Jamie Becker v. Zachary Effriechs

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1363
JAMIE BECKER,
Plaintiff-Appellee,
v.
ZACHARY ELFREICH, individually
and as an Officer of the Evansville
Police Department,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Evansville Division.
No. 12-cv-00182 — William G. Hussman, Jr., Magistrate Judge.
____________________
ARGUED SEPTEMBER 17, 2015 — DECIDED MAY 12, 2016
____________________
Before FLAUM, MANION, and SYKES, Circuit Judges.
MANION, Circuit Judge. Jamie Becker sued Evansville, Indi-
ana police officer Zachary Elfreich under 42 U.S.C. § 1983, al-
leging Officer Elfreich used excessive force in arresting him in
violation of his Fourth Amendment rights. Becker claimed Of-
ficer Elfreich used excessive force because, after Becker had
surrendered, Officer Elfreich pulled him down three steps
2 No. 15-1363
and placed his knee on his back while allowing a police dog
to continue to bite him. Officer Elfreich moved for summary
judgment, arguing he was entitled to qualified immunity be-
cause his conduct did not constitute excessive force or, alter-
natively, that it did not violate clearly established constitu-
tional law. The district court denied Officer Elfreich’s motion
for summary judgment. Officer Elfreich appeals, interlocuto-
rily, arguing that he is entitled to qualified immunity. We con-
clude that based on the record, Officer Elfreich has not estab-
lished that he is entitled to qualified immunity. We affirm and
remand for further proceedings consistent with this opinion.
I.
On March 11, 2011, four Evansville Police Department of-
ficers went to the home of Brinda Becker in order to execute
an arrest warrant for her son, Jamie Becker, who was staying
at her house at that time. The arrest warrant alleged that three
weeks earlier Becker had held a knife to his brother-in-law’s
neck and threatened to kill him. One of the officers dispatched
was Officer Zachary Elfreich, who was a police dog handler.
Officer Elfreich initially guarded the back door of the house
with his German Shepherd, Axel, while other officers went to
the front of the house. While at the rear of the house, Officer
Elfreich saw an individual named Brian Mortis leaving the
home. Mortis told Officer Elfreich that Becker was inside the
house with his mother and her sister, Delores Pfister.
Meanwhile, at the front of the house officers spoke with
Brinda Becker and Pfister, informing them that they had a
warrant for Becker’s arrest. Brinda Becker called upstairs to
her son that the police were there to arrest him, and then she
and Pfister waited on the front porch. Brinda Becker also told
officers that Becker was alone in the house. The officers called
No. 15-1363 3
Officer Elfreich to the front of the house with Axel. After wait-
ing about 30 seconds and not seeing or hearing Jamie, Officer
Elfreich released Axel inside the house and directed the dog
to “find him.”
Officer Elfreich testified that Axel is trained, upon hearing
the command “find him,” to use the “bite-and-hold” tech-
nique. Officer Elfreich explained that using this technique,
Axel will bite the first person he finds, even if that person is
not the target of the search and even if the person has surren-
dered, and hold that person until Officer Elfreich commands
him to release. Officer Elfreich further testified that Axel is ca-
pable of inflicting “lethal force” and that there is a probability
of him doing so.
According to Officer Elfreich, prior to releasing Axel he
gave a loud, clear warning: “Police department K-9, come out
now or I will release my dog and you will get bit.” Officer
Elfreich claimed that he listened for a moment and heard
nothing so he repeated the warning but after hearing nothing
again, he released Axel. Officer Elfreich explained that he un-
leashed Axel about 30 seconds after he issued the first warn-
ing. Jamie Becker and Brinda Becker both testified that Officer
Elfreich did not give a warning. Brinda Becker was on the
front porch near the door at the time Officer Elfreich entered
and Jamie Becker explained that he would have heard the
warning had one been given because there was a vent in his
second-floor room which was directly above the front door.
Jamie Becker testified in his deposition that at the time the
police arrived he was sleeping upstairs in his bedroom, and
upon hearing his mother’s announcement that the police were
there to arrest him, he replied he was getting dressed and
would be down. He further explained that within two
4 No. 15-1363
minutes of his mother’s announcement, he began descending
the stairs with his hands on top of his head so officers knew
he was surrendering. Becker’s girlfriend followed. 1 As they
were descending the stairs, Officer Elfreich released Axel.
Axel immediately ran from the front door through the house
to the stairway and began heading up the stairs which the duo
were then descending. Axel encountered Becker as he reached
a landing on the stairs, about three steps from the bottom, and
Axel bit Becker’s left ankle. At that point Becker shouted,
“Call the dog off. I’m coming towards you.” Officer Elfreich,
who had lost sight of Axel for the two seconds it took Axel to
run from the front door to the stairs, then ran to the stairs,
following Becker’s voice. He saw that Axel had bitten Becker’s
leg and that Becker had his hands on his head, but did not
command Axel to release Becker. Rather, Officer Elfreich or-
dered Becker to get on the floor. Becker claims he could not
hear the command because his girlfriend was screaming. Of-
ficer Elfreich then grabbed Becker by his shirt collar and
yanked him down the last few steps onto the floor, where he
landed hard on his chest and head.
Becker claims that as Officer Elfreich pulled him down the
steps Axel lost his grip on his leg, but upon hitting the ground
Axel bit him again harder and then continued to bite him
while violently shaking his head. Becker testified in his depo-
sition that he lay still on the ground with his hands behind his
back, while Officer Elfreich continued to allow Axel to bite his
1
Officer Elfreich testified that based on the officers’ conversations
with Becker’s mother, aunt, and Mortis, they believed Becker was the only
person left in the house. He further stated that had he known Becker’s
girlfriend was also inside, he would not have released the dog.
No. 15-1363 5
leg. Becker further explained that Officer Elfreich told him
that he could not have the dog release him until he was hand-
cuffed. Officer Elfreich placed his knee in Becker’s back, hand-
cuffed him, and only then ordered Axel to release his grip.
Becker was not sure how long Axel bit him, but his girlfriend
estimated a few minutes. Either way, Axel severely injured
Becker, with Becker’s calf “torn out completely.” Officers
transported Becker to a local hospital for treatment. At the
hospital, a member of the medical staff told Becker it was the
worst dog bite they had seen in twenty-three years. Becker re-
quired surgery and remained hospitalized for two or three
days. Becker suffered permanent muscle and nerve damage
and continues to suffer daily with pain.
Becker later filed suit against both Officer Elfreich and the
City of Evansville. While he alleged several federal and state
law claims against the defendants, the only issue on appeal is
Becker’s Fourth Amendment excessive force claim against Of-
ficer Elfreich. Additionally, while Becker had claimed that Of-
ficer Elfreich used excessive force in releasing Axel into the
house and directing Axel to bite and hold him, the magistrate
judge (hearing the case by consent of the parties) granted Of-
ficer Elfreich qualified immunity on that claim, and the initial
release of Axel is not an issue on appeal. Rather, on appeal is
Becker’s claim that after he had surrendered with his hands
on his head, Officer Elfreich used excessive force by pulling
him down the steps and placing his knee on his back while
allowing Axel to continue to bite him. While Officer Elfreich
also moved for summary judgment on Becker’s excessive
force claim premised on the post-surrender force, the magis-
trate judge denied Officer Elfreich’s qualified immunity on
that claim. Officer Elfreich appeals. Because qualified immun-
ity provides protection both from liability and suit, we have
6 No. 15-1363
interlocutory jurisdiction over this appeal. Hanes v. Zurick, 578
F.3d 491, 493 (7th Cir. 2009).
II.
On appeal, Officer Elfreich argues that he is entitled to
qualified immunity on Becker’s excessive force claim. “We re-
view the district court’s denial of summary judgment on qual-
ified immunity grounds de novo, asking whether viewing the
facts in the light most favorable to the plaintiff, the defend-
ant[] [was] nonetheless entitled to qualified immunity as a
matter of law.” Estate of Escobedo v. Bender, 600 F.3d 770, 778
(7th Cir. 2010). In determining whether a defendant is entitled
to qualified immunity, we “undertake a two-part analysis,
asking: (1) whether the facts alleged, ‘[t]aken in the light most
favorable to the party asserting the injury, … show the of-
ficer’s conduct violated a constitutional right’; and (2)
whether the right was clearly established at the time of its al-
leged violation.” Bd. v Farnham, 394 F.3d 469, 477 (7th Cir.
2005) (alteration in original) (quoting Saucier v. Katz, 533 U.S.
194, 201 (2001)).
A. Constitutional Violation
In this case, Becker claims Officer Elfreich used excessive
force when arresting him. We analyze excessive force claims
under the Fourth Amendment’s “reasonableness” standard.
Lawrence v. Kenosha Cty., 391 F.3d 837, 843 (7th Cir. 2004). “A
court determines whether an officer has used excessive force
in effectuating an arrest based on a standard of ‘objective rea-
sonableness[.]’” Payne v. Pauley, 337 F.3d 767, 778 (7th Cir.
2003) (quoting Graham v. Connor, 490 U.S. 386, 396-97 (1989)).
“A police officer’s use of force is unconstitutional if, ‘judging
from the totality of circumstances at the time of the arrest, the
No. 15-1363 7
officer used greater force than was reasonably necessary to
make the arrest.’” Id., 337 F.3d at 778 (quoting Lester v. City of
Chicago, 830 F.2d 706, 713 (7th Cir. 1987)). Our “inquiry is fact
specific and balances the intrusion on the individual against
the governmental interests at stake.” Id.
In conducting this analysis, it is “useful to pin down the
quantum of force” used by Officer Elfreich because that “rep-
resents the nature and significance of the governmental intru-
sion” on Becker’s Fourth Amendment rights. Abbott v. Sanga-
mon Cty., Ill., 705 F.3d 706, 725 (7th Cir. 2013). However, as
discussed below, at this stage it is impossible to precisely
quantify the amount of force Officer Elfreich used—whether
it was deadly force, or a lesser quantum of force.
“For a particular application of force to be classified as
‘deadly,’ it must at least carry with it a substantial risk of caus-
ing death or serious bodily harm.” Phillips v. Cmty. Ins. Corp., 678
F.3d 513, 521 (7th Cir. 2012) (emphasis in original) (quoting
Estate of Phillips v. City of Milwaukee, 123 F.3d 586, 593 (7th Cir.
1997)). Here, Becker suffered serious bodily harm: Axel tore
his calf out, causing permanent muscle and nerve damage. He
continues to suffer pain on a daily basis and has difficulty us-
ing his leg. While a jury may consider the injury suffered as
“evidence of the degree of force imposed,” McAllister v. Price,
615 F.3d 877, 882 (7th Cir. 2010), there must nonetheless be a
substantial risk of serious bodily harm (or death) for the force
to be considered deadly. Thus, for example, in Robinette v.
Barnes, 854 F.2d 909 (6th Cir. 1988), the Sixth Circuit held that
the use of a bite-and-hold technique did not constitute deadly
force even though the suspect died. The court reasoned that
use of the police dog in that case did not carry with it a “sub-
stantial risk of causing death or serious bodily harm” because
8 No. 15-1363
the dog had been trained to seize suspects by the arm and
then wait for an officer to secure the arrestee. Unfortunately,
the suspect in that case was hiding under a car and the dog
seized him by the only part he could reach—his neck—which
caused his death.
In this case, though, based on the record, we cannot deter-
mine whether using Axel carried a substantial risk of causing
serious bodily injury. Unlike in Robinette, Axel did not appear
to be trained to bite any specific part of a suspect’s body. Ra-
ther, when asked if Axel was trained to bite in any specific
location, Officer Elfreich responded that the dog would prob-
ably bite “the first thing he comes in contact with.” Nor does
it appear Axel was trained to seize the suspect and then wait
for the officer to secure him, as Axel bit Becker twice and the
second time ferociously, tearing his calf out. See Cyrus v. Town
of Mukwonago, 624 F.3d 856, 863 (7th Cir. 2010) (“Force also
becomes increasingly severe the more often it is used; striking
a resisting suspect once is not the same as striking him ten
times.”). And Officer Elfreich testified in his deposition that
Axel is capable of inflicting “lethal force” and that “there is a
probability of him doing so.” Whether the probability is a
“substantial risk” is unclear from this testimony because we
do not know the amount of force Axel was trained to use and
whether, in the field, Axel performed as trained. We also do
not know whether the cumulative risk created by Officer
Elfreich’s use of force in pulling Becker down the steps, in
conjunction with Axel’s continuing to bite him, created such
a risk. There are just too many unknowns for this court to con-
clude, as a matter of law, that Officer Elfreich’s use of Axel
constituted deadly force.
No. 15-1363 9
Of course, that also means that we are not holding the
“bite and hold” technique is per se deadly force. See, e.g., John-
son v. Scott, 576 F.3d 658, 661 (7th Cir. 2009); Tilson v. City of
Elkhart, Ind. 96 F.Appx. 413, 416 (7th Cir. 2004). Rather,
whether a “bite and hold” technique constitutes deadly force
“depends on how [the dog] is trained to behave when con-
fronting a suspect. For example, a dog trained to find a sus-
pect and bark until the dog’s handler arrives would plainly
not qualify as an instrument of deadly force. But a German
Shepherd that is behaviorally conditioned to go directly for a
suspect’s jugular would surely qualify as an instrument of
deadly force.” Chew v. Gates, 27 F.3d 1432, 1453 (9th Cir. 1994)
(Norris, J.). See also id., 27 F.3d at 1441–42 (Reinhardt, J.) (not-
ing that a dog trained to “bite and hold” uses “severe” force,
but not deciding whether it was “deadly”); id. at 1453–55 n.5
(Norris, J.) (concluding that whether the use of a police dog
constitutes deadly force is a question of fact). This case,
though, does not present either extreme. Rather, based on the
record, we cannot say whether the use of the “bite and hold”
constituted deadly force. But the force was clearly force at the
higher end of the spectrum, and the government’s intrusion
on Becker’s rights was thus significant.
Against this significant intrusion we must balance the
government’s interest at stake, because “[s]uch force, whether
or not it inherently carries a substantial risk of serious bodily
harm, ‘is not to be deployed lightly.’” Phillips, 678 F.3d at 522
(quoting Deorle v. Rutherford, 272 F.3d 1272, 1280 (9th Cir.
2001)). In considering the government interests at stake, this
court should consider “the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety
of the officers or others, and whether the suspect is actively
10 No. 15-1363
resisting arrest or attempting to evade arrest by flight.” Gra-
ham, 490 U.S. at 396. In this case, Becker’s underlying crime
was a serious felony—he was charged with holding a knife to
his brother-in-law’s throat. But that alleged crime took place
several weeks earlier and there was no evidence that Becker
was still armed at the time officers executed the arrest war-
rant. Officer Elfreich responds that Becker was concealing
himself in the house and could ambush officers when they en-
tered the home. That may have justified the officers using
Axel initially to locate Becker, but Becker is no longer chal-
lenging the initial release of Axel. Rather, Becker argues Of-
ficer Elfreich used excessive force by allowing the police dog
to continue to bite him after he “had surrendered peacefully
and without resistance, ….” Appellee Brief at 8.
Reading the facts in the light most favorable to Becker, af-
ter his mother told him police were there to arrest him, Becker
got dressed and started down the stairs within two minutes
with his hands above his head. And just two seconds after he
released Axel, Officer Elfreich encountered Becker toward the
bottom of the stairs with his hands above his head. At this
point, Officer Elfreich should have recognized that Becker
was not hiding in the house but was in the process of surren-
dering. Further, when Officer Elfreich saw Becker on the stairs
Becker had his hands in full view over his head and kept his
hands there even while being bitten by Axel. Becker did not
exhibit any sort of aggressive behavior toward Officer
Elfreich or anyone else. Phillips, 678 F.3d at 525. Nor was
Becker actively resisting arrest or attempting to evade arrest
by flight. Accordingly, while the initial release of Axel to find
Becker may have been justified because the officers believed
Becker was concealing himself in the house, once it became
clear that Becker was not concealing himself, but was actually
No. 15-1363 11
near the bottom of the staircase about 30 seconds after Officer
Elfreich purportedly told him to come down, the force used
by Officer Elfreich was no longer reasonable. Cyrus, 624 F.3d
at 863 (“[A]s the threat changes, so too should the degree of
force.”)
In response, Officer Elfreich stresses that Becker did not
obey his command to get on the ground. Becker claims that,
between his girlfriend’s screaming and the dog’s growling, he
did not hear the command. But even if Becker had heard the
command, at most Becker’s failure to get to the ground—if
that were possible with Axel biting his ankle—would “have
been passive noncompliance of a different nature than the
struggling that we have found warrants escalation of force.”
Phillips, 678 F.3d at 525. “[W]illful non-compliance [is] not the
same as ‘actively resisting’ but instead a passive ‘resistance
requiring the minimal use of force.’” Id. at 525 (emphasis
omitted) (quoting Smith v. Ball Univ., 295 F.3d 763, 771 (7th
Cir. 2002)).
Officer Elfreich also argues that Becker might have been
armed and that until Becker had been handcuffed, he still pre-
sented a risk because he might have access to a weapon. How-
ever, in every arrest there is a possibility that the individual is
armed and that does not justify allowing Axel to continue to
bite Becker while Officer Elfreich pulled Becker down the
three steps and handcuffed him. See Ellis v. Wynalda, 999 F.2d
243, 247 (7th Cir. 1993) (“While it was possible that [the sus-
pect] carried a concealed weapon, as much as it is possible
that every felon might be carrying a weapon, [the officer] had
no particular reason to believe that [the suspect] was
armed.”). Further, Officer Elfreich was himself armed and
was not alone: There were two other officers in the house by
12 No. 15-1363
the time Officer Elfreich reached the staircase, and reading the
evidence in Becker’s favor, there was another officer in the
same room as Officer Elfreich while Axel tore at Becker’s leg.
Thus, “this is not the case of a single officer attempting to con-
trol and detain multiple suspects.” Abbott, 705 F.3d at 731.
“Force is reasonable only when exercised in proportion to the
threat posed,” Cyrus, 624 F.3d at 863, and under the totality of
the circumstances, we conclude that a jury could find that Of-
ficer Elfreich used excessive force. See, e.g., Phillips, 678 F.3d at
527.
Here, we pause to stress that it is the “totality of the cir-
cumstances” considered in determining the reasonableness of
the force used. Sallenger v. Oakes, 473 F.3d 731, 739 (7th Cir.
2007) (internal marks omitted). But the district court consid-
ered each aspect of force used separately—the continuation of
the bite, Officer Elfreich pulling Becker down three steps, and
Officer Elfreich placing a knee in Becker’s back while hand-
cuffing him—and found that because Becker had surren-
dered, each exertion of force, in isolation, was unreasonable.
But remove the dog, and Officer Elfreich might have acted
reasonably in pulling Becker down three steps and placing a
knee in his back to handcuff him. Becker was charged with a
serious offense and he did not obey Officer Elfreich’s com-
mand to get on the ground. There was also the presence of an
unknown individual, and the uncertainty of whether Becker
was armed. Placing a knee on an individual’s back could be
deadly depending on the degree of force, but here Becker does
not maintain he suffered a back injury. Under the facts as a
whole, it was unreasonable for Officer Elfreich to pull Becker
down three steps and place a knee in his back while allowing
Axel to violently bite his leg.
No. 15-1363 13
B. Qualified Immunity
Taking the facts in the light most favorable to Becker, a
jury could reasonably conclude that Officer Elfreich had vio-
lated Becker’s Fourth Amendment rights by using excessive
force in arresting him. Officer Elfreich, however, argues that
he is immune from suit because it was not clearly established
at the time he arrested Becker that the force he used violated
Becker’s Fourth Amendment rights.
“[I]t was of course clearly established that a police officer
may not use excessive force in arresting an individual.”
Holmes v. Vill. of Hoffman Estate, 511 F.3d 673, 687 (7th Cir.
2001). But “while the right to be free from excessive force is
clearly established in a general sense, the right to be free from
the degree of force employed in a particular situation may not
have been clear to a reasonable officer at the scene.” Bush v.
Strain, 513 F.3d 492, 502 (5th Cir. 2008) (citation omitted). To
be clearly established the “contours of the right must be suffi-
ciently clear that a reasonable official would understand that
what he is doing violates the right. This is not to say that an
official action is protected by qualified immunity unless the
very action in question has previously been held unlawful,
but it is to say that in the light of pre-existing law the unlaw-
fulness must be apparent.” Anderson v. Creighton, 483 U.S. 635,
640 (1987).
Becker was arrested in 2011, and prior to 2011 it was well-
established that “police officers cannot continue to use force
once a suspect is subdued.” Abbott, 705 F.3d at 732. And “it
was well-established in this circuit that police officers could
not use significant force on nonresisting or passively resisting
suspects.” Id. Further, it was clearly established that only min-
14 No. 15-1363
imal force is warranted where the accused is passively resist-
ing. Phillips, 678 F.3d at 529. Additionally, we have previously
held that it was clearly established “that officers could not re-
peatedly use an impact weapon to beat into submission a per-
son who was not resisting or was merely passively resisting
officers’ orders.” Abbott, 705 F.3d at 733.
In this case, viewing the facts in the light most favorable
to Becker, he was a nonresisting (or at most passively resist-
ing) suspect when Officer Elfreich saw him near the bottom
of the staircase. Yet Officer Elfreich pulled Becker down the
steps, placed a knee in his back, and continued to allow Axel
to bite him. Case law makes clear that officers cannot use sig-
nificant force on a nonresisting or passively resisting suspect.
Further, as we have often said, “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)). Thus, the
relevant case law did not need to involve a police dog in order
to clearly establish the principle that you cannot allow a dog
to violently attack such a suspect. 2
In response, Officer Elfreich relies on Johnson v. Scott, 576
F.3d 658, 661 (7th Cir. 2009), arguing that in that case this court
“held that allowing a K-9 to continue with a bite and hold un-
2
This case does not involve a split-second delay between the officer
pulling Becker to the ground and directing Axel to release Becker. Rather,
Officer Elfreich had time to tell Becker he would not order Axel to release
him until he was handcuffed, and a witness estimated that the dog con-
tinued to violently bite Becker for up to three minutes.
No. 15-1363 15
til an officer secures a suspect with handcuffs is neither un-
reasonable nor unconstitutional.” Appellant Brief at 30–31.
Officer Elfreich stresses that in Johnson, the arrestee was orig-
inally non-compliant, but “then communicated a willingness
to surrender.” Appellant Brief at 31. Yet, as Officer Elfreich
notes, this court held that “not all surrenders are genuine …
and the police are entitled to err on the side of caution when
faced with an uncertain or threatening situation.” Johnson, 576
F.3d at 659.
Officer Elfreich’s reliance on Johnson is misplaced. In John-
son, police attempted to pull over the suspect in connection
with a reported shooting. The suspect evaded police at first,
but then was stopped by a roadblock. He jumped out of his
car and escaped into a residential yard. It was only when the
suspect was unable to escape over a fence that he turned and
said he was surrendering. At that time a police dog was in
pursuit and about six to eight feet away from the suspect. The
officer allowed the dog to seize the suspect and bite him until
he was handcuffed, about five to ten seconds later. Johnson
thus involved a fleeing suspect, wanted for a suspected shoot-
ing which had just occurred. Conversely, in this case, Becker
was not fleeing and officers were attempting to arrest Becker
for a crime which had occurred nearly a month previously;
Becker was out in the open; and he surrendered with his
hands above his head. Further, at the time of Becker’s arrest,
the case law was clearly established that more force may be
used for fleeing suspects than for suspects that are at most
passively resisting arrest. Thus, Johnson does not alter our
analysis. Rather, the case law clearly establishes that an officer
cannot use more than minimal force given Becker’s version of
facts—that he was at most a passively resisting suspect.
16 No. 15-1363
III.
When Evansville police attempted to arrest Jamie Becker,
Officer Elfreich released his police dog under the belief that
Becker was hiding in the house. However, two seconds later,
Officer Elfreich discovered Becker had been descending the
stairs to surrender with his hands above his head. Nonethe-
less, Officer Elfreich continued to allow the police dog to bite
Becker, while pulling him down three steps and placing his
knee on his back and handcuffing him. And Becker suffered
serious bodily injury as a result of the dog bite. While it is un-
clear from the record whether Axel presented a substantial
risk of serious risk bodily harm (and thus deadly force), the
force was clearly at the more severe end of the force spectrum.
A jury could reasonably find such force was excessive. Fur-
ther, because it was clearly established at the time of Becker’s
arrest that no more than minimal force was permissible to ar-
rest a non-resisting, or passively resisting, suspect, Officer
Elfreich was not entitled to qualified immunity on this record.
For these and the forgoing reasons, we AFFIRM and
REMAND for further proceedings consistent with this opin-
ion.