Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

BACKES v. VILLAGE OF PEORIA HEIGHTS (November 10, 2011)

David Backes is a veteran of the Persian Gulf War and suffers from post-traumatic stress disorder. In late 2006, he lived with his wife in East Peoria, Illinois. At the time, he was taking a number of medications. He also kept two shotguns at home. On the night of October 17, he and his wife argued. He left home and drove aimlessly. He called his wife on a number of occasions and at least one of them suggested that he might commit suicide. Eventually, he decided against it, parked his car in a park, took a sleeping pill, and fell asleep in the car. In the meantime, his wife had notified the police of the situation. The police dispatcher reported that Backes was suicidal, medicated, and had access to weapons. The Peoria Heights Police Department located his vehicle about 2:00 a.m.. Various officers kept surveillance over the vehicle for several hours at a safe distance. They saw that the drivers window was down and that Backes was mostly motionless in the driver’s seat. Fearing for his safety as well as that of others, the Peoria Heights Police Chief contacted the Central Illinois Emergency Response Team. Members of the team arrived at the site and formulated a plan to bring an end to the situation. They shot pepper balls into the car and immediately removed Backes and took him to a nearby hospital. Backes and his wife brought an excessive force complaint pursuant to § 1983, as well as state law claims for battery, against the Police Chief and the Village. Magistrate Judge Gorman (C.D. Ill.) granted summary judgment to the defendants. The Backes appeal.

In their opinion, Seventh Circuit Judges Bauer, Manion, and Kanne affirmed. In order to be liable for a § 1983 suit, a defendant must have been personally responsible for the allegedly unconstitutional behavior. A supervisor's direct participation is not required if he approves of the unconstitutional conduct. The conduct the Backes complain of, however, was carried out by the members of the emergency response team. The Police Chief was not involved in any way. The fact that he may have been consulted, and may have agreed with the proposed course of action, does not change the outcome. The Court turned to the state law battery claims asserted against both the Police Chief and the Village. Again, the Court concluded that the Police Chief's involvement in the operation was not enough to make him, or, in turn, the Village, liable for any battery.

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COMMON v. CITY OF CHICAGO (October 20, 2011)

Chicago police officers Guy Nelson and Sean O'Brien responded to a call that a robbery suspect could be found in a south-side convenience store. As they approached the store, they saw three men that fit the description they had been given by the store owner leaving the store. Considering the inconsistent evidence in a light most favorable to the officers, a) Officer Nelson identified himself, b) Nelson ordered the three men to stop and show their hands, c) two of the three men complied, d) Michael Smith did not comply (even after repeated requests), e) Nelson removed a gun from his pocket, f) Smith grabbed for the wrist of Nelson's gun-hand, and g) Nelson fatally shot Smith. The medical examiner found five small bags of cocaine in Smith's chest and trachea and concluded that they made their way there through the upper airway. Smith's estate brought suit against the officers and the City, alleging excessive force. Judge Kennelly (N.D. Ill.) ruled, in limine, that the cocaine evidence was admissible. After trial, a jury found in favor of the defendants. Smith's estate appeals.

In their opinion, Seventh Circuit Judges Posner, Rovner, and Tinder affirmed. The question for the jury in this case was whether Officer Nelson's actions were objectively reasonable, given the facts and circumstances known to him at the time. The general rule is that the jury should not consider information that the officer did not know at the time of his actions. The Court noted two exceptions to the general rule -- to challenge the credibility of a witness 1) by attacking his capacity to observe, recall, or relate or 2) by pointing out contradictions in his testimony. Here, the testimony of the various witnesses was inconsistent. The estate's version was that Smith complied with the officers' request and stood quietly, with arms raised, when Officer Nelson shot him. The evidence that Smith possessed five small bags of cocaine makes it more likely that his conduct fit the description given by the officers rather than that of the other witnesses. It would, for example, explain why he was less willing to cooperate and why he did not want to face the officers and show his hands. It therefore fits within the exception to the rule that the jury should only consider what the officer knew. The Court added that the district court could have excluded the evidence on unfair prejudice grounds. Appellate review of a district court’s findings in this area is quite deferential. The Court concluded that the district court did not err in admitting the evidence.

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PADULA v. LEIMBACH (August 29, 2011)

Jerome Clement experienced a hypoglycemic episode while driving to work one day. He turned into a parking lot and stopped near a truck scale. A 911 call triggered a police response. The responding officers were told to respond to an intoxicated man in a car. The officers tried to wake Clement. Clement did not comply with police orders, spoke in angry tones, and even swung at an officer. The officers physically removed him from the car and attempted to handcuff him. He continued to resist. The officers continued to use force, including hitting him with a baton, kneeling on his head, and spraying him with Mace. Eventually, a paramedic arrived and transported him to the hospital. He died two weeks later of unrelated causes. His estate brought suit under § 1983 for wrongful arrest and excessive force against the officers and for failure to train and supervise against the City of East Chicago, Indiana and its Police Department. Judge Van Bokkelen (N.D. Ind.) granted summary judgment to the defendants. The estate appeals.

In their opinion, Seventh Circuit Chief Judge Easterbrook and Judges Flaum and Sykes affirmed. The Court first addressed the wrongful arrest charge and found ample evidence to support probable cause. Clement drove off the road, was slouched over in his car, was unkempt, and had bloodshot eyes. Furthermore, there was no indication, such as a necklace or bracelet, that he suffered from diabetes. Summary judgment on the unlawful arrest claim was appropriate. The Court turned to the excessive force claim and applied the objectively reasonable standard. Again, the Court found ample evidence in the record to support the conclusion that the officers responded reasonably. Clement refused to comply with police orders and resisted their attempts to handcuff him. The officers' response was commensurate with the situation. With respect to the inadequate training and supervision counts, the Court concluded that they were waived or, if not waived, they failed because the underlying arrest and excessive force counts failed.

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FRIZZELL v. SZABO (July 27, 2011)

Thomas Frizzell was on his way to work one November afternoon in Springfield, Illinois when Sangamon County Sheriff’s Deputy Carl Szabo noticed (he asserts) that Frizzell was not wearing a seatbelt. Szabo followed Frizzell for several minutes, until Frizzell arrived in the parking lot of his place of employment. Their accounts of what happened next differ substantially. Deputy Szabo testified that Frizzell ignored his instructions to return to his car, ran toward the door of the building, and attempted to enter the building. Frizzell asserts that he was in a hurry because he was late for work, that he did not originally realize that Szabo was talking to him, and that he wanted to clock in before talking so as not to be late. In any event, Szabo used his taser on Frizzell. When Frizzell continued to ignore orders to stay down, Szabo tased him several more times. Finally, Szabo used pepper spray and physically subdued Frizzell. Frizzell lost his job and claims that he felt weak and tired for several weeks following the incident. He did not, however, seek medical treatment. Frizzell brought suit against Szabo pursuant to §§ 1983 and 1988 for excessive force and false arrest. Szabo brought a counterclaim for battery, seeking $75,000. After trial, Judge Scott (C.D. Ill.) refused to give a nominal damages instruction. She changed her mind and gave such an instruction, however, after the jury sent back a note asking if they had to award damages if they found in plaintiff's favor. The jury found against Frizzell on the false arrest claim, found against Szabo on the counterclaim, and found in Frizzell's favor on the excessive force claim but awarded nominal damages. Chief Judge McCuskey (C.D. Ill.) denied a motion to alter the award and also denied attorney's fees. Frizzell appeals.

In their opinion, Seventh Circuit Judges Kanne and Evans and District Judge Clevert affirmed. The Court noted that a nominal damages instruction can be appropriate where: a) an officer uses both justifiable and excessive force but any injury relates to the justifiable force, b) where a jury might conclude that the evidence of injury is not credible, or c) where the degree of the injury itself does not support greater damages. The Court found two of those situations in this case. First, the jury could have concluded that the use of the taser was justifiable but the pepper spray afterwards was not -- but that Frizzell's injuries related only to the use of the taser. Second, Frizzell produced very little evidence of injury related to the pepper spray. The district court did not err in giving the instruction or in denying the motion to alter the judgment. The Court turned to the motion for attorney's fees. On that issue, the district court properly considered the difference between the amount plaintiffs sought and the actual award, the significance of the legal issue at stake, and the litigation's public purpose. The Court agreed that those factors weighed against any award of fees. First, although Frizzell never requested a specific award at trial, he did refer to Szabo's $75,000 counterclaim request as a starting point. The difference between $1.00 and anything near $75,000 is significant. Second, Szabo did not prevail on his false arrest claim and prevailed without measurable damages on his excessive force claim. He cannot claim that he prevailed on any significant legal issue. Finally, there was no public purpose served by the litigation. It was simply a private injury.

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 BROOKS v. CITY OF AURORA (July 6, 2011)

Early one June evening in 2008, two Aurora police officers were staking out a location suspected of being a front for drug activity when they observed Michael Brooks driving through an adjacent parking lot. They knew Brooks but had never seen him drive. When they checked, they discovered that his license had been suspended for over a decade. Before they could take any action, however, they were called away. One of the officers later completed a traffic ticket and obtained a warrant for Brooks's arrest. The police served the warrant a few weeks later. When they arrived at his apartment, Brooks was barbecuing. An officer took him aside and explained the reason for the visit -- that he was under arrest. Brooks denied driving the car, claimed that it was not even working at the time, pulled his wrists away, and started backpedaling and waving his arms. The officer fired two bursts of pepper spray and ultimately immobilized Brooks. He was arrested and charged with the driving offense and resisting a peace officer. He was acquitted of both charges. Brooks filed suit against the police officers and the City of Aurora pursuant to § 1983. He alleged false arrest, false imprisonment, and excessive force. The defendants moved for summary judgment on the false arrest and excessive force claims and asserted qualified immunity on the excessive force claim. Judge Coar (N.D. Ill.) found probable cause and granted summary judgment on the false arrest claim. Sua sponte, he granted summary judgment on the false imprisonment claim for the same reason. Finally, he found that defendants were entitled to qualified immunity on the excessive force claim.

In their opinion, Chief Judge Easterbrook and Judges Ripple and Tinder affirmed. The Court first addressed probable cause on the false arrest and imprisonment claims. Probable cause depends on the facts and circumstances at the time of the arrest and whether a prudent person, with the officers knowledge, would believe that the suspect has committed, is committing, or is about to commit an offense. The offense at issue here, resisting a peace officer, requires "a physical act of resistance or obstruction . . . that impedes, hinders, interrupts, prevents, or delays the performance of the officer’s duties, such as by going limp or forcefully resisting arrest." Although Brooks claims that he had no intent to resist (but just to tell his wife to bring his wallet to the station), the undisputed evidence in the record supports the proposition that a reasonable officer could have believed that he did. Although there is disputed evidence regarding whether Brooks was actually driving a car on the night in question, that evidence is not material. First, resisting even an unlawful arrest violates the statute. Second, Brooks was not actually arrested and detained until after the officers had probable cause to believe that he had resisted the arrest. The Court saw no error in the false imprisonment summary judgment. The analysis is the same for both claims and Brooks never proffered a reason why an opportunity to respond to the false imprisonment claim was necessary. With respect to the excessive force claim, the Court did not decide the deprivation prong of the qualified immunity test. It noted that courts have held the use of pepper spray appropriate in resisting arrest situations and that courts have considered it excessive if its use is unprovoked or gratuitous. Here, regardless of Brooks's intentions, a reasonable police officer could have concluded that he was resisting arrest and that the use of pepper spray would be appropriate. Therefore, the officer is entitled to qualified immunity.

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SALLENGER v. CITY OF SPRINGFIELD (December 17, 2010)

In early 2002, Andrew Sallenger was living with his mother, his sister, and his sister's four children at his mother's house in Springfield, Illinois. Sallenger suffered from bipolar disorder and schizophrenia. In the middle of the night on April 30, Sallenger experienced a psychotic episode. He was screaming, breaking things, and running around the house naked. His sister called 911. She warned the police of his condition and his strength (6 feet tall, 262 pounds). Three officers responded and eventually, although not without great difficulty, were able to subdue him. They used a hobble, a device that limits movement by strapping one's lower legs to one's hands. A few minutes after the officers subdued Sallenger with a hobble, he stopped breathing. The officers removed the hobble and administered CPR, without success. Sallenger’s Estate brought several claims against the officers and the City, including a § 1983 claim alleging a Fourth Amendment violation for failing to adequately respond to Sallenger’s medical needs and a Monell claim against the City for failure to train in the use of the hobble. They also brought excessive force claims against the three officers. Those claims were tried to a jury and resolved in the officers' favor. Judge Scott (C.D. Ill.) granted summary judgment against the Estate on the medical needs and Monell claims. The Estate appeals.

In their opinion, Seventh Circuit Judges Posner, Rovner, and Sykes affirmed. The Court applied an objective reasonableness standard to the medical needs claim and considered four criteria: the need for medical attention, the severity of the need, the nature of the required treatment, and any police interests. The Estate's case rests on the timing of two police calls and the inferences that can be drawn from them. One call came in at 2:15 a.m. In that call, one of the officers reported that Sallenger was unconscious. The second call, which came in at 2:22 a.m., was from a police lieutenant reporting that he was at the scene. Combined with the fact that the lieutenant was present when efforts to resuscitate began, the Estate argues that it is entitled to an inference that the officers waited seven minutes after knowing Sallenger was unconscious before they tried to resuscitate him. The Court rejected this inference. All inferences must be drawn in the Estate’s favor on summary judgment, but those inferences must be reasonable. Here, the officers and Sallenger's sister all testified that resuscitation efforts began as soon as they knew that he was unconscious. The lieutenant also testified that his call did not necessarily take place immediately upon his arrival. In light of that testimony, and without more support, the inference requested by the Estate is unreasonable. The Court also agreed with the district court's summary judgment ruling on the Monell claim. A municipality cannot be liable unless there is an underlying constitutional violation by an employee. Here, a jury found that none of the officers was liable for a constitutional violation on the excessive force claim and the Court affirmed summary judgment for the officers on the medical needs claim. Therefore, there can be no municipal liability. 

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CARLSON v. BUKOVIC (September 2, 2010)

June Carlson and her adult handicapped son Paul were shopping at their local Walmart store when Paul scratched himself on a fire hose box. They reported the incident to store personnel and were in the process of completing some forms when things got heated. The store manager eventually felt threatened and the police were called. Officer Bukovic interviewed the manager and the Carlsons. June Carlson, a woman in her 80s, became very upset, raised her voice, and accused the manager of lying -- but refused to cooperate with the Officer's interview. The manager told Officer Bukovic that he wanted Ms. Carlson to leave the store. After Ms. Carlson refused several requests to leave, Officer Bukovic gently placed his hands on her arm to guide her out. She began screaming and flailing about. Eventually, she calmed down and left the store -- and sued. She asserted a § 1983 Monell claim against the City of Darien and a Fourth Amendment excessive force claim against Bukovic. Magistrate Judge Nolan (N.D. Ill.) granted the City's summary judgment motion on the Monell claim. The excessive force claim was tried to a jury, which found that no “seizure” had occured. Carlson appeals.

In their opinion, Judges Ripple, Manion, and Sykes affirmed. The principal issue before the Court was Carlson's argument that the mere touching by Bukovic was a seizure as a matter of law and "per se" unreasonable. The Court rejected the argument. The Fourth Amendment inquiry has two prongs -- whether there was a seizure and, if so, whether it was unreasonable. There are a number of factors that go into the "totality of the circumstances" test to determine whether there was a seizure. Physical contact is one of those factors. But so are the number of officers, the display of a weapon, and the tone of voice. The Supreme Court has held that the purpose of the contact is relevant in physical contact cases. The mere fact that there is a touching or physical contact does not automatically create a seizure. The Court concluded that the district court properly submitted the question to the jury. Given the Court's disposition of the excessive force claim, it also rejected Carlson’s appeal of the Monell claim. There can be no municipal Monell liability without an underlying constitutional violation.

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FORREST v. PRINE  (August 31, 2010)

In responding to a 911 call, the Rock Island County Sheriff's police came upon Roger Forrest. Forrest was uncooperative and belligerent. After he struck an officer, the police employed a taser several times to subdue him. He was arrested and charged with a felony. Pursuant to County procedure, he was subject to a strip search. Forrest refused to cooperate, instead pacing back and forth in a small room, shouting obscenities and insulting the officers present. One of those officers, Michael Prine, warned him on several occasions that he would use a taser again if Forrest did not comply with the search. Eventually, he did use the taser. The testimony differs on this point. Prine and other officers testified that he aimed the taser at Forrest's back -- Forrest testified that Prine aimed at his face. In any event, one of the darts did hit his face. He fell and suffered a head injury. Forrest brought an action pursuant to § 1983 against Officer Prine. He complained of the use of excessive force in violation of the Fourth and Fourteenth Amendments. Magistrate Judge Gorman (C.D. Ill.) granted summary judgment to Prine. Forrest appeals.

In their opinion, Judges Posner, Ripple, and Kanne affirmed. The Court first commented on the basis for Forrest's claim. The Fourth Amendment grants certain rights to be free from excessive force but applies only in the search and seizure context. The Court admitted that it had not precisely defined the temporal contours of Fourth Amendment protection but concluded that allegations arising in the pretrial detention process, such as Forrest's, are clearly outside its temporal bounds. On the other end of the spectrum, the Eighth Amendment protects sentenced prisoners from claims of unnecessary or excessive force or punishment. Forrest's claims arise in the pretrial detainee context and are governed by the due process clause of the Fourteenth Amendment. In analyzing Forrest's claim, the Court applied an Eighth Amendment approach. The due process clause provides at least as much (and maybe more -- but Forrest did not argue so) protection as the Eighth Amendment. The test under the Eighth Amendment is whether the force is "unnecessary and wanton infliction of pain." The relevant factors include the need for and amount of force, the existence of a threat, any effort to use less force, and the extent of any injury. Applying that test here, the Court concluded that no reasonable factfinder could find Prine's use of force impermissible. Forrest was a large man in a small space, pacing and shouting, threatening and swearing, clenching his fists and refusing to follow orders. Prine warned him several times that he would use the taser if Forrest did not follow instructions. Finally, the Court refused Forrest's invitation to infer some malicious intent from the mere fact that one dart struck him in the face. There is simply no evidence to support such an inference.

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MCALLISTER v. PRICE (August 12, 2010)

Frank McAllister, who suffers from diabetes, was driving his car alone early one afternoon when he suddenly went into a severe hypoglycemic state. McAllister's car struck two other vehicles before coming to rest. Although McAllister was not injured, witnesses described him as staring into space and convulsing. Burns Harbor police officer Jerry Price responded. The dispatch advised Price that the accident may have been caused by an intoxicated driver. Price confronted McAllister. When McAllister failed to follow his instructions or respond to his questions, Price removed him from his car with force. According to a witness, Price threw him to the ground, put his full weight on his back, and handcuffed him. Eventually, and only after the suggestion of a bystander, Price checked McAllister for medical alert identification. He discovered a diabetes alert necklace on McAllister and released him. McAllister suffered from a broken hip and a bruised lung. He brought a § 1983 complaint against Price. Judge Van Bokkelen (N.D. Ind.) denied Price's request for summary judgment on qualified immunity grounds, concluding that there were genuine issues of material fact. Price brought an interlocutory appeal.

In their opinion, Judges Bauer, Flaum, and Tinder affirmed. A qualified immunity defense requires that a court answer two questions: whether there is a constitutional deprivation and whether the constitutional right was "clearly established" at the time. The Court first addressed the deprivation -- whether Price used excessive force. Three factors mattered: the degree of severity of any offense, whether the victim was a safety threat, and whether the victim was a flight risk. Before addressing the merits of the excessive force claim, the Court resolved two evidentiary issues. First, it concluded that the district court did not err in allowing evidence of McAllister's hip injury, even though there was no conclusive medical testimony that Price's actions caused the injury. Some causal evidence is all that is required for the jury to consider the evidence. Second, the Court concluded that the district court did not err in considering McAllister's diabetic condition. Although a police officer is not required to accommodate unknown conditions, here McAllister was obviously suffering from something and Price was trained in recognizing diabetes, trained in recognizing intoxication, and trained to look for medical alert identifications. On the merits of the constitutional deprivation question, the Court concluded that there was sufficient evidence for a jury to conclude that the amount of force used was excessive. On the second question, the Court concluded that the case law in effect at the time of the incident was sufficient to "clearly establish" McAllister's rights to be free from the excessive force as alleged.

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ESTATE OF ESCOBEDO v. BENDER (April 5, 2010)

At 4:24 on a summer morning in 2005, Rudy Escobedo called 911 and told the dispatcher that he was high on cocaine, armed, and suicidal. According to the complaint filed by his estate, the Fort Wayne Police grossly mishandled the situation. It alleges that, over the succeeding five hours, the police: a) engaged the Crisis Response Team and the Emergency Response Team, b) did not follow normal communication protocol, c) never complied with Escobedo's request to have his psychologist at the scene, d) decided to use teargas to force Escobedo from his apartment, e) actually used twelve times the incapacitating concentration of teargas, f) were forced to cut off communication with Escobedo because of the strength of the teargas and the location of the officer in communication with him, g) broke down his apartment door and threw in more teargas and a flash bang grenade, h) broke down the door to his bedroom and threw in more grenades, and i) shot and killed him. Escobedo never threatened anyone other than himself. Escobedo 's estate filed a complaint pursuant to § 1983, alleging that the use of the teargas and flash bang grenades constituted excessive force. On the individual officers' motion for summary judgment, the district court granted in part and denied in part. Its denial of the officers’ summary judgment motion on the excessive force claim was based on the courts' ruling that they were not entitled to qualified immunity. The individual officers appeal.

In their opinion, Circuit Judges Manion (concurring in part and dissenting in part) and Kanne and District Judge Kendall affirmed. The Court noted that the only issue before it was whether the individual officers were entitled to qualified immunity. Furthermore, the officers limited their appeal to the second prong of the Saucier qualified immunity test -- whether the law was clearly established at the time of the events in question that the use of teargas and flash bang grenades under the circumstances presented constituted excessive force. The estate has the burden of meeting the "clearly established" test but can do so in one of two ways: either by presenting a closely analogous case or by establishing that the conduct is so obviously a violation of constitutional rights that any reasonable0 officer would know. Although the Court briefly discussed the latter test, they declined to apply it because of its conclusions with respect to closely analogous case law. The Court addressed the case law with respect to teargas and flash bang grenades separately. With respect to teargas, the Court found controlling precedent and a clear trend in other circuits that the use of teargas is unreasonable when: a) the target is an individual, b) the individual poses no actual threat, c) there are no hostages, d) the individual has not committed a crime and is not attempting to flee, e) the individual, though suicidal, is not homicidal, and f) the individual suffers some incapacity. The Court found those elements present here. With respect to flash bang grenades, the Court noted that it had earlier found the use of such devices reasonable in Molina. It distinguished Molina, however, on the grounds that the officers there had serious personal safety concerns. It then cited dicta from other circuit cases which suggests that the use of the devices might not be reasonable if used in close proximity to a suspect or when the suspect is not dangerous. Although recognizing the relative dearth of precedent in the area and the lack of any precise guidance, the Court concluded that the holdings and dicta in the cases that do exist clearly show that the use of the device in the circumstances of this case is unreasonable.

Judge Manion concurred in part and dissented in part. With respect to the teargas, he agreed with the result although he would have reached it under the patently obvious violation route rather than the closely analogous case law route. He disagreed, however with the Court's conclusion on the use of flash bang devices. Judge Manion criticized the majority's treatment of Molina. Although he agreed that the cases were distinguishable, he considers Molina the leading authority in the circuit on the issue and should not have been limited to its facts in favor of dicta from other cases. Even the dicta in the other cases, he believed, did not come close to meeting the "clearly established" standard.

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GONZALEZ v. CITY OF ELGIN (August 20, 2009)

A number of former high school classmates attended a wedding. Afterward, they gathered at the home of one of them. They visited late into the night and early morning. As the group was about to break up, one of them (who had left earlier to go to a local restaurant) returned to tell the others that his wife and brother were being assaulted outside the restaurant. Several members of the group went to the restaurant. The fight was over and the attackers were gone – but the police had arrived. Here, the testimony in the record supports two versions of a story. Several members of the group described a situation in which a number of police officers were out of control. They testified to beatings, kicks, and pepper-sprays. The police, on the other hand, described an unruly mob, disorderly conduct and resisting arrest. The police arrested several of the group. Most of the charges were dismissed. Six members of the group brought an action against the City and several police officers. They alleged violations of the Fourth Amendment, under § 1983, for unlawful arrest, excessive force, and failure to intervene. They also alleged state law malicious prosecution and a respondeat superior claim against the City. The district court granted summary judgment to the defendants and added that the defendants were also entitled to qualified immunity. Plaintiffs appeal.

In their opinion, Judges Posner, Flaum and Wood reversed and remanded. On the unlawful arrest claim, the Court noted that the plaintiffs had to show an arrest without probable cause. The Court reviewed the evidence in support of probable cause for the arrests for mob action, resisting arrest and battery. In each case, the Court concluded that the facts were contested. The plaintiffs’ version supported a conclusion that probable cause did not exist. On the excessive force claims, the Court again criticized the lower court for not viewing the facts in a light most favorable to plaintiffs. A reasonable jury could find that the police used greater force than necessary considering the totality of circumstances. For the same reason, the failure to intervene judgment was reversed. Next, the Court had little difficulty in rejecting the qualified immunity argument. The plaintiffs stated constitutional violations of an arrest without probable cause and the use of excessive force. Both constitutional rights are clearly established. Finally, the Court reversed with respect to the state law claims for much the same reason – there were genuine issues of material fact.

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BAIRD v. RENBARGER (August 3, 2009)

Joe Baird owned a body shop in Shelbyville, Indiana. After he purchased an antique automobile, he had his office call the police department to check the vehicle's motor number. Although an officer verified the number, he soon thereafter reported his suspicion to a prosecutor that the number was altered. He obtained a search warrant for the automobile and he and several other officers, including Officer Renbarger, executed the warrant. Officer Renbarger carried a 9 mm. submachine gun and rounded up a number of people in the surrounding shops and warehouses, including a group of Amish men. He held the individuals for almost two hours while the search was conducted. The officers located the car and concluded that the motor number had not been altered. Baird brought suit against the officers pursuant to 42 U.S.C § 1983. He alleged violations of the Fourth Amendment and state law claims for trespass, negligence and false imprisonment. The district court denied Renbarger's motion for summary judgment on the basis of qualified immunity. Renbarger appeals.

In their opinion, Judges Bauer, Flaum and Wood affirmed. The Court set out the two-step Saucier inquiry: whether a constitutional right has been violated and whether that right was clearly established at the time of the conduct. Whether the seizure was unreasonable is an objective test requiring an analysis of the severity of the alleged crime, the presence of an immediate threat and whether there is any resistance. Here, these factors all support the unreasonableness of the seizure. The only alleged crime concerned a vehicle motor number. No officer had any reason to believe there was any imminent threat. No one resisted the detention. The Court concluded that a jury could find that Renbarger violated Baird's rights. With respect to the second step of the inquiry, the Court concluded that it was clearly established that police officers are not entitled to point guns at citizens when there is no suggestion of any danger. The Court concurred with the district court's denial of qualified immunity.

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CATLIN v. CITY OF WHEATON (July 21, 2009)

Police officers from the City of Wheaton and several neighboring jurisdictions conducted a major law enforcement operation targeting a drug conspiracy in August of 2003. Several Wheaton police officers were given the task of arresting Robert Ptak. Ptak was considered armed and dangerous and had a history of resisting arrest. The officers were dispatched to a local motel where Ptak was believed to be staying. They had a photograph and a physical description and had been told that he was seen riding a yellow sport motorcycle. The officers located an individual that met Ptak’s physical description on a yellow sport motorcycle in the vicinity of the motel. Unbeknownst to the officers, however, the individual was not Ptak. It was Jonathan Catlin. According to Catlin, the officers jumped out of their vehicle while they were stopped at a traffic light and ran toward him. They grabbed him, threw him down, and eventually handcuffed him. They did not identify themselves as police officers until after the arrest. They soon realized their mistake and released Catlin within 20 minutes. Catlin brought an action for false arrest and excessive force under § 1983. The district court found that the defendants were entitled to qualified immunity and granted summary judgment. Catlin appeals.

In their opinion, Judges Cudahy, Posner and Kanne affirmed. The Court stated that Catlin had to show a violation of a constitutional right and that the right was clearly established at the time. With respect to the false arrest claim, the Court found no constitutional violation. The officers had a reasonable belief that the person they arrested was Ptak. The fact that they might have taken additional steps to be more certain does not affect the reasonableness of their belief. With respect to the excessive force claim, the Court stated that the reasonableness of force depends on the circumstances of the case. The Court conceded that summary judgment is frequently not appropriate in excessive force cases because of factual disputes. Here, given the absence of any factual dispute and the particular circumstances of who the police thought they were dealing with, the Court concluded that the presence of excessive force was a question of law. The Court was troubled by the officers' failure to identify themselves until after the arrest. Earlier identification might have reduced the need for the amount of force used. Even accepting it as a close question, however, the Court concluded that the right, if it existed, was not "clearly established." The Court was unaware of any court of appeals decision holding that police officers have a constitutional obligation to identify themselves when carrying out a public arrest. Qualified immunity therefore attached.

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