Estate of Williams v. Indiana State Police Department

In the
United States Court of Appeals
For the Seventh Circuit
No. 14-2523
ESTATE OF WILLIAM E. WILLIAMS,
et al.,
Plaintiffs-Appellants,
v.
INDIANA STATE POLICE DEPARTMENT,
et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Southern District of Indiana, Terre Haute Division.
No. 2:12-cv-00324-JMS-DKL — Jane E. Magnus-Stinson, Judge.
2 Nos. 14-2523 & 14-2808
No. 14-2808
NANCY BROWN,
Plaintiff-Appellee,
v.
WAYNE BLANCHARD and WALWORTH
COUNTY, WISCONSIN,
Defendants-Appellants.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:13-cv-00511-LA — Lynn Adelman, Judge.
BOTH ARGUED JANUARY 20, 2015
BOTH DECIDED AUGUST 13, 2015
Before RIPPLE and ROVNER, Circuit Judges, and KENNELLY,
District Judge.*
ROVNER, Circuit Judge. We have consolidated for decision
these two appeals, heard on the same day, that present similar
issues of law relating to the reasonableness of force under the
Fourth Amendment. In both cases, family members called
police officers to their home because a family member had
*
The Honorable Matthew F. Kennelly, United States District Court for the
Northern District of Illinois, sitting by designation.
Nos. 14-2523 & 14-2808 3
locked himself in a room of his home and was threatening
suicide. The officers responded to the distress call, but in both
cases the situation tragically ended with the person’s death as
a result of shots fired by the officers. Although we will discuss
the facts in more detail later, the basic circumstances were as
follows. In the case on behalf of the estate of Williams, the
police officers were faced with a person, William E. Williams,
who had locked himself in a bathroom, had taken all the Xanax
left in a prescription bottle, and had cut himself and com-
plained that it was taking longer than expected for him to
bleed out. The officers had no good vantage point to see him in
the second floor bathroom, and he repeatedly threatened to kill
anyone who attempted to come into the bathroom. The officers
unlocked the bathroom door and fired tasers at Williams, but
those tasers had no effect. When Williams pursued the officers
with a knife, the officers shot and killed him. In the case
brought by Nancy Brown, John Brown had also cut himself,
and was locked in his bedroom although his mother had a key
and had come in and spoken with him. Officers could see him
through the bedroom window. Shortly after arriving, an officer
at the scene decided to kick the bedroom door in, and ulti-
mately he fatally shot John Brown who also possessed a knife.
On behalf of the deceased person, the plaintiffs in each case
brought suit against the officers pursuant to 42 U.S.C. § 1983,
alleging that the officers used excessive force in violation of the
Fourth Amendment when they effected the seizure.
I.
Because the Fourth Amendment explicitly addresses the
sort of physically intrusive government conduct that consti-
tutes a seizure, that amendment rather than generalized
4 Nos. 14-2523 & 14-2808
notions of substantive due process guides such claims.
Graham v. Connor, 490 U.S. 386, 395 (1989). In determining
whether the force used to effect a particular seizure is ‘reason-
able’ under the Fourth Amendment, we must balance the
nature and quality of the intrusion on the individual’s Fourth
Amendment interests against the importance of the govern-
mental interest alleged to justify the intrusion. Id. at 396;
Fitzgerald v. Santoro, 707 F.3d 725, 733 (7th Cir. 2013); Abbott v.
Sangamon County, Illinois, 705 F.3d 706, 724 (7th Cir. 2013). Such
an analysis is inherently fact-dependent, requiring consider-
ation of such factors as the severity of the crime at issue,
whether the person posed an immediate threat to the safety of
the officers or others, and whether the person was actively
resisting the officers. Graham, 490 U.S. at 396; Miller v. Gonzalez,
761 F.3d 822, 829 (7th Cir. 2014); Abbott, 705 F.3d at 724. In
assessing such a claim, however, we must remain cognizant of
the incredibly difficult task facing law enforcement officers
called to address fluid situations such as those presented in
these cases. Accordingly, the reasonableness of an officer’s
actions must be assessed from the perspective of a reasonable
officer on the scene, not based on the “20/20 vision of hind-
sight.” Graham, 490 U.S. at 396; Fitzgerald, 707 F.3d at 733; City
and County of San Francisco, California v. Sheehan, ___ U.S. ___,
135 S. Ct. 1765, 1775 (2015). That assessment must include a
recognition that officers are often forced to make split second
judgments in tense, uncertain, and rapidly evolving situations,
as to the amount of force necessary in a particular situation.
Graham, 490 U.S. at 396-97; Abbott, 705 F.3d at 724; Sheehan,
135 S. Ct. at 1775. We thus give considerable leeway to law
enforcement officers’ assessments regarding the degree of force
Nos. 14-2523 & 14-2808 5
appropriate in dangerous situations. Abbott, 705 F.3d at 724-25.
Throughout the analysis, the reasonableness inquiry is an
objective one, which examines whether the officer’s actions are
objectively reasonable in light of the totality of the facts and
circumstances confronting him or her, without regard for
consideration of the officer’s subjective intent or motivations.
Graham, 490 U.S. at 397; Miller, 761 F.3d at 828-29; Fitzgerald,
707 F.3d at 733. An officer’s use of force is unreasonable if in
light of all those circumstances at the time of the seizure, the
officer used greater force than was reasonably necessary to
effectuate the seizure. Id. “The Supreme Court further has
counseled that it is reasonable for a law enforcement officer to
use deadly force if an objectively reasonable officer in the same
circumstances would conclude that the suspect posed a threat
of death or serious physical injury to the officer or to others.”
Marion v. City of Corydon, Indiana, 559 F.3d 700, 705 (7th Cir.
2009), citing Tennessee v. Garner, 471 U.S. 1, 11-12 (1985).
If we determine that the use of force was excessive under
that constitutional standard, we must turn to the next question,
which is whether the officers are entitled to qualified immunity
for their actions. “Qualified immunity, in effect, affords
enhanced deference to officers’ on-scene judgments about the
level of necessary force … 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 demonstrate
that the right to be free from the particular use of force under
the relevant circumstances was ‘clearly established.’” Abbott,
705 F.3d at 725. For qualified immunity purposes, a right is
clearly established if the contours of that right are sufficiently
6 Nos. 14-2523 & 14-2808
clear that a reasonable officer would understand that his
actions violate that right—“[i]n other words, ‘existing prece-
dent must have placed the … constitutional questions beyond
debate.’” Id., quoting Reichle v. Howards, ___ U.S. ___, 132 S. Ct.
2088, 2093 (2012); Sheehan, 135 S. Ct. at 1774.
In both cases before us today, the district court was pre-
sented with a motion for summary judgment. In Williams, the
court granted summary judgment in favor of the officer
defendants, concluding that the officers were entitled to
qualified immunity. The plaintiffs now appeal that determina-
tion. In contrast, the district court in Brown denied summary
judgment to the officers on the constitutional claim as well as
on the issue of qualified immunity. The defendants appealed
that denial to this court. See Weinmann v. McClone, 787 F.3d
444, 447 (7th Cir. 2015)(discussing the appealability of denials
of qualified immunity).
The Supreme Court recently addressed a Fourth
Amendment challenge in circumstances analogous to the ones
presented here in Sheehan, 135 S. Ct. 1765, and its analysis is
instructive. Teresa Sheehan resided in a group home for
persons dealing with mental illness. Id. at 1769. Sheehan’s
mental condition appeared to be deteriorating to the extent
that she had stopped taking her medications, no longer spoke
with her psychiatrist, and reportedly had stopped changing
her clothes or eating. Id. When the social worker used a key to
enter Sheehan’s room, Sheehan yelled at the social worker to
get out and shouted that she had a knife and would kill the
social worker if necessary. Id. at 1769-70. Police officers were
then called to the group home. The officers knocked on
Nos. 14-2523 & 14-2808 7
Sheehan’s door, announced who they were, and indicated that
they wanted to help Sheehan. Id. at 1770. When Sheehan failed
to respond, the officers entered the room using a key, and
again Sheehan responded in a violent manner. Sheehan
grabbed a knife and began approaching the officers, yelling
that she was going to kill them, that she did not need help, and
that they should get out. Id. The officers left the room, but
determined that immediate action was required, and chose not
to wait for the backup that was already on the way. Id. at 1771.
One officer then pushed the door open while the other began
using pepper spray on Sheehan. Id. Sheehan did not drop the
knife, however, and when Sheehan was within a few feet of the
officers, one of the officers shot her twice. Id. When she failed
to collapse, the other officer fired multiple shots at her. Id.
Sheehan survived the incident, and ultimately brought a § 1983
challenge alleging that the officers violated her Fourth Amend-
ment right against unreasonable seizures.
The Ninth Circuit held that although the initial entry into
the room was lawful, and the firing of the shots was reasonable
when the pepper spray failed to stop Sheehan’s advance, a jury
could find that the officers provoked Sheehan by needlessly
forcing that second confrontation. Id. at 1772. The majority also
denied the claim of qualified immunity, holding that “it was
clearly established that an officer cannot ‘forcibly enter the
home of an armed, mentally ill subject who had been acting
irrationally and had threatened anyone who entered when
there was no objective need for immediate entry.’” Id., quoting
Sheehan v. City and County of San Francisco, 743 F.3d 1211, 1229
(9th Cir. 2014).
8 Nos. 14-2523 & 14-2808
The Court reversed the Ninth Circuit on the qualified
immunity issue. The Court agreed that the officers did not
violate any federal right when they opened Sheehan’s door the
first time, because “‘[l]aw enforcement officers may enter a
home without a warrant to render emergency assistance to an
injured occupant or to protect an occupant from imminent
injury.’” Id. at 1774-75, quoting Brigham City v. Stuart, 547 U.S.
398, 403 (2006). Moreover, the Court recognized that the
second entry was also constitutionally permissible because it
was part of a continuous search or seizure, and the officers
knew that Sheehan had a weapon and had threatened to use it
to kill three people, and that delay could make the situation
more dangerous. Id. at 1775. Under the reasonableness stan-
dard of the Fourth Amendment, the Court held that it was
reasonable for police to move quickly “if delay ‘would gravely
endanger their lives or the lives of others,’” even if the actions
proved with the benefit of hindsight to be a mistake. Id.,
quoting Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 298-99
(1967). The Court noted that the Constitution is not blind to the
need for officers to make split second judgments. Id. The Court
further agreed that upon opening the door the second time, the
officers’ use of force was reasonable–from the initial use of
pepper spray to the escalation to deadly force in an effort to
protect themselves. According to the Court, the “real question”
in the case was whether the Fourth Amendment was violated
when the officers opened the door for the second time rather
than attempting to accommodate her disability. In other words,
the Court considered whether the knowledge of her disability
impacted the reasonableness of the officers’ actions. Because
the briefing focused on this issue in the context of whether the
Nos. 14-2523 & 14-2808 9
officers had qualified immunity, the Court proceeded directly
to the question of whether the officers’ failure to accommodate
Sheehan’s illness violated clearly established law.
The Court held that the cases relied upon by the Ninth
Circuit panel majority were insufficient to constitute the type
of clearly established law that would jettison qualified immu-
nity. For instance, the Court stated that the Ninth Circuit’s
reliance on Graham v. Connor, 90 U.S. 386 (1989), was misplaced
because Graham established only that the objective reasonable-
ness test applies to excessive force claims and that was “far too
general a proposition to control this case.” Sheehan, 135 S. Ct.
at 1775. The Court emphasized that it had repeatedly told
courts not to define clearly established law at a high level of
generality. “Qualified immunity is no immunity at all if ‘clearly
established’ law can simply be defined as a right to be free
from unreasonable searches and seizures.” Id. at 1776. In
comparing the facts of the cases relied upon by the Ninth
Circuit panel majority, the Court determined that the facts
were too dissimilar to control the case. Moreover, the Court
noted that a Fourth Amendment violation could not be
established by merely demonstrating that bad tactics resulted
in a deadly confrontation that could have been avoided. Id. at
1777. Nor did it matter, for qualified immunity purposes, that
an expert testified that the officers failed to follow their
training as to how to handle mentally ill persons in such
scenarios. Id. “Rather, so long as ‘a reasonable officer could
have believed that his conduct was justified,’ a plaintiff cannot
‘[a]void summary judgment by simply producing an expert’s
report that an officer’s conduct leading up to a deadly confron-
tation was imprudent, inappropriate, or even reckless.’” Id.,
10 Nos. 14-2523 & 14-2808
quoting Billington v. Smith, 292 F.3d 1177, 1189 (9th Cir. 2002).
The Court noted that even if the Ninth Circuit panel majority
had properly concluded that its cases would have put officers
on notice that it was unreasonable to forcibly enter the home of
an armed, threatening, mentally ill suspect absent an objective
need for immediate entry, qualified immunity was proper
because no precedent clearly established that there was no
objective need for immediate entry here. Id. at 1777. Because
the officers had no fair and clear warning of what the Constitu-
tion required in the situation that they faced on that day,
qualified immunity applied. Id. at 1778. Sheehan thus cautions
against interpreting the “clearly established law” requirement
too broadly and substituting general propositions of law for
cases that are factually similar enough to apprise the officers of
the contours of the constitutional protections due in the
situation. We turn then, to the application of Sheehan and the
other cases set forth above, to the facts of the individual cases
before us, largely drawing from the thorough presentation of
facts set forth in the comprehensive district court decisions.
II.
On the evening of January 15, 2012, William (Bill) Williams
sent a text message to his sons Tyler and Jacob which caused
them to fear that he was going to commit suicide. Both sons
proceeded to the home. When Jacob arrived at the home, he
broke down the locked bedroom door, and discovered that his
father had locked himself into the bathroom adjoining the
bedroom. His father threatened to kill Jacob if he came into the
bathroom. Jacob informed the 911 dispatcher that his father
was probably going to shoot himself and that his father
threatened to stab him if he opened the bathroom door. In the
Nos. 14-2523 & 14-2808 11
meantime, Williams’ sister and her boyfriend arrived at the
home. In response to the 911 contact, Putnam County deputy
sheriff John Chadd, Cloverdale police officer Charles Hallam,
and Indiana State Police officer Brian Thomas arrived at the
scene. Those responders were later joined by officers Patrick
Labhart and Chris Springstun of the Indiana Department of
Natural Resources. For the sake of brevity, we will refer to all
of the law enforcement responders collectively as “officers” in
this opinion whether deputy sheriffs or officers and regardless
of agency. The dispatcher informed Chadd and Hallam that
Williams may have cut his wrists. Chadd asked the dispatcher
to contact the Putnam County Sheriff’s Department negotiator,
but the dispatcher was unable to reach the negotiator.
At some point around that time, Chadd and Labhart used
a stepladder outside the home in an attempt to see inside the
window of the bathroom. The appellants vehemently dispute
the officers’ claim that they could see blood in the bathroom
from the vantage point on the ladder, but that dispute is
immaterial in this case because there is no dispute that Wil-
liams in fact had cut himself in an attempt to commit suicide
and that the officers were aware of that fact. The appellants
argue that the extent of Williams’ injuries is material because
the officers testified that the amount of blood factored into
their decision to subsequently unlock the bathroom door and
confront Williams. The subjective motivation of the officers,
however is irrelevant because the assessment as to the reason-
ableness of the force used in a seizure is an objective test. As
we noted above, courts consider only whether the officers’
actions are objectively reasonable in light of the totality of the
facts and circumstances confronting them, regardless of the
12 Nos. 14-2523 & 14-2808
officers’ subjective motivations. Graham, 490 U.S. at 397; Miller,
761 F.3d at 828-29. As will be discussed later, the undisputed
evidence established that Williams had engaged in behavior
that endangered his life and necessitated action by the officers,
and therefore we need not consider whether additional
evidence in the form of visual observation of blood in the
bathroom was also undisputed.
While some of the officers were attempting to see into the
bathroom, Hallam spoke with Williams from within the
bedroom. Hallam asked Williams what was going on, to which
Williams responded “Who the f— are you?” After Hallam
identified himself as a Cloverdale police officer and asked
Williams how he was doing, Williams responded “Get the f—
out of here. Get the f— out of my house. Leave me alone.”
Williams threatened to stab Hallam or anyone else who
opened the door.
The appellants dispute that Hallam spoke with Williams
and thus contest whether Williams was ever aware that officers
were in the house, arguing that it is relevant to whether the
subsequent actions were objectively reasonable. The district
court, however, properly resolved this issue, and we agree
with its reasoning. Hallam testified that he spoke with Wil-
liams alone, but appellants rely on the testimony of four
officers that they did not hear Hallam communicate with
Williams. That does not contradict Hallam’s testimony, and in
fact is consistent with his testimony that he was alone when he
communicated with Williams. Moreover, three officers testified
that Hallam informed them at the time that he had spoken with
Williams. The appellants did not present evidence disputing
that testimony, such as evidence that Hallam was never alone
Nos. 14-2523 & 14-2808 13
in the bedroom and thus could not have had that conversation.
The only other evidence relied upon by the appellants are
subsequent conversations the officers had with Tyler, who
arrived at the home after the time at which Hallam had the
conversation with Williams. At that time, other officers were
present in the bedroom and they informed Tyler to keep his
voice down because Williams did not know they were there,
and cautioned him to not let his father know that any law
enforcement was present. That conversation does not contra-
dict Hallam’s testimony that he had a prior conversation with
Williams, and in fact their desire to keep Williams in the dark
as to their presence in the room is consistent with the testi-
mony that Williams became agitated when Hallam identified
himself as an officer and demanded that Hallam leave the
house. In short, the appellants have presented no evidence to
dispute that Hallam spoke with Williams. The officers’ instruc-
tion not to alert Williams that they were gathering outside the
bathroom does not support an inference that Hallam therefore
did not communicate with Williams earlier in the ordeal. Mere
speculation is insufficient to raise a genuine issue of fact.
It is undisputed that in the officers’ presence, Tyler spoke
with Williams through the bathroom door. In that conversa-
tion, Williams told Tyler that he had knives and an injecting
needle used to marinate turkeys. He further stated that he had
taken the rest of his bottle of Xanax and that he had cut
himself, but that it had “taken longer than planned,” and was
not “going as fast as the internet said,” but that he needed 30
more minutes and he would be done. He also asked Tyler to
get him a gun.
14 Nos. 14-2523 & 14-2808
Chadd told Tyler to let Williams believe that he had a gun
in an attempt to lure him out, and even placed his own gun on
the floor outside the door so Williams could see it when
Williams demanded evidence of the gun. Williams still could
not see the gun, however, and refused to open the door.
The officers had discussed with Williams’ mother how to
open the locked bathroom door from the outside, and she had
provided them with a Q-Tip with the top removed, which
could be used to “pop” the lock on the door. After the attempt
to lure Williams out with the gun failed, the officers decided to
unlock the door in that manner at which time Chadd and
Hallam would tase Williams and then handcuff him. The
testimony is contradictory as to whether the plan was to open
the door and tase him only if he failed to come out voluntarily,
or to immediately tase him without warning. When the officers
unlocked and opened the door, Williams was standing at the
sink facing the mirror, with two knives sitting on the sink by
his hands - - each knife measuring approximately a foot long.
Williams turned towards the doorway, and Chadd and Hallam
fired their tasers at him (either simultaneously or in short
succession). The tasers unfortunately had no effect on Wil-
liams, who exited the bathroom towards Chadd and Hallam
while raising a knife above his head. Chadd and Hallam
backed away from Williams, who turned toward Hallam and
continued to follow him as Hallam backed up and moved
around the bed. When Hallam rounded the final corner of the
bed, he fired at Williams but missed, and subsequently fired a
second shot that hit Williams. Hallam then continued backing
up until he fell on the bed. Williams fell on top of Hallam and
his knife cut one of Hallam’s fingers. When there was a brief
Nos. 14-2523 & 14-2808 15
separation of Hallam and Williams, other officers fired at
Williams as well, and he was fatally struck. Approximately 2-4
seconds elapsed from when Williams exited the bathroom to
when he was shot, and around 29 minutes from when the
officers first arrived at the home to the tragic culmination of
events.
The appellants maintain that the use of force against a
subject who is not actively resisting violates clearly established
law and the officers accordingly are not entitled to qualified
immunity. They argue that the district court failed to view the
facts in the light most favorable to Williams, and if the court
had properly considered the evidence it would have deter-
mined that Williams was not actively resisting. We have
already discussed the appellants’ arguments relating to the
officers’ ability to see into the bathroom window, and as to
whether there is a dispute of fact that Hallam spoke with
Williams. The appellants additionally argue that the district
court improperly weighed evidence when it considered
Williams’ threats to kill anyone who entered the bathroom and
determined that those statements established probable cause
to believe Williams had committed felony intimidation. The
appellants assert that threatening statements cannot be
criminal unless the speaker intended to communicate a “true
threat,” and that there is a dispute as to whether Williams
intended to harm anyone because family members testified
that they did not believe Williams intended to harm anyone.
As an initial matter, we note that the repeated explicit threats
by Williams, coupled with his possession of a weapon and his
refusal to cooperate or exit the bathroom, provided an objec-
tive basis for the officers to believe that he posed a threat to the
16 Nos. 14-2523 & 14-2808
safety of himself and others. The family members’ subjective
interpretations do not alter that, and here the family members’
actions do not even support that characterization of their
subjective state of mind. Although the family members entered
into the locked bedroom, and had the ability to unlock the
bathroom with a Q-Tip in their possession, none of the family
members did so after speaking with Williams and being told
that he would kill anyone who entered. Their actions are
consistent with a concern that he could harm himself or others,
not with a belief that his threats were merely idle ones.
The Sheehan decision discussed above addressed a similar
situation. In the present case, as the Court held in Sheehan, the
officers were entitled to enter Williams’ room “to render
emergency assistance to [the] injured occupant or to protect
[the] occupant from imminent injury.” Sheehan, 135 S. Ct. at
1774-75 (internal quotations marks omitted). Specifically, it is
undisputed that the officers were aware that Williams had cut
himself in an attempt to commit suicide and that he told his
son Tyler, in the officers’ presence, that he had taken a large
quantity of Xanac in an effort to harm or kill himself that was
“tak[ing] longer than planned.” Under the rule as announced
in Sheehan, it is of no consequence for purposes of the Fourth
Amendment that Williams’ injury and imminent injury were
self-inflicted; the officers were not required to allow him to
carry out his suicide attempt. When the officers entered
Williams’ room, they initially attempted to take control of him
without using deadly force. As we discuss later, their initial
use of the tasers was appropriate under constitutional stan-
dards given Williams’ possession of a knife and his threat to
stab anyone who entered. When that was unsuccessful, and
Nos. 14-2523 & 14-2808 17
Williams advanced on them brandishing the knife, the officers
acted reasonably in using deadly force; plaintiffs do not argue
otherwise.
That brings us to the appellants’ related argument, which
is that a reasonable officer, upon opening the bathroom door,
would have been able to see that Williams was not at risk of
bleeding out and therefore there were no exigent circum-
stances necessitating action. Once again, the Supreme Court
and this court have repeatedly rejected that type of second-
guessing of the split second decisions officers are forced to
make in confronting rapidly evolving situations. Id. at 1775.
Williams had acknowledged that he had cut himself and that
it was taking longer than he thought to lose sufficient blood to
end his life, and had also admitted to taking all of the remain-
ing Xanax pills in his possession in an attempt to end his life.
He also threatened to kill anyone who entered. Faced with
those undisputed facts, as a matter of law the officers pos-
sessed an objectively reasonable belief that action was needed
to avoid the threat to his life and the potential threat to others
inherent in the danger that he could emerge in that agitated
state with the knives. The appellants argue that no exigency
was present because Williams had not lost consciousness and
“it is generally well known that most suicide attempts are not
successful, unless a gun is used,” and in support point to the
testimony of a forensic pathologist that only 20-50% of suicide
attempts are successful. This rather astounding argument is
unavailing. Setting aside the obvious question that perhaps
non-firearms suicide attempts are unsuccessful precisely
because timely aid is rendered, the argument would alter the
standard to one that would allow officers to act only in the
18 Nos. 14-2523 & 14-2808
event of imminent death. There is no support for such a
standard that would prohibit officers from rendering aid to a
person who has already harmed himself, or that would require
them to wait until a hostile person emerged and attacked
others before attempting to defuse the situation, and it is
inconsistent with Sheehan.
Finally, no clearly established law renders the officers’ use
of force unreasonable in light of the circumstances that they
faced. Williams’ presence in the confined space of a bathroom,
inaccessible from the outside, presented the officers with
limited options, which was further impacted by the space
limits of the bedroom that adjoined it. The decision to employ
tasers immediately upon opening the bathroom door was a
reasonable use of force to subdue a person who potentially
presented an immediate threat to himself and the officers once
that door was opened. Under the qualified immunity standard,
the appellants must demonstrate that “the right to be free from
the particular use of force under the relevant circumstances
was ‘clearly established.’” Abbott, 705 F.3d at 725. Rather than
establishing that such force was impermissible, our cases
repeatedly have upheld the use of non-lethal force such as
tasers in such situations. We have described tasers as “falling
somewhere in the middle of the nonlethal-force spectrum.” Id.
at 726. Although describing it as more than a de minimis
application of force and recognizing the pain that it can cause,
“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.” Id. We have
upheld its use in a situation in which a person was refusing to
Nos. 14-2523 & 14-2808 19
move from a doorway and an officer believed that fellow
officers in the blocked room needed assistance, Clarett v.
Roberts, 657 F.3d 664, 674-75 (7th Cir. 2011), and where a
defendant “displayed an unwillingness to accede to reasonable
police commands, and his actions suggested an intent to use
violence to fend off further police action,” United States v.
Norris, 640 F.3d 295, 303 (7th Cir. 2011). Abbott, 705 F.3d at
727-28.
In contrast, the appellants have failed to present any case
that would establish that the use of a taser in a scenario such as
this one is excessive. Their arguments rest essentially on the
characterization of Williams’ actions as passive rather than
active resistance without any real sense of urgency or threat to
others, which is premised on the speculative notion that his
threats were idle ones. Moreover, their assertion that the
officers should have been able to ascertain once the door was
open that Williams was not in immediate danger of death and
did not pose a threat is unavailing for multiple reasons. First,
he was standing at the sink with two large knives on the sink
next to his hands, and turned toward the door as it opened.
That is not evidence that he had abandoned his threat to kill
those who tried to enter. Moreover, courts have repeatedly
rejected any attempt to hold officers to such an impossible
standard of altering their conduct based on the split-second
unfolding of events. For instance, in Johnson v. Scott, 576 F.3d
658, 660 (7th Cir. 2009), we held that an officer did not act
unreasonably in striking a shooting suspect several times until
the suspect was handcuffed, despite evidence that immediately
prior to that the shooting suspect had turned and offered to
surrender when cornered in a residential yard. We held that
20 Nos. 14-2523 & 14-2808
the suspect was not known to be subdued when the pursuers
applied force. We have since noted that “[t]he critical fact in
Johnson was that the officer ‘had no idea how Johnson was
going to behave once he was cornered.’” Miller, 761 F.3d at 830,
quoting Johnson, 576 F.3d at 660. The officers in this case
similarly could not know how Williams would react to the
opening of the door, other than Williams’ own words that he
would try to kill them, and their decision to employ non-lethal
force to avoid that danger was reasonable. The appellants here,
like the plaintiffs in Sheehan, cannot point to any case involving
a dangerous, obviously unstable person in possession of a
weapon, making threats, which would have put the officers on
notice that their conduct was constitutionally impermissible.
Accordingly, the officers were entitled to qualified immunity
for their decision to open the door and utilize the tasers.
Once the tasers were employed without effect, the officers
were presented with a person advancing towards them with a
knife, and in fact one officer was ultimately stabbed by
Williams. The appellants do not contest that the officers acted
reasonably in firing the shots at that point. Accordingly, the
district court properly held that the officers were entitled to
qualified immunity.
III.
We turn then to the facts in Brown. Late in the evening on
May 4, 2012, John Brown, who was 22 years old, left voice and
text messages with friends indicating that he was contemplat-
ing suicide. One of those friends contacted his mother, Nancy
Brown, who resided in the mobile home with John, and
informed her that John was in his bedroom and that he was
Nos. 14-2523 & 14-2808 21
hurting himself. Nancy immediately went to check on John,
and after unlocking his bedroom door with a key, found him
sitting at his computer desk, crying and holding a folding
knife. He was bleeding from his wrist. Nancy rushed over to
John and tried to take the knife from him, but he refused to let
go of it. She then held his head in her arms and told him she
was going to get help. John locked the door again when Nancy
exited the bedroom to call 911.
Nancy informed the dispatcher that her son was attempting
to commit suicide and had a knife. She further stated that there
were no other weapons in the bedroom, that John was bipolar
and refused to take his medication, and that he had been
drinking heavily and had cut himself in the past.
Deputy Christopher Such was the first to arrive at the
mobile home. He spoke with Nancy, and then proceeded down
the hallway to the bedroom door. Such identified himself to
John through the closed door. Loud music could be heard in
the bedroom, and John did not initially respond. Such then
prompted John by asking if John remembered Such from a
prior encounter in which Such has given John a ride to a
nearby city. According to Such’s affidavit, John responded “f—
you,” but Nancy maintains that he did not so respond.
Shortly thereafter, at 12:14 a.m., Deputy Wayne Blanchard
arrived at the scene. The sequence of events that followed his
arrival transpired quickly, because by 12:16 a.m, two minutes
after Blanchard’s arrival, Blanchard had shot and killed John.
The facts as to what transpired in that time are in dispute.
Blanchard in his affidavit states that he spoke with Nancy who
conveyed the same information to him as she had to Such, and
22 Nos. 14-2523 & 14-2808
then Such briefed him on his communication through the door
with John. Blanchard removed his gun from the holster and
proceeded to the bedroom door, while Such went outside and
looked through John’s window. Such radioed to Blanchard that
John was sitting at his computer desk drinking a beer and
smoking a cigarette, with his back to the bedroom door.
Declining Nancy’s offer of a key to unlock the bedroom door,
Blanchard determined that he would instead kick in the
bedroom door so that John would not have time to access any
other weapons (although Nancy stated that she had informed
the dispatcher that no other weapons were in the bedroom,
and the dispatcher relayed all information to the deputies).
Nancy proceeded back down the hallway and sat down on a
sofa in the living room, from which she could hear but could
not see the subsequent events.
According to Blanchard, he then kicked down the bedroom
door and then took a step back to position himself. Such then
ran back into the mobile home and positioned himself behind
Blanchard, drawing his taser in the process. They observed
John sitting at the computer desk as described by Such in the
radio communication. Blanchard ordered John to show his
hands, but John briefly glanced at Blanchard and ignored the
order. Blanchard repeated the order and John again ignored it.
John then stood up, and the affidavit statements of Such and
Blanchard are jarringly similar in the description of John. They
both stated that John turned toward them in a “Frankenstein-
like” manner. They observed blood on John’s left arm, and he
was holding a folding knife in his hand. John gave them a
“thousand-yard stare,” walked to the bedroom door and
slammed it closed. Blanchard immediately kicked the door in
Nos. 14-2523 & 14-2808 23
a second time, pointed the gun at John who was halfway
between the door frame and his desk, and ordered John to
drop the knife. John told Blanchard that Blanchard would have
to shoot him, and then, according to both deputies in yet
another similar description, John “rolled his shoulders for-
ward,” started moving the knife “in an upward position” and
began advancing towards Blanchard. When John was within 5
or 6 feet of Blanchard, Blanchard fired two shots at him
resulting in his death.
Nancy heard the exchange from her position in the living
room, and her statement differs from those of the deputies in
critical ways. Specifically, she stated that she did not hear
Blanchard tell John to drop the knife, but before she heard
Blanchard kick in the door, she heard one of the deputies call
John’s name twice. She then heard John say “fine, come in and
shoot me between the eyes and kill me.” She then heard the
door being kicked, slammed shut, and kicked in a second time,
followed directly by two gunshots. Under her version,
therefore, after the door was kicked in the second time, John
was never ordered to drop his knife and did not state that they
would have to kill him. The district court held that Nancy’s
testimony created a genuine issue of fact as to whether John
was in fact threatening the officers with a knife at the time he
was shot. The court held that Nancy could not see whether
John raised his knife, but her testimony as to what she heard
cast doubt on the veracity of the deputies’ version of events,
and thus it was a question for the jury. Because this is an
interlocutory appeal from the denial of qualified immunity, our
review is limited in scope. We may review the purely legal
question of whether “a given set of undisputed facts demon-
24 Nos. 14-2523 & 14-2808
strates a violation of clearly established law,” but we may not
review the record “‘to determine whether the district court
erred in finding that a genuine issue of material fact exists.’”
Gutierrez v. Kermon, 722 F.3d 1003, 1009 (7th Cir. 2013), quoting
Via v. LaGrand, 469 F.3d 618, 624 (7th Cir. 2006); Leaf v. Shelnutt,
400 F.3d 1070, 1078 (7th Cir. 2005). Accordingly, in determin-
ing whether the district court properly denied qualified
immunity, we accept the district court’s determination that
there was a genuine issue of fact as to whether John was raising
the knife and advancing toward the deputies at the time he
was shot.
In denying the motion for summary judgment based on
qualified immunity, the district court identified two factual
scenarios under which, in its view, a jury could find that
Blanchard unreasonably had seized John. The first theory of
liability considered by the district court is that Blanchard
unreasonably created an encounter that led to the use of force
against John. According to the district court, Blanchard could
be liable under that theory even if he established that he
reasonably thought John was advancing on him with an
upraised knife, if the jury found that Blanchard’s actions in
kicking in the door were not reasonably calculated to prevent
John from harming himself, which was the only legitimate
ground for initiating a seizure.
Blanchard argues that the district court erred in denying
qualified immunity on that ground, because it was not clearly
established that pre-seizure conduct of a law enforcement
officer can violate the Fourth Amendment’s prohibition of
unreasonable seizures. Blanchard is entitled to qualified
immunity unless existing precedent placed the constitutional
Nos. 14-2523 & 14-2808 25
question beyond debate. Abbott, 705 F.3d at 725. That stan-
dard is not met here. Our caselaw is far from clear as to the
relevance of pre-seizure conduct, or even as to a determination
as to what conduct falls within the designation “pre-seizure,”
although the majority of cases hold that it may not form the
basis for a Fourth Amendment claim. Compare Marion, 559 F.3d
at 705 (“Pre-seizure police conduct cannot serve as a basis for
liability under the Fourth Amendment; we limit our analysis to
force used when a seizure occurs.”), and McCoy v. Harrison, 341
F.3d 600, 605 (7th Cir. 2003) (“Even unreasonable, unjustified, or
outrageous conduct by an officer is not prohibited by the Fourth
Amendment if it does not involve a seizure.” (alteration omitted)
(internal quotation marks omitted)), and Carter v. Buscher, 973
F.2d 1328, 1332 (7th Cir. 1992) (“[P]re-seizure conduct is not
subject to Fourth Amendment scrutiny.”), with Sledd v. Lindsay,
102 F.3d 282, 288 (7th Cir. 1996) (noting that if an officer fails to
identify himself the normal rules governing the use of deadly
force are modified, and discussing the Sixth Circuit’s determina-
tion that an officer violates the Fourth Amendment if he “unrea-
sonably create[s an] encounter that [leads] to a use of force” by
“entering a private residence late at night with no indication of
identity”), and Estate of Starks v. Enyart, 5 F.3d 230, 234 (7th Cir.
1993) (holding that an officer violates the Fourth Amendment if
he “unreasonably create[s an] encounter” in which an individual
would be “unable to react in order to avoid presenting a deadly
threat to [the officer]”); see also Aaron Kimber, Note, Righteous
Shooting, Unreasonable Seizure? The Relevance of an Officer's Pre-
Seizure Conduct in an Excessive Force Claim, 13 Wm. & Mary Bill
Rts. J. 651, 673 (2004) (“The Seventh Circuit has been inconsistent
in how it allows pre-seizure conduct to be utilized by a plain-
tiff.”). The district court acknowledged that “no case precisely
26 Nos. 14-2523 & 14-2808
identifies Blanchard’s conduct as the kind of ‘unreasonable
conduct’ that creates a dangerous situation,” but concluded
that it nevertheless would have been obvious to a reasonable
officer in Blanchard’s position. Dist. Ct. Decision and Order at
12 (July 17, 2014). Given the lack of clarity in cases in this area,
we disagree that Blanchard was on notice that his conduct
leading up to the encounter could itself be the basis for Fourth
Amendment liability. See Sheehan, 135 S. Ct. at 1775-76
(cautioning against defining clearly established law at a high
level of generality).
That does not mean that Blanchard’s pre-seizure conduct is
irrelevant to the Fourth Amendment claim. The sequence of
events leading up to the seizure is relevant because the
reasonableness of the seizure is evaluated in light of the totality
of the circumstances. Deering v. Reich, 183 F.3d 645, 649-52 (7th
Cir. 1999). For instance, the short period of time that elapsed
from Blanchard’s arrival to the confrontation, and his abrupt
action in kicking in the door, give context to John’s possession
of the knife that might be different if John had himself opened
the door holding the knife. The circumstances known by
Blanchard, or even created by him, inform the determination
as to whether the lethal response was an objectively reasonable
one. Id. But our caselaw does not clearly establish that an
officer may be liable under the Fourth Amendment solely for
his pre-seizure conduct that led to the encounter. See Graham,
490 U.S. at 395 (claim of excessive force in the course of a
seizure should be analyzed under the Fourth Amendment
reasonableness standard rather than under the substantive due
process approach); Carter, 973 F.2d at 1332(“[t]he Fourth
Amendment prohibits unreasonable seizures, not unreason-
Nos. 14-2523 & 14-2808 27
able, unjustified or outrageous conduct in general.”)
The second theory of liability considered by the district court
concerns whether Blanchard is entitled to qualified immunity
for using deadly force in the absence of probable cause to
believe that John was threatening him at the time. Under this
theory of liability, the issue is whether it is clearly established
law that Blanchard could not constitutionally use lethal force
against John in the circumstances facing Blanchard. On appeal,
Blanchard argues both that the record establishes that he had
probable cause to believe that John was raising the knife and
advancing, and that even absent that John’s possession of the
knife in those circumstances were sufficiently threatening that
he was entitled to qualified immunity. As we stated above, the
first argument impermissibly seeks a review of the district
court’s determination that there is a genuine issue of fact as to
whether John was advancing with the knife. Accordingly, we
review only whether Blanchard is entitled to qualified immu-
nity regardless of whether John was merely holding the knife
or advancing with it.
In contrast to the situation presented in Williams, in this
case, Blanchard resorted to the use of lethal force as an initial
matter, and he did so despite the possession of a taser by Such
who was present at the scene. There may have been reasons for
that choice, given the confined nature of the mobile home
including a hallway that was only 2-1/2 feet wide thus limiting
mobility, but the record is undeveloped as to that. We must
balance the nature of the force used—from lethal through the
spectrum of non-lethal options such as flash bang devices, bean
bags, pepper spray and tasers—with the governmental interest
at stake. Even focusing the reasonableness inquiry, as
28 Nos. 14-2523 & 14-2808
Blanchard urges, on only the shooting itself as opposed to the
second breach of the door that preceded it, the district court
properly denied qualified immunity.
It is well-established—and has been since long before the
shooting at issue here—that “a person has a right not to be
seized through the use of deadly force unless he puts another
person (including a police officer) in imminent danger or he is
actively resisting arrest and the circumstances warrant that
degree of force.” Weinmann, 787 F.3d at 448; Marion, 559 F.3d
at 705; Muhammed v. City of Chicago, 316 F.3d 680, 683 (7th Cir.
2002); Tennessee v. Garner, 471 U.S. 1, 11-12 (1985). Accordingly,
we have repeatedly recognized that officers could not use
significant force on nonresisting or passively resisting suspects.
Abbott, 705 F.3d at 732; Estate of Starks, 5 F.3d at 233. If Nancy’s
description is accurate, and we must credit her version at this
stage because the district court determined that it created a
genuine issue of fact, then deadly force was used here even
though John was merely passively resisting their entreaties,
and in the absence of any threats of violence by John toward
the deputies or anyone else. See Phillips v. Community Ins.
Corp., 678 F.3d 513, 525 (7th Cir. 2012) and Estate of Escobedo v.
Bender, 600 F.3d 770, 780-81 (7th Cir. 2010) (discussing conduct
constituting merely passive resistance). In fact, Nancy had
entered the room and engaged in physical contact with John,
and at no point did he threaten violence towards her nor did
she express any concern with such a possibility to the deputies.
Moreover, Such was able to see John through the outside
window, and could observe his behavior. At that time, there
was no indication that John posed a threat to others, and the
extent to which he posed a threat to himself is not established
Nos. 14-2523 & 14-2808 29
by this record, given that he was observed sitting, smoking a
cigarette, drinking a beer, walking and talking and not in
apparent immediate danger.
We addressed a strikingly similar factual scenario recently
in Weinmann, 787 F.3d 444. In that case, Susan Weinmann
called 911 to report that her husband, Jerome Weinmann, was
in the garage threatening to kill himself and had access to a
gun. Id. at 446. Within three minutes of arriving, the respond-
ing officer Deputy Patrick J. McClone decided to kick in the
garage door to make an unannounced entry. Id. Although
acknowledging that McClone never pointed the shotgun at
him, McClone argued that it was undisputed that he perceived
the weapon as being pointed in his direction, and he shot
Jerome four times. Id. at 447. We held that McClone was not
entitled to qualified immunity because the facts did not suggest
that Jerome had put another person in imminent danger or was
actively resisting arrest in circumstances warranting such force.
Id. at 448-49. McClone knew only that Jerome had access to a
firearm, was potentially suicidal, had not responded to the
attempt to speak with him, and that sounds from inside the
garage resembled pattering on cupboard doors. Id. at 449. We
deemed those facts insufficient to suggest anything more than
Jerome placing himself in imminent danger. Id. We also
rejected the argument that the force was justified because of
the danger inherent in entering an enclosed garage with a
single entrance. Id.
The analysis is the same here. Under this theory of liability,
Blanchard was faced with facts indicating that John posed a
potential threat to himself, but there were no facts indicating
30 Nos. 14-2523 & 14-2808
that he was a threat to others, and in fact his mother’s testi-
mony that she was able to enter the room, talk with him, and
hold his head indicates otherwise. Blanchard does not even
dispute that proposition. Instead, he argues once again that the
undisputed testimony established that John was shot because
he approached the officers with a knife in a threatening
manner. Blanchard fails to acknowledge that the district court
determined that there was a genuine dispute of fact as to that
matter, and that we cannot review that determination in this
interlocutory appeal. That dispute of fact casts doubt on the
contention that immediately after the door was kicked in a
second time, John voiced resistance and then walked toward
Blanchard with the knife, and as in Weinmann the mere
possession of the knife is insufficient to warrant summary
judgment. We are aware that officers responding to a scene in
which a suicidal person is locked in a room are faced with the
difficult determination as to whether delay in responding will
allow the person to further harm himself or to become aggres-
sive toward others. It is clearly established, however, that
officers cannot resort as an initial matter to lethal force on a
person who is merely passively resisting and has not presented
any threat of harm to others. Blanchard is not entitled to
qualified immunity under that theory of liability, and thus the
district court properly denied the motion for summary
judgment.
Accordingly, the decisions of the district courts in Williams
and Brown are AFFIRMED.