (7th Cir. 2011) (“An arrest for
disorderly conduct is justified when the defendant
directly harasses or threatens other people.” (citation
omitted)). Deputy Sweeney reasonably could have con-
cluded that Travis “molested or harassed” the animal
control officers when he threatened to thump them if
they succeeded in capturing Biscuit and that his vulgar
threats and childish antics were unreasonable and threat-
ened to provoke a breach of the peace. See Davis, 413
N.E.2d at 415-16 (defendant committed disorderly
conduct by entering woman’s home, waiving sheets of
paper at her, and telling her that if her complaint were
prosecuted he would carry out undefined threat); In re
D.W., 502 N.E.2d 419, 420-22 (Ill. App. Ct. 1986) (juvenile’s
statement to another juvenile that he was going to “kick
his ass” constituted disorderly conduct); see also Sroga
v. Weiglen, 649 F.3d 604, 606-07 (7th Cir. 2011) (probable
cause to arrest for disorderly conduct where plaintiff
jumped on top of car as it was being towed); Biddle, 992
No. 12-1121 21
F.2d at 677-78 (probable cause to arrest for disorderly
conduct where plaintiff drunkenly had been screaming
profanities and making violent arm gestures).
Travis contends, however, that his actions neither
threatened to provoke nor actually provoked a breach
of the peace. He relies on People v. Trester, 421 N.E.2d
959 (Ill. App. Ct. 1981), in which the court reversed a
defendant’s disorderly conduct conviction on the
ground that the defendant’s statement to a police offi-
cer—that if the officer “would take off his gun and
badge, he, defendant, would punch [the officer] in the
nose and they would fight,” id. at 960—was “couched in
terms of what might happen” and thus could not “be
construed as an immediate threat,” id. at 961. In effect,
Travis makes an immediacy argument similar to that
he made above, and just as before, this argument fails.
Unlike Trester, in which the threat was contingent on
the highly unlikely event that the officer would take off
his gun and badge to rumble with the defendant,
Travis’s threat was contingent on the animal control
officers successfully performing their official duty, cap-
turing Biscuit. Cf. Humphrey v. Staszak, 148 F.3d 719,
728 (7th Cir. 1998) (“If an officer has reasonable grounds
to believe that further trouble will ensue, he need not
wait for the trouble to erupt, but may take lawful steps
to prevent the problem.”). Moreover, Trester has been
called into question by the court that rendered it. In re
D.W., 502 N.E.2d at 422.
In any event, we are not concerned with whether
Travis could have been convicted but only with whether
Sweeney had probable cause to arrest him. See Sroga,
22 No. 12-1121
649 F.3d at 610 (“And ‘to form a belief of probable cause,
an arresting officer is not required . . . to act as a judge or
jury to determine whether a person’s conduct satisfies
all of the essential elements of a particular statute.’ ”
(citation omitted)). As indicated above, Sweeney had
probable cause to arrest Travis for disorderly conduct;
but even if he did not, he would be cloaked with
qualified immunity because at the very least he had
arguable probable cause. The most that Travis has estab-
lished is that there is a conflict between In re D.W. and
Trester. Therefore, even if we were inclined to find
on this record that Sweeney did not actually have
probable cause to arrest Travis for disorderly conduct
(and we are not so inclined), Sweeney would be entitled
to qualified immunity because a reasonable person
could have reasonably concluded that there was
probable cause based on the holding of In re D.W.,
502 N.E.2d at 420-22. See Thayer, ___ F.3d at ___, 2012 WL
6621169, at *6 (“ ‘Qualified immunity protects police
officers who reasonably interpret an unclear statute.’ ”
(brackets omitted) (quoting Mustafa, 442 F.3d at 549)).
Deputy Sweeney had probable cause to arrest Travis
for assault and for disorderly conduct. Therefore, the
district court did not err in granting summary judgment
for Deputy Sweeney on Travis’s false-arrest and false-
imprisonment claims.
2
Whether there was probable cause to arrest Cindy is
a closer question. Sweeney maintains that he had probable
No. 12-1121 23
cause to arrest her for obstructing or resisting a peace
officer. See 720 ILCS 5/31-1(a) (“A person who
knowingly resists or obstructs the performance by
one known to the person to be a peace officer . . . of any
authorized act within his official capacity commits a
Class A misdemeanor.”). The district court agreed, con-
cluding that there was probable cause that Cindy had
attempted to help Travis escape and that she had
also resisted arrest. Alternatively, Sweeney contends,
and the district court also agreed, that he had arguable
probable cause to arrest Cindy and is therefore cloaked
with qualified immunity.
(i)
The district court’s brief probable-cause analysis
seems to have hinged on what it viewed as the
following undisputed facts: Cindy was “running” toward
Sweeney’s squad car screaming while Travis was
“going nuts” in the back seat of the squad car, and
“Deputy Sweeney thought Cindy was trying to help
Travis escape.” The district court’s analysis is flawed
for several reasons. First, Cindy testified in her deposition
that she was walking, not running, so viewing the facts in
her favor, as we must, her outward conduct was not as
aggressive as Sweeney’s narrative suggests. Second, it is
wholly irrelevant that Sweeney subjectively thought
Cindy was trying to help Travis escape because the
probable-cause inquiry concerns not what the officer
actually believed but what a reasonable person in the
officer’s shoes would have believed. See, e.g., Devenpeck,
24 No. 12-1121
543 U.S. at 154-55; Whren, 517 U.S. at 813. (It is likewise
irrelevant that Cindy’s subjective intent was to move
toward her own vehicle and not the squad car, as she
does not dispute that the squad car was in between her
and her vehicle.) Finally, and most importantly, the
district court failed to consider the totality of the circum-
stances known to Sweeney at the time, focusing instead
on only a small part of the overall picture. Cf. Fox, 600
F.3d at 834 (officers cannot close their eyes to informa-
tion that cuts against probable cause).
Viewing all the facts in Cindy’s favor without regard
to the parties’ subjective beliefs, a jury could conclude
that no reasonable person could have believed Cindy
was attempting to spring Travis. Recall that Cindy was
instrumental in effectuating Travis’s arrest; at Sweeney’s
request, she went into the house and persuaded Travis
to come outside, thereby saving Sweeney from having
to obtain an arrest warrant, see Payton v. New York, 445
U.S. 573, 576 (1980). Cindy did not put up a fuss
when Travis was handcuffed and instead went inside
to use the restroom. She became excited only after
Sweeney backed into her vehicle, at which point she
began screaming, “I can’t believe you hit my vehicle!” She
then “walked” toward the driver’s side of the squad car
as Sweeney was attempting to go to the passenger’s side
of the squad car to secure Travis. There was at least
one other police officer on-scene, not to mention several
animal control officers. And though not mentioned by
either party, the record also demonstrates that Cindy
was a petite woman, whereas Sweeney was a man of
somewhat generous proportions, testifying that he
No. 12-1121 25
was 5'9" and 275 pounds at the time of his deposition. It
is true that Travis was acting wildly in the backseat,
but it is also true that, moments before, he had been
yelling and cursing at Cindy. On this record, there are
sufficient questions of fact upon which a jury could
find that Sweeney lacked probable cause to arrest Cindy
for attempting to help Travis escape.
The district court also concluded that Sweeney had
probable cause to arrest Cindy for resisting arrest, based
on the undisputed facts that she ignored Sweeney’s
order to stop and then ignored his order to get down
on her stomach. As an initial matter, this account does
not adequately consider Cindy’s version of the incident
by suggesting that Cindy was standing up when first
ordered “to get down on her stomach”; her testimony
(and Sweeney’s) indicates that she was not ordered to
get on her stomach until after being dropped to the
ground by the first shot from the taser. More im-
portantly, the district court failed to pinpoint the
moment at which Sweeney arrested or attempted to
arrest Cindy, which is necessary to determine
whether her actions constituted resisting arrest. See
People v. Agnew-Downs, 936 N.E.2d 166, 173-74, 176 (Ill.
App. Ct. 2010).
An arrest, of course, is the archetypical “seizure” of a
person under the Fourth Amendment. California v.
Hodari D., 499 U.S. 621, 624 (1991). A person is “seized”
when his or her freedom of movement is terminated
or restrained by intentionally applied physical force or
submission to an assertion of authority. Id. at 626; see
26 No. 12-1121
also Brendlin v. California, 551 U.S. 249, 254 (2007); Brower
v. County of Inyo, 489 U.S. 593, 597 (1989). A seizure rises
to the level of an arrest “when a reasonable person in
the suspect’s position would have understood the
situation to constitute a restraint on freedom of move-
ment of the degree which the law associates with formal
arrest.” Ochana v. Flores, 347 F.3d 266, 270 (7th Cir. 2003)
(internal quotation marks and citation omitted). To deter-
mine if a seizure, including an arrest, has occurred,
courts engage in an objective inquiry that presupposes
an innocent person. United States v. Drayton, 536
U.S. 194, 202 (2002); Florida v. Bostick, 501 U.S. 429, 437-
38 (1991).
It is clear that when Sweeney deployed his taser into
Cindy’s abdomen and zapped her with electricity, her
freedom of movement was restrained to a degree that
the law associates with formal arrest; so at that point
she was arrested. See, e.g., Brooks v. City of Aurora, Ill.,
653 F.3d 478, 484 (7th Cir. 2011) (successful seizure oc-
curred when arrestee was incapacitated by pepper
spray). But was she arrested before then? Whether she
ran, walked, sauntered, or moseyed, it is undisputed
that Cindy approached Sweeney’s position. Sweeney
claims that he ordered her to halt before shooting her
with his taser, and this too is undisputed because Cindy
does not remember one way or the other. This order,
however, did not constitute an arrest as it was an asser-
tion of authority to which Cindy did not submit. See
Hodari D., 499 U.S. at 629. Thus, Cindy was not under
arrest before she was shot with the taser.
No. 12-1121 27
Furthermore, Cindy’s alleged defiance of Sweeney’s
order to halt did not constitute resistance of an at-
tempted arrest. Suppose Cindy had obeyed Sweeney’s
order and had stopped in her tracks—she would not
have been deemed arrested or even seized at that point
for the reason that Sweeney’s order sought to prevent
her from coming rather than going, that is, she was free
to go anywhere in the world except closer to the squad
car. See United States v. Mendenhall, 446 U.S. 544, 554
(1980) (opinion of Stewart, J.) (“We conclude that a
person has been ‘seized’ within the meaning of the
Fourth Amendment only if, in view of all of the circum-
stances surrounding the incident, a reasonable person
would have believed that he was not free to leave.” (empha-
sis added)); see also Michigan v. Chesternut, 486 U.S. 567,
573 (1988). And even if she would not have felt free
to leave the driveway—it was, after all, her home and
a handful of strangers were present—a reasonable
person in her position would have felt free to terminate
the encounter by walking away. See, e.g., Drayton, 536
U.S. at 202 (explaining that if a person does not feel free
to leave for reasons unrelated to the officer’s presence,
the inquiry shifts to whether a reasonable person under
the circumstances would feel free to terminate the en-
counter with the officer). Indeed, a jury might conclude
that under the circumstances Sweeney was really just
trying to avoid a confrontation with Cindy over a
collateral matter so that he could attend to what quite
sensibly he viewed as the more important task, securing
his prisoner. A jury could reasonably determine that, at
the time he first deployed his taser, Sweeney lacked
28 No. 12-1121
probable cause to arrest Cindy for resisting arrest, inas-
much as there had been no arrest or attempted arrest
prior to that point.
The district court also concluded that Cindy resisted
arrest by failing to turn over onto her stomach. This
alleged resistance occurred between the first and second
jolts from the taser, so if this constitutes resisting arrest
it was resistance of an unlawful arrest (based on our
analysis up to this point). Illinois law is clear that a
person violates section 5/31-1(a) if he or she resists
or obstructs even an unlawful arrest made by a
known peace officer. Brooks, 653 F.3d at 484; see 720
ILCS 5/7-7; People v. Villarreal, 604 N.E.2d 923, 926-28
(Ill. 1992). The effect of this rule on a § 1983 false-
arrest claim was considered in a case where an officer
went to the arrestee’s home to arrest him pursuant to
an allegedly unlawful warrant, and when the officer
grabbed the arrestee’s wrist to handcuff him, he broke
free from the officer’s grasp and began backpedaling,
thereby prompting the officer to use pepper spray to
subdue him. Brooks, 653 F.3d at 481-82, 485. We held
that there was no need to determine whether the
warrant had been obtained based on fabricated evi-
dence “because, at the time [the arrestee] was seized,
the officers had probable cause to arrest him for
resisting a peace officer.” Id. at 485. Critical to our
analysis was the fact that the arrestee had avoided the
officer’s first attempt at a seizure by escaping the
officer’s initial grasp—this brief initial grasp was not
sufficient to constitute an actual seizure because it did
not significantly detain the arrestee. Id.; see also Hodari D.,
No. 12-1121 29
499 U.S. at 624-26 (seizure by physical force occurs where
officer lays hands on suspect or otherwise applies
physical force to restrain suspect’s movement, even if
suspect breaks free). The arrest occurred when the
arrestee was subdued with pepper spray, and the
arrestee’s conduct up to that point provided probable
cause to arrest him for resisting arrest. Brooks, 653 F.3d
at 484-85. In the present case, however, Cindy remained
in the clutches of the taser prongs continuously
from the first jolt through the second jolt. The shot and
accompanying first jolt of electric current was not a
failed attempt at a seizure or a temporary seizure but a
successful seizure that was not broken until later that
night when Cindy walked out of jail. Unlike Brooks,
where the probable-cause determination was made with
reference to the second (and successful) attempted
seizure, here the probable-cause determination must be
made with reference to the first (and successful) attempt
at a seizure, the initial deployment of the taser. And, as
explained above, there was no probable cause at that
time to justify arresting Cindy for resisting arrest.
(ii)
Up to this point, we have constrained our analysis to
the framework employed by the district court and have
examined only whether Sweeney had probable cause
that Cindy was committing obstruction by trying to help
Travis escape or resisting arrest. The district court’s
analysis of Cindy’s false-arrest claim was abbreviated,
likely because the parties’ submissions themselves
30 No. 12-1121
were scanty. The parties’ lack of supporting case law is
troubling because, as will soon be clear, this is not the
first time that this court has been presented with a § 1983
false-arrest claim in which the defendant(s) claims
that there was either probable cause or arguable prob-
able cause to arrest the plaintiff for violating 720 ILCS 5/31-
1(a); additionally, there is a considerable body of
Illinois case law interpreting and applying this statute.
To avoid misconstruing Illinois law, we will consider
Cindy’s false-arrest claim in the context of this case law.
Section 5/31-1(a) proscribes a vast array of conduct,
not just attempting to spring someone from custody or
resisting arrest. Specifically, a person commits obstruc-
tion or resistance of a peace officer when, (1) knowing
that one is a peace officer, (2) he or she knowingly
resists or obstructs (3) the officer’s performance of an
authorized act. 720 ILCS 5/31-1(a); see Agnew-Downs, 936
N.E.2d at 174-76. The Illinois Supreme Court has held
that section 5/31-1(a) does “not proscribe mere
argument with a policeman about the validity of an
arrest or other police action, but proscribe[s] only
some physical act which imposes an obstacle which
may impede, hinder, interrupt, prevent[,] or delay the
performance of the officer’s duties, such as going limp,
forcefully resisting arrest[,] or physically aiding a third
party to avoid arrest.” People v. Raby, 240 N.E.2d 595, 599
(Ill. 1968) (internal quotation marks and citation omit-
ted); see People v. Weathington, 411 N.E.2d 862, 863-64 (Ill.
1980); see also Jones v. Clark, 630 F.3d 677, 684-85 (7th
Cir. 2011) (no arguable probable cause to arrest meter
reader because there was no physical act); Shipman v.
No. 12-1121 31
Hamilton, 520 F.3d 775, 779 (7th Cir. 2008) (no probable
cause where nurse never physically resisted officer);
Williams v. Jaglowski, 269 F.3d 778, 781-83 (7th Cir. 2001)
(no arguable probable cause where plaintiff merely
refused to give officers her identifying information). 2
In view of the Raby standard, the inquiry here is whether
at the time of the arrest a reasonable police officer
could have believed that Cindy had undertaken (or
was about to undertake) a physical act which imposed
2
Raby held that both resisting and obstructing a peace
officer require a physical act. 240 N.E.2d at 599 (noting that the
terms “resist” and “obstruct” “are alike in that they imply
some physical act or exertion”). But in a recent decision, the
Illinois Supreme Court held that “obstructing a peace officer
under section 31-1(a) . . . does not necessitate proof of a
physical act, and that providing false information may
constitute obstruction under section 31-1(a) when the misin-
formation interposes an obstacle that impedes or hinders
the officer and is relevant to the performance of his
authorized duties.” People v. Baskerville, 963 N.E.2d 898, 906 (Ill.
2012). In doing so, the court explained that “ ‘resist’ implies
some type of physical exertion in relation to the officer’s
actions,” id. at 905-06, but, “[a]lthough a person may commit
obstruction of a peace officer by means of a physical act, this
type of conduct is neither an essential element of nor the
exclusive means of committing an obstruction,” id. at 905
(emphases added). We express no opinion on the import of
this decision because it was decided almost five years after
the conduct in this case occurred (and thus could not have
been known by a reasonable person in Deputy Sweeney’s
position).
32 No. 12-1121
an obstacle that impeded, hindered, interrupted, pre-
vented, or delayed Sweeney’s performance of his autho-
rized acts.
Though capable of being stated succinctly, the Raby
standard for determining whether section 5/31-1(a)
has been violated has often proved difficult in applica-
tion. Perhaps the most straightforward cases of a
statutory violation are those in which a person physi-
cally scuffles with a police officer performing his or her
official duties or attempts to elude the police. See, e.g.,
People v. Holdman, 383 N.E.2d 155, 159 (Ill. 1978); Raby,
240 N.E.2d at 597, 602; Agnew-Downs, 936 N.E.2d at 176.
At the other end of the spectrum, the cases in which
the statute is not violated, are those involving only
verbal argument, e.g., Jones, 630 F.3d at 684-85; Shipman,
520 F.3d at 779; People v. McCoy, 881 N.E.2d 621, 630-
32 (Ill. App. Ct. 2008), refusal to identify oneself, e.g.,
Williams, 269 F.3d at 781-83; Weathington, 411 N.E.2d at
863-64, and refusal of officers’ request to enter where
they have no right to do so, e.g., People v. Cope, 701 N.E.2d
165, 169-71 (Ill. App. Ct. 1998); People v. Hilgenberg, 585
N.E.2d 180, 183-86 (Ill. App. Ct. 1991).
The greatest difficulty lies in determining the point at
which mere verbal argument or refusal to act becomes
an act of physical resistance or obstruction. See People v.
Ostrowski, 914 N.E.2d 558, 571 (Ill. App. Ct. 2009)
(“Passive acts that impede an officer’s ability to perform
his duties, such as repeatedly refusing an officer’s order
to exit a vehicle, may also violate section 31-1(a).”);
McCoy, 881 N.E.2d at 637 (McDade, J., concurring in
No. 12-1121 33
part and dissenting in part) (“While section 31-1 does
require an individual to comply with a peace officer’s
authorized actions, it does not call for complete and
immediate submission.”). Compare Sroga, 649 F.3d at 608
(“Although merely arguing with a police officer does
not violate the statute, [plaintiff] both times went
beyond argument by refusing to desist from behavior
that was obstructing the efforts of the police to enable
his car to be towed.” (internal citations omitted)), City
of Chicago v. Meyer, 253 N.E.2d 400, 402-03 (Ill. 1969)
(affirming conviction where defendant refused to obey
lawful order of dispersal after protest got out of
hand), People v. Gordon, 948 N.E.2d 282, 287-88 (Ill. App.
Ct. 2011) (affirming conviction where defendant re-
fused lawful dispersal order and instead yelled
profanities and threats at officers, while his cohort, who
had been arrested, attempted to escape), and People v.
Martinez, 717 N.E.2d 535, 538-39 (Ill. App. Ct. 1999) (proba-
ble cause to arrest where arrestee stood between
officer and motorist that officer was attempting to
question and where officer was unable to concentrate
on questioning due to concern over arrestee’s proxim-
ity), with Gonzalez v. City of Elgin, 578 F.3d 526, 538 (7th
Cir. 2009) (“The [district] court thought that probable
cause existed because each of these plaintiffs approached
the defendant officers while those officers were at-
tempting to arrest another of the plaintiffs. But, without
more evidence, there is nothing wrong in itself with
approaching a police officer.”), People v. Kotlinski, 959
N.E.2d 1230, 1238-40 (Ill. App. Ct. 2011) (reversing con-
viction where defendant exited vehicle; officers ordered
34 No. 12-1121
him back into vehicle; defendant complied 21 seconds
later; and total elapsed time defendant was not in
vehicle was 47 seconds), People v. Berardi, 948 N.E.2d 98,
103-04 (Ill. App. Ct. 2011) (reversing conviction where
defendant had refused to leave private office space
in public building and instead had argued that he had
authority to be there; dispute lasted only a short time
and defendant then complied with officer’s request), and
People v. Stoudt, 555 N.E.2d 825, 827-28 (Ill. App. Ct.
1990) (charges dismissed where defendants refused offi-
cer’s dispersal order).
The kerfuffle here falls somewhere in this middle
ground. Cindy did not flee or physically clash with Swee-
ney, but along with arguing and yelling she did not
comply with his order to stop approaching. Reasonable
minds could differ as to whether Cindy’s conduct was
more like that involved in cases like Meyer, 253 N.E.2d
at 402-03 (refusal to disperse), Gordon, 948 N.E.2d at 287-
88 (refusal to disperse and threatening officers while
cohort attempting to escape), and Martinez, 717 N.E.2d
at 538-39 (physical proximity interfered with officer’s
questioning of third party), and therefore violated
section 31-1(a), or whether it was more akin to the
conduct involved in cases like Gonzalez, 578 F.3d at 538
(nothing inherently wrong with approaching officers while
they were attempting to arrest others), Kotlinski, 959
N.E.2d at 1238-40 (incident occurred over less than a
minute), Berardi, 948 N.E.2d at 103-04 (refused officer’s
order to leave office building and kept arguing), or
Stoudt, 555 N.E.2d at 827-28 (refusal to disperse when
ordered), and therefore not a crime.
No. 12-1121 35
But we need not determine whether there was
probable cause, for the simple fact that reasonable
minds could differ as to the meaning of the law leads to
the conclusion that Sweeney is shielded by qualified
immunity. See Hunter, 502 U.S. at 229 (“The qualified
immunity standard ‘gives ample room for mistaken judg-
ments’ by protecting ‘all but the plainly incompetent
or those who knowingly violate the law.’ ” (quoting
Malley, 475 U.S. at 341, 343)); Thayer, ___ F.3d at ___, 2012
WL 6621169, at *6 (“ ‘Qualified immunity protects
police officers who reasonably interpret an unclear stat-
ute.’ ” (brackets omitted) (quoting Mustafa, 442 F.3d at
549)). Once a defendant raises the defense of qualified
immunity, the plaintiff bears the burden of defeating it
either by identifying a closely analogous case or by per-
suading the court that the conduct is so egregious and
unreasonable that, notwithstanding the lack of an analo-
gous decision, no reasonable officer could have thought
he was acting lawfully. E.g., Wheeler v. Lawson, 539 F.3d
629, 639 (7th Cir. 2008). Cindy has done neither. Therefore,
the district court did not err in granting summary judg-
ment to Sweeney on Cindy’s false-arrest and false-impris-
onment claims.
B
Although fatal to the Abbotts’ false-arrest and false-
imprisonment claims, the existence of probable cause (or
arguable probable cause) to arrest does not affect their
excessive-force claims, given that the reasonableness of
an arrest or other seizure under the Fourth Amendment
depends not only on when it is made but also on how it
36 No. 12-1121
is made, see Tennessee v. Garner, 471 U.S. 1, 7-8 (1985).
Put differently, even when an officer has probable cause
to arrest, the Fourth Amendment prohibits him from
employing “ ‘greater force than [is] reasonably necessary
to make the arrest.’ ” Gonzalez, 578 F.3d at 539 (quoting
Lester v. City of Chicago, 830 F.2d 706, 713 (7th Cir. 1987)).
A claim that an officer employed excessive
force in arresting a person is evaluated under the
Fourth Amendment’s objective-reasonableness standard.
Scott v. Harris, 550 U.S. 372, 381 (2007); Brosseau v.
Haugen, 543 U.S. 194, 197 (2004) (per curiam); Graham
v. Connor, 490 U.S. 386, 388, 395 (1989); Garner, 471 U.S. at
7-12. The reasonableness standard is incapable “of
precise definition or mechanical application.” Graham,
490 U.S. at 396 (quoting Bell v. Wolfish, 441 U.S. 520, 559
(1979)). It requires courts to “ ‘balance the nature
and quality of the intrusion on the individual’s Fourth
Amendment interests against the importance of the
governmental interests alleged to justify the intrusion.’ ”
Scott, 550 U.S. at 383 (brackets omitted) (quoting
United States v. Place, 462 U.S. 696, 703 (1983)).
In judging the reasonableness of any particular use of
force, we consider factors such as the severity of the
crime, whether the arrestee poses an immediate threat
to the safety of the officers or others, and whether he or
she is actively resisting arrest or attempting to flee
and evade arrest. Graham, 490 U.S. at 396; Abdullahi v. City
of Madison, 423 F.3d 763, 768 (7th Cir. 2005). The reason-
ableness of the force used depends on the totality of
the facts and circumstances known to the officer at the
No. 12-1121 37
time the force is applied. Garner, 471 U.S. at 8-9; Phillips
v. Cmty. Ins. Corp., 678 F.3d 513, 519 (7th Cir. 2012). It is
an objective inquiry, the dispositive question being
“ ‘whether, in light of the facts and circumstances that
confronted the officer (and not 20/20 hindsight),
the officer behaved in an objectively reasonable man-
ner,’ ” Padula v. Leimbach, 656 F.3d 595, 602 (7th Cir. 2011)
(quoting McAllister v. Price, 615 F.3d 877, 881 (7th Cir.
2010)), irrespective of the officer’s underlying intent or
motivation. See Graham, 490 U.S. at 397; Bell v. Irwin,
321 F.3d 637, 640 (7th Cir. 2003). In answering this ques-
tion, we remain cognizant of “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 397. As a
result, we “give considerable leeway to law enforcement
officers’ assessments about the appropriate use of force
in dangerous situations.” Baird v. Renbarger, 576 F.3d
340, 344 (7th Cir. 2009).
Qualified immunity, in effect, affords enhanced defer-
ence to officers’ on-scene judgments about the level of
necessary force. See Saucier, 533 U.S. at 204-05. This is
so because, even if the plaintiffs demonstrate that
excessive force was used, they must further establish
that it was objectively unreasonable for the officer to
believe that the force was lawful—i.e., they must demon-
strate that the right to be free from the particular use
of force under the relevant circumstances was “clearly
established.” See, e.g., al-Kidd, 131 S. Ct. at 2080. A con-
stitutional right is “clearly established” for qualified-
38 No. 12-1121
immunity purposes where “[t]he contours of the right
[are] sufficiently clear that a reasonable official would
understand that what he is doing violates that right.”
Anderson, 483 U.S. at 640; see also United States v. Lanier, 520
U.S. 259, 270 (1997); Estate of Escobedo v. Bender, 600 F.3d
770, 779 (7th Cir. 2010). “In other words, ‘existing prece-
dent must have placed the . . . constitutional question
beyond debate.’ ” Reichle v. Howards, 132 S. Ct. 2088, 2093
(2012) (quoting al-Kidd, 131 S. Ct. at 2083).
Travis and Cindy both limit their excessive-force
claims to Deputy Sweeney’s use of his taser on them.
Before addressing the merits of their contentions on
appeal, it is useful to pin down the quantum of force
exacted by Sweeney’s taser, which represents the
nature and significance of the governmental intrusion on
their Fourth Amendment interests. See Phillips, 678 F.3d
at 521; Deorle v. Rutherford, 272 F.3d 1272, 1279 (9th Cir.
2001). Although Deputy Sweeney used the same device,
a model X26 Taser,3 on both Cindy and Travis, he did
not employ it in the same manner—he used the taser in
dart mode on Cindy and in drivestun mode on Travis. In
dart mode, the X26 uses compressed nitrogen to propel
two “probes” toward the target at somewhere between
160 and 180 feet per second. The probes are aluminum
darts tipped with steel barbs and are connected to the
device by insulated wires, which are about twenty-five
3
For an explanation of the origin of the term “Taser,” see, for
example, Cockrell v. City of Cincinnati, 468 F. App’x 491, 492
n.3 (6th Cir. 2012).
No. 12-1121 39
feet in length. Once the probes strike the target, the
officer pulls the trigger and the device delivers 50,000
volts of electric current, but the amount of voltage
that enters the target’s body is closer to 1200 volts. These
high-voltage electric waves “overpower the normal
electrical signals within the [target’s] nerve fibers”; they
“override the central nervous system[ ] and take[ ] direct
control of the skeletal muscles.” “The impact is as
powerful as it is swift. The electrical impulse instantly
overrides the victim’s central nervous system, paralyzing
the muscles throughout the body, rendering the target
limp and helpless.” Bryan v. MacPherson, 630 F.3d 805,
824 (9th Cir. 2010) (footnotes omitted) (same model); see
also Draper v. Reynolds, 369 F.3d 1270, 1273 n.3 (11th
Cir. 2004) (similar description of the model M26 Taser).
In drivestun mode, however, the officer does not fire
probes at the target but instead presses the device’s
electrodes directly to the target’s body and pulls the
trigger to deliver the electric current. When utilized in
this manner, the X26 does not override the target’s
central nervous system. See Brooks v. City of Seattle, 661
F.3d 433, 443 (9th Cir. 2011) (en banc) (same model), cert.
denied sub nom. Daman v. Brooks, 132 S. Ct. 2681, and
cert. denied, 132 S. Ct. 2682 (2012). Rather, it “becomes
a pain compliance tool with limited threat reduction.”
This court has acknowledged that “one need not have
personally endured a taser jolt to know the pain that
must accompany it,” Lewis v. Downey, 581 F.3d 467, 475
(7th Cir. 2009), and several of our sister circuits have
likewise recognized the intense pain inflicted by a taser,
see, e.g., Bryan, 630 F.3d at 824 (“The tasered person
40 No. 12-1121
also experiences an excruciating pain that radiates
throughout the body.”); Hickey v. Reeder, 12 F.3d 754,
757 (8th Cir. 1993) (“[A] stun gun inflicts a painful and
frightening blow [that] temporarily paralyzes the large
muscles of the body, rendering the victim helpless.”); Orem
v. Rephann, 523 F.3d 442, 448 (4th Cir. 2008) (same). Ac-
cordingly, we have held that, even though it is gen-
erally nonlethal, the use of a taser “is more than a de
minimis application of force,” Lewis, 581 F.3d at 475, but
we have also acknowledged that the use of a taser, like
the use of pepper spray or pain-compliance techniques,
generally does not constitute as much force as so-called
impact weapons, such as baton launchers and beanbag
projectiles, Phillips, 678 F.3d at 521. The use of a taser,
therefore, falls somewhere in the middle of the nonlethal-
force spectrum. See Bryan, 630 F.3d at 826 (describing
the X26 in dart mode as “an ‘intermediate or medium,
though not insignificant, quantum of force’ ” (citation
omitted)). Indeed, the Sangamon County Taser Policies
and Procedures and the Use of Force Scale place tasers
at an intermediate level of force, on par with pepper
spray. Cf. Tracy v. Freshwater, 623 F.3d 90, 98 (2d Cir.
2010) (“[I]nfliction of pepper spray on an arrestee has a
variety of incapacitating and painful effects, and, as
such, its use constitutes a significant degree of force.”
(internal citation omitted)). That said, when used in dart
mode, the X26 “intrudes upon the victim’s physiological
functions and physical integrity in a way that other non-
lethal uses of force do not. While pepper spray causes
an intense pain and acts upon the target’s physiology,
the effects of the X26 are not limited to the target’s eyes
No. 12-1121 41
or respiratory system.” Bryan, 630 F.3d at 825; cf. Oliver
v. Fiorino, 586 F.3d 898, 903-04 (11th Cir. 2009) (after
being tased at least eight times over a two-minute
period, decedent “died as a result of ‘ventricular
dysrhythmia in conjunction with Rhabdomyolisis’ as
a result of ‘being struck by a Taser’ ”).
1
Deputy Sweeney argues, and the district court held,
that he is entitled to qualified immunity on Travis’s
excessive-force claim because he did not violate clearly
established law. Alternatively, Sweeney contends that
use of the taser under the circumstances was reasonable
so there was no constitutional violation in the first
place. We need not examine whether Sweeney’s use of
the taser on Travis was reasonable because we agree
with the district court that use of the taser under these
circumstances did not violate clearly established law.
The facts viewed in Travis’s favor appear to show that,
as Sweeney was backing out of the driveway, Travis
was fidgeting around in the backseat and successfully
maneuvered his cuffed hands from behind his back to
the front of his body. In his submissions to both the
district court and this court, Travis does not dispute
that Sweeney’s squad car lacked a partition between the
front and back seats (though Travis testified otherwise
in his deposition). Travis also does not dispute that he
was “going nuts” in the backseat of the car when
Sweeney first encountered Cindy, though he does deny
42 No. 12-1121
unfastening his seatbelt and reaching for the door (but
how he maneuvered his cuffed hands around his body
with a seatbelt on is a mystery). After finishing with
Cindy, Travis continues, Sweeney opened the rear,
passenger-side door and got on top of Travis, “dropped
an elbow on [Travis’s] throat,” and began applying the
taser to Travis’s body in drivestun mode. And Travis
claims further that Sweeney pulled him from the car,
threw him on the ground, gave him “the knee bomb,”
and tased him three more times on his back. Travis
denies that he was acting wild when Sweeney came to
deal with him, but he admits that he “was trying to
fight with” Sweeney in the back of the police cruiser and
at one point was “out powering” the deputy. Neither
Travis nor Sweeney can recall the number of times the
taser was applied to Travis, but they seem to agree
that there were multiple applications of short duration
(Travis said “little second bursts”).
On appeal, Travis does not challenge Sweeney’s initial
use of the taser, arguing instead that Sweeney violated
clearly established law in tasing him multiple times
after he had been subdued by the first tasing. 4 Travis
4
Travis’s concession that the first tasing did not violate
clearly established law helps to resolve an ambiguity in his
deposition testimony. It is possible to view Travis’s testimony
to convey that the only fight he put up was to defend
himself against excessive force. And if that were so, our case
law holds that use of unnecessary force on one who resists
only that force can constitute excessive force. See Morfin v.
(continued...)
No. 12-1121 43
claims that the subsequent taser applications were exces-
sive because he had been subdued by the first tasing and
he was already handcuffed and in custody. See, e.g., Dye
v. Wargo, 253 F.3d 296, 298 (7th Cir. 2001). He marshals
three pepper-spray cases from other circuits to support
his position, but while those cases support the general
proposition that it is excessive to use such force on a
subdued suspect, the arrestees in those cases, unlike
here, were actually subdued. See Tracy, 623 F.3d at 98-99
(jury could find application of pepper spray to be unrea-
sonable where plaintiff claimed he had already been
handcuffed and was not resisting); Henderson v. Munn, 439
F.3d 497, 502-03 (8th Cir. 2006) (officer not entitled to
qualified immunity at summary judgment where jury
could find that he had applied pepper spray to
nonresisting plaintiff’s face while plaintiff was lying
on his stomach and handcuffed with his hands behind
his back); Vinyard v. Wilson, 311 F.3d 1340, 1347-49 (11th
Cir. 2002) (officer not entitled to summary judgment
where he had pulled over and applied pepper spray
while arrestee was yelling and arrestee had been
arrested for minor offenses, was handcuffed and secured
4
(...continued)
City of E. Chicago, 349 F.3d 989, 1005 (7th Cir. 2003) (reversing
summary judgment for officers where “[i]t was only after
the officers took [plaintiff] to the floor that [he] crossed his
arms on his chest to prevent the officers from handcuffing
him”). But as Travis has not challenged the initial use of the
taser on him, we do not view his testimony about fighting
with Sweeney to be so limited.
44 No. 12-1121
in backseat of police car, posed no threat to the officer
or herself, and there was a partition separating her
from the officer). Unlike the arrestees in these three
cases, even Travis admits that he continued fighting with
Sweeney after the first application of the taser, so he
was not subdued. And even though he was handcuffed,
he had moved his hands to the front of his body, which
allowed him to overpower Sweeney at times.
Courts generally hold that the use of a taser against an
actively resisting suspect either does not violate clearly
established law or is constitutionally reasonable. See
Clarett v. Roberts, 657 F.3d 664, 674-75 (7th Cir. 2011)
(affirming defense verdict where defendant used taser
three times on plaintiff when she blocked the doorway
to her son’s bedroom after several officers had entered
and defendant heard a commotion in the bedroom and
believed officers needed help; the second and third
tasings were deployed because plaintiff was kicking
and flailing and continuing assaultive behavior as defen-
dant was arresting her); United States v. Norris, 640 F.3d
295, 303 (7th Cir. 2011) (use of taser on defendant
was reasonable where defendant had “displayed an
unwillingness to accede to reasonable police com-
mands, and his actions suggested an intent to use
violence to fend off further police action”); Forrest v.
Prine, 620 F.3d 739, 745-46 (7th Cir. 2010) (affirming
summary judgment for officer on plaintiff’s Fourteenth
Amendment excessive-force claim, where plaintiff was
a large man in a confined area who was intoxicated,
defiant, belligerent, was clenching his fists and yelling
obscenities, and had attacked another officer earlier
No. 12-1121 45
that evening); see also Hagans v. Franklin Cnty. Sheriff’s
Office, 695 F.3d 505, 509-10 (6th Cir. 2012); Marquez v.
City of Phoenix, 693 F.3d 1167, 1175 (9th Cir. 2012); Hoyt
v. Cooks, 672 F.3d 972, 979-80 (11th Cir. 2012); McKenney v.
Harrison, 635 F.3d 354, 360 (8th Cir. 2011); Zivojinovich v.
Barner, 525 F.3d 1059, 1073 (11th Cir. 2008); Draper v.
Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004); Hinton v.
City of Elwood, Kan., 997 F.2d 774, 781 (10th Cir. 1993).
Insofar as Travis continued to resist after the first tasing,
Deputy Sweeney did not violate clearly established law
by using the taser in drivestun mode several more
times until Travis was subdued.
Furthermore, although Travis claims that Sweeney
pulled him from the car, threw him on the ground,
gave him “the knee bomb,” and tased him three more
times on his back, he does not contend that he had
ceased resisting or fighting with Sweeney at that point.
Indeed, it is undisputed that Sweeney used the taser
until Travis stopped fighting but did not use it there-
after, suggesting that Sweeney used no more force than
was necessary to gain control of the actively resisting
Travis. And even assuming that Travis had ceased
resisting prior to these last three tasings, Deputy Sweeney
reasonably could have believed that Travis had not
ceased resisting. See Brooks, 653 F.3d at 487 (“[C]ontrolling
law would not have communicated to a reasonable
officer the illegality of applying pepper spray to an
arrestee who has ceased active, physical resistance for
a couple of seconds but has not submitted to the
officer’s authority, has not been taken into custody and
still arguably could pose a threat of flight or further
46 No. 12-1121
resistance.”); see also Johnson v. Scott, 576 F.3d 658, 660
(7th Cir. 2009).
Thus, even viewing the facts in a light favorable to
Travis,5 Deputy Sweeney did not violate clearly estab-
lished law when he used his taser, so he is entitled to
qualified immunity.
5
Deputy Sweeney’s expert, Travis Dalby, testified that, taking
Travis’s deposition at face value, Sweeney’s use of the taser was
not warranted. When asked about this at oral argument, Swee-
ney’s counsel responded that the court cannot look just at
Travis’s testimony but must view all of the facts. While it is
true that summary judgment involves examination of all the
parties’ evidence, Fed. R. Civ. P. 56(c)(1), Sweeney misses
the point that on summary judgment any conflicts are
resolved against the moving party, so Dalby’s comment
might have been used to resist summary judgment for Swee-
ney. That said, Travis has never identified this portion of
Dalby’s testimony in any of his submissions to the district
court or to this court, see FTC v. Bay Area Bus. Council, Inc., 423
F.3d 627, 634 (7th Cir. 2005) (limiting review to adequately
supported facts in FTC’s Local Rule 56.1 statement), and
Travis has not given any reason as to why we should exer-
cise our discretion to look beyond the properly submitted
materials and consider other matters in the record, see Fed.
R. Civ. P. 56(c)(3) (“The court need consider only the cited
materials, but it may consider other materials in the record.”). In
point of fact, after oral argument Sweeney’s counsel sub-
mitted a letter to the court pursuant to Appellate Rule 28(j)
addressing this very issue, and Travis never submitted any-
thing to the contrary.
No. 12-1121 47
2
Cindy’s excessive-force claim again presents a closer
question. Cindy, like Travis, does not challenge the first
tasing on appeal. With regard to the second tasing,
Deputy Sweeney contends that he did not violate
clearly established law because Cindy failed to follow
his orders to roll over and then attempted to stand up.
But there is a factual dispute over whether Cindy at-
tempted to stand up or whether she did not move, and
we must view the facts in her favor. The district court
acknowledged that Cindy testified she was unable to
move, but it concluded that this was irrelevant because
the reasonableness of the force used is determined from
the officer’s perspective and there was no dispute that
Cindy failed to comply with Sweeney’s command.
(i)
The facts viewed in a light favorable to Cindy show that
Cindy became excited and upset when Sweeney backed
into her car. She began screaming about her car and
walking toward it to inspect the damage. Deputy
Sweeney interpreted her actions, perhaps unreasonably
(as previously noted), as her attempting to help Travis
escape, so he ordered her to stop but she kept walking.
As she was walking toward her vehicle she was, without
warning, shot with a taser in dart mode and fell to the
ground in immense pain. After she was on the ground,
Sweeney came closer and shouted orders for her to
turn over onto her stomach, but she did not comply
and did not move, so he zapped her again and then he
48 No. 12-1121
turned her over onto her stomach. The record is unclear
as to the duration of each tasing and the time between
the first and the second jolts.6
Because Cindy does not challenge the first tasing, we
assume without deciding that it was reasonable under
the Fourth Amendment or at least that a reasonable
officer could have believed that it was reasonable. But
the fact that an initial use of force may have been
6
The record contains an exhibit, attached to Sweeney’s dep-
osition transcript, that appears to be a printout of the date,
times, and duration of each trigger pull for an X26. This
exhibit indicates that on June 25, 2007, an X26 with serial
number X00-093461 was fired seven times between 12:17:40
and 12:19:14. Assuming that this is an accurate and complete
printout for the taser that Sweeney used on Cindy and Travis,
it indicates that Cindy was tased at 12:17:40 for 3 seconds
and at 12:17:50 for 6 seconds and that Travis was tased five
times between 12:18:00 and 12:19:14 for 5 seconds each time.
This, however, is mere conjecture because the record contains
no foundational evidence linking this exhibit to the taser
used by Sweeney or verifying that it is an accurate and
complete record. During Sweeney’s deposition, the Abbotts’
counsel asked him to explain this exhibit because counsel
did not know what it was; Sweeney responded, “I do not
[know] either.” And Sweeney’s expert, Travis Dalby, was
never asked about this exhibit. Perhaps this is why the parties
do not mention the exhibit in their submissions to this court.
Indeed, at oral argument, Sweeney’s counsel responded to
a question about the timing set forth in this exhibit by saying
that there was nothing in the record about the timing of
the tasings.
No. 12-1121 49
justified does not mean that all subsequent uses of
that force were similarly justified. See Phillips, 678 F.3d at
525-26. Rather, “[f]orce is reasonable only when exer-
cised in proportion to the threat posed, and as the threat
changes, so too should the degree of force. . . . It’s the
totality of the circumstances, not the first forcible act, that
determines objective reasonableness.” Cyrus v. Town of
Mukwonago, 624 F.3d 856, 863 (7th Cir. 2010) (citations
omitted).
The totality of the circumstances, when viewed in a
light favorable to Cindy, demonstrates that Sweeney’s
second application of the taser could be determined by a
jury to have been unreasonable. Cindy was shot in dart
mode both times, which caused her to lose control of
her skeletal muscles, a very significant intrusion on her
Fourth Amendment interests. See Bryan, 630 F.3d at 826;
Lewis, 581 F.3d at 475-76; see also Cavanaugh v. Woods Cross
City, 625 F.3d 661, 665 (10th Cir. 2010) (describing taser
fired in dart mode as a “quite severe” intrusion on
Fourth Amendment interests). And none of the three
Graham factors provide a justification for the second
tasing. As we explained earlier, Sweeney had arguable
probable cause to believe that Cindy had obstructed
a peace officer, a Class A misdemeanor, see 720 ILCS 5/31-
1(a), which is not a serious or violent crime. See
Cyrus, 624 F.3d at 863 & n.7 (criminal trespass, entry onto
construction site, or resistance or obstruction of peace
officer, were all misdemeanors under Wisconsin law
and thus minor); cf. Casey v. City of Fed. Heights, 509
F.3d 1278, 1281 (10th Cir. 2007) (lesser degree of force
reasonable when offense is minor and not committed
50 No. 12-1121
violently). Moreover, there is absolutely no evidence
that Cindy posed a threat to Sweeney, herself, or anyone
else, especially after the first tasing when she was lying
on her back on the ground and not moving. See Cyrus,
624 F.3d at 863. And although she did not comply
with Sweeney’s order to turn over onto her stomach
after the first tasing, she did not move and at most exhib-
ited passive noncompliance and not active resistance.
See Phillips, 678 F.3d at 527 (“Permitting substantial escala-
tion of force in response to passive non-compliance
would be incompatible with our excessive force
doctrine and would likely bring more injured citizens
before our courts.”); cf. Headwaters Forest Def. v. County
of Humboldt, 276 F.3d 1125, 1130 (9th Cir. 2002) (“[T]he
use of pepper spray ‘may be reasonable as a general
policy to bring an arrestee under control, but in a situa-
tion in which an arrestee surrenders and is rendered
helpless, any reasonable officer would know that a con-
tinued use of the weapon or a refusal without cause
to alleviate its harmful effects constitutes excessive
force.’ ” (emphasis and citation omitted)).
In short, there are no countervailing governmental
interests that come close to off-setting the substantial
intrusion on Cindy’s Fourth Amendment interests
exacted by the second tasing. Indeed, courts generally
hold that it is unreasonable for officers to deploy a taser
against a misdemeanant who is not actively resisting
arrest. See Cyrus, 624 F.3d at 862-63 (jury reasonably
could find the use of taser to be excessive: Cyrus’s disobe-
dience of officer’s commands could be interpreted in
several ways—e.g., a jury could conclude that his barrel-
No. 12-1121 51
roll down the driveway was an involuntary response
to being tased twice; Cyrus had committed at most a
misdemeanor under Wisconsin law; and there was abso-
lutely no evidence that Cyrus had violently resisted
the officer’s attempts to handcuff him); Lewis, 581 F.3d
at 473-79 (reversing summary judgment for officer
on presentencing detainee’s Fourteenth Amendment
excessive-force claim, evaluated under Eighth Amend-
ment standard, where detainee “was prone on his bed,
weakened, and docile” when ordered to get out of bed
and when he turned toward officers to explain that he
was too weak to get up he was shot with taser
without warning); Schneider v. Love, No. 09 C 3105, 2011
WL 635582, at *7 (N.D. Ill. Feb. 10, 2011) (“Although this
is a close case, on the facts assumed to be true, it was
unreasonable to continue to hit, kick, and tase plaintiff
after the first tasing. It should have taken only seconds
to realize plaintiff was subdued. It will be a fact
question for the jury as to when defendant should have
recognized plaintiff was subdued. Further tasing or
punching after that point would not be reasonable.”);
see also Austin v. Redford Twp. Police Dep’t, 690 F.3d 490, 496-
98 (6th Cir. 2012); Shekleton v. Eichenberger, 677 F.3d 361,
366 (8th Cir. 2012); Mattos v. Agarano, 661 F.3d 433, 448-52
(9th Cir. 2011), cert. denied, 132 S. Ct. 2682, and cert. denied,
132 S. Ct. 2684 (2012); Brooks v. City of Seattle, 661 F.3d at
443-46; Fils v. City of Aventura, 647 F.3d 1272, 1288-90 (11th
Cir. 2011); Bryan, 630 F.3d at 826-32; Cavanaugh, 625 F.3d at
665-66; Oliver, 586 F.3d at 905-07; Brown v. City of Golden
Valley, 574 F.3d 491, 496-98 (8th Cir. 2009); Parker v. Gerrish,
547 F.3d 1, 9-11 (1st Cir. 2008); Casey, 509 F.3d at 1282-83.
52 No. 12-1121
We are mindful that Deputy Sweeney acted in a
rapidly unfolding situation and that officers are to be
given leeway under those circumstances. But Sweeney
attempts to transform the circumstances into much
more than they really were. Although he reasonably
believed that Travis was attempting to escape, it is undis-
puted that Travis could not open the car door from
the inside. And had he escaped, it is unlikely he would
have gone far because Sergeant Lawley or the animal
control officers could have intercepted him—this is not
the case of a single officer attempting to control and
detain multiple suspects. Furthermore, Travis was not a
violent criminal who had been arrested for a violent
crime; rather, he simply had been acting foolishly,
albeit criminally. Because the Graham balance tips so
heavily in Cindy’s favor, we do not think that the
rapidly unfolding nature of these relatively innocuous
events tips the balance the other way. Cf. Deorle, 272
F.3d at 1281 (“A desire to resolve quickly a potentially
dangerous situation is not the type of governmental
interest that, standing alone, justifies the use of force
that may cause serious injury.”); accord Phillips, 678 F.3d
at 525.
(ii)
Although Cindy has made out a constitutional violation,
she must also show that the right that Sweeney violated
was clearly established on June 25, 2007, the date of the
incident. To determine whether a right is clearly estab-
lished we look to controlling precedent from both the
No. 12-1121 53
Supreme Court and this circuit, and if there is no
such precedent we cast a wider net and examine “all
relevant case law to determine ‘whether there was such a
clear trend in the case law that we can say with fair
assurance that the recognition of the right by a
controlling precedent was merely a question of time.’ ”
Phillips, 678 F.3d at 528 (quoting Estate of Escobedo, 600
F.3d at 781); see Pearson, 555 U.S. at 244 (officers were
entitled to rely on cases from other circuits even
though their own circuit had not yet addressed the
issue). Importantly, the right must be clearly established
in a particularized sense, rather than in an abstract or
general sense. Brosseau, 543 U.S. at 198; Anderson, 483
U.S. at 639-40. “But a case directly on point is not
required for a right to be clearly established and
‘officials can still be on notice that their conduct violates
established law even in novel factual circumstances.’ ”
Phillips, 678 F.3d at 528 (quoting Hope v. Pelzer, 536 U.S.
730, 741 (2002)); see, e.g., McDonald v. Haskins, 966 F.2d
292, 294 (7th Cir. 1992).
The Supreme Court has not addressed an excessive-
force claim based on the use of a taser and the most
analogous case from this circuit is Cyrus, which was
decided in 2010 and did not consider qualified immu-
nity. And although we cited several cases from
other circuits holding that officers had used excessive
force in deploying tasers under circumstances similar
to those here—a misdemeanant who is not actively re-
sisting—all of those cases were decided after June 25,
2007. The Ninth Circuit has held that the absence of any
case law involving tasers means that officers are entitled
54 No. 12-1121
to qualified immunity. See, e.g., Mattos, 661 F.3d at 452.
But, as the Sixth Circuit has explained, just as defining
a right too broadly may defeat the purpose of qualified
immunity, defining a right too narrowly may defeat the
purpose of § 1983. Hagans, 695 F.3d at 508-09. Moreover,
we have explained that “[e]very time the police employ
a new weapon, officers do not get a free pass to use it
in any manner until a case from the Supreme Court or
from this circuit involving that particular weapon is
decided.” Phillips, 678 F.3d at 528 (citing Sallenger v.
Oakes, 473 F.3d 731, 741-42 (7th Cir. 2007)).
Turning to the present case, we conclude that it was
clearly established on June 25, 2007, that it is unlawful to
deploy a taser in dart mode against a nonviolent
misdemeanant who had just been tased in dart mode
and made no movement when, after the first tasing, the
officer instructed her to turn over. Prior to 2007, it
was well-established in this circuit that police officers
could not use significant force on nonresisting or
passively resisting suspects. See, e.g., Morfin v. City of
E. Chicago, 349 F.3d 989, 1005 (7th Cir. 2003) (jury could
find that officers used excessive force in grabbing
plaintiff and throwing him to the floor, where plaintiff
had not been a threat to officers, was docile and coopera-
tive, and did not resist in anyway until the officers
applied unnecessary force); Payne v. Pauley, 337 F.3d 767,
779 (7th Cir. 2003) (not objectively reasonable for officer
to apply overly tight handcuffs, where arrestee was
not threatening to harm the police officer or anyone else
at the scene, was not resisting or evading arrest, was
not attempting to flee, and was charged with . . . minor
No. 12-1121 55
offenses”); Clash v. Beatty, 77 F.3d 1045, 1048 (7th Cir.
1996) (“It is clear . . . that police officers do not have the
right to shove, push, or otherwise assault innocent citizens
without any provocation whatsoever.”); Rambo v. Daley, 68
F.3d 203, 207 (7th Cir. 1995) (“The Constitution clearly does
not allow police officers to force a handcuffed, passive
suspect into a squad car by breaking his ribs.”). Rather,
only a minimal amount of force may be used on such
arrestees. See Smith v. Ball State Univ., 295 F.3d 763, 766, 770
(7th Cir. 2002) (not excessive force for officers to use
“straight arm bar” technique to remove nonresponsive
driver from automobile, where, although driver was not
actively resisting, officers reasonably believed him to be
intoxicated and behind the wheel of a running vehicle); see
also McAllister, 615 F.3d at 885-86 (distinguishing Smith).
It is true that Cindy had already been tased once when
the second taser jolt was delivered, and because she
does not challenge the initial jolt we assume without
deciding that the first tasing did not violate clearly estab-
lished law. But even so, it was well-established in 2007
that police officers cannot continue to use force once a
suspect is subdued. See, e.g., Dye, 253 F.3d at 298
(“shooting a disarmed and passive suspect is a clear
example of excessive force”); Henderson, 439 F.3d at 502-
03; Vinyard, 311 F.3d at 1347-49; cf. Ellis v. Wynalda, 999
F.2d 243, 247 (7th Cir. 1993) (“When an officer faces a
situation in which he could justifiably shoot, he does
not retain the right to shoot at any time thereafter
with impunity.”). And viewing the facts in Cindy’s
favor, there is no question that she was in fact subdued
56 No. 12-1121
by the first tasing—she immediately fell to the ground
and convulsed but made no movement after the first
tasing ended. Cf. Johnson, 576 F.3d at 660-61 (use of
police dog to subdue purportedly surrendering suspect
was objectively reasonable because it would not have
been clear to reasonable officer that suspect’s surrender
was genuine). In contrast to the situation posed by
Travis, no reasonable officer could have understood
Cindy’s conduct after the first tasing, as she describes it,
to be active physical resistance. Cf. Brooks, 653 F.3d at 487.
To be sure, an officer will not be held liable if the cir-
cumstances under which the force was used evolved so
rapidly that a reasonable officer would not have had
time to recalibrate the reasonable quantum of force. See,
e.g., Berube v. Conley, 506 F.3d 79, 85 (1st Cir. 2007) (officer
entitled to qualified immunity where on a dark, rainy
night she had “fired a fusillade in an emergency situa-
tion” at a large man running toward her with a
hammer raised in the air, and she had continued firing
after the man went to the ground, but the entire incident
lasted ten seconds); Hathaway v. Bazany, 507 F.3d 312, 321-
22 (5th Cir. 2007) (objectively reasonable for officer
to respond with deadly force in limited time avail-
able where vehicle he had stopped began accelerating
toward officer as he approached vehicle on foot). But this
is not such a case. Even Deputy Sweeney’s testimony
indicates that, after the first tasing ended, he approached
Cindy, ordered her to roll over, and then tased her
the second time because she did not roll over. Put differ-
ently, he did not squeeze the taser trigger a second
time because events unfolded so rapidly that he was
No. 12-1121 57
unable to appreciate that Cindy was subdued; he tased
her the second time because she did not comply with his
command to roll over. Cf. Brockington v. Boykins, 637
F.3d 503, 507 (4th Cir. 2011) (plaintiff stated plausible
excessive-force claim based on officer having shot him
multiple times after he had been incapacitated by first
shot, where there was time for officer to realize that
plaintiff had already been subdued by first shot).
Finally, several post-2007 decisions lend further
support to our conclusion that, on the facts viewed in
Cindy’s favor, Deputy Sweeney violated clearly
established law in applying the second taser jolt. In 2009,
we found that it had been clearly established in 2006
that a taser could not be used against a prone, weakened,
and docile prisoner who had been told to rise one time,
had not been warned that failure to comply would result
in use of a taser, and had been zapped before having
a chance to comply with the order to rise. Lewis, 581 F.3d
at 479. If it was clearly unlawful in 2006 to use a taser on
a moving prisoner who had been ordered to rise, then
it surely was clearly unlawful a year later to use a taser
on a noncompliant, nonmoving misdemeanor arrestee
who had already been immobilized by an initial taser
jolt. Cf. Bell v. Wolfish, 441 U.S. 520, 544-48 (1979) (dis-
cussing limitations on convicted prisoners’ and pretrial
detainees’ constitutional rights). And more recently, we
held that it was clearly established in 2005 that officers
could not repeatedly use an impact weapon to beat
into submission a person who was not resisting or was
merely passively resisting officers’ orders. Phillips, 678
F.3d at 528-29. Additionally, since 2007, many of our
58 No. 12-1121
sister circuits have found the use of a taser against nonvio-
lent, nonresisting misdemeanants to violate clearly estab-
lished law, the absence of taser case law notwithstand-
ing. See Austin, 690 F.3d at 498-99; Shekleton, 677 F.3d at
367; Fils, 647 F.3d at 1292; Oliver, 586 F.3d at 907-08;
Brown, 574 F.3d at 499; Casey, 509 F.3d at 1286.
In short, a genuine issue of material fact exists that
must be resolved by a jury, so summary judgment on
this claim was improper. Although the issue of qualified
immunity ordinarily should be resolved “ ‘at the earliest
possible stage in litigation,’ ” Saucier, 533 U.S. at 201
(citation omitted), this is one of the unusual cases
in which a definitive decision on the issue cannot be
had without further factual development, see, e.g., Estate
of Escobedo v. Martin, ___ F.3d ___, ___, No. 11-2426,
2012 WL 6199155, at *6 n.4, *13-17 (7th Cir. Dec. 13, 2012);
Warlick v. Cross, 969 F.2d 303, 305-10 (7th Cir. 1992).
III
For the foregoing reasons, we A FFIRM the district court’s
entry of judgment in Deputy Sweeney’s favor on all
of Travis Abbott’s claims and on Cindy Abbott’s
false-arrest and false-imprisonment claims, but we
V ACATE the judgment on Cindy’s excessive-force claim
and R EMAND for further proceedings.
1-29-13