SHIRLEY v. RABERSTEIN

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

HENRY SHIRLEY, )

)

Plaintiff )

) Cause No. 1:19-cv-4111-RLM-MJD

v. )

)

OFFICER RABERSTEIN, OFFICER )

BAKER, JOHN PERKINS, MICHAEL )

ANTONELLI, AND WILLIAM WOGAN, )

)

Defendants )

ORDER

Henry Shirley, representing himself, has sued members of the Indianapolis

Metropolitan Police Department—Sergeant John Perkins and Officers Lee

Rabensteine, Michael Antonelli, Christopher Baker, and William Wogan—

claiming that they violated his Fourth Amendment right against unreasonable

seizures by using excessive force when they arrested him. The defendants have

moved for summary judgment. The record before the court discloses no genuine

issue of material fact, and the defendants have shown that on these facts, they

are entitled to judgment as a matter of law. The court grants summary judgment

to the defendants.

I. BACKGROUND

Consistent with the procedures that govern summary judgment rulings,

the following facts are drawn from a view of the summary judgment record as

generous as reasonably possible to Mr. Shirley (as the motion’s opponent), with

all factual disputes resolved, and all reasonable inferences drawn, in his favor.

The court is hampered in that effort by the absence of much factual content in

Mr. Shirley’s summary judgment response and the lack of any designation of

evidence in support of that response.

Mr. Shirley’s encounter with the defendant IMPD officers took place on

January 25, 2019. Four days before that, an IMPD detective had advised all

IMPD officers that Mr. Shirley was suspected of a violent attempted home

invasion robbery with shots fired from the day before, and that Mr. Shirley had

an active arrest warrant for possession of a firearm by a serious violent felon.

On January 25, an IMPD officer pulls Mr. Shirley over for a traffic stop and

approaches the car. Mr. Shirley speeds off. The officer chases him, lights and

sirens engaged, as Mr. Shirley drives through several residential yards. Mr.

Shirley finally stops and enters a house that he doesn’t own or live in. A handgun

falls from the car as he gets out. A woman and her children are evacuated from

inside the house.

IMPD dispatch notifies the defendants of the chase and the defendants go

to the house that Mr. Shirley entered. Mr. Shirley has barricaded himself in the

attic. The attic’s floor is comprised of spaced apart wooden beams laying

horizontally across the house. Drywall is installed on the underside of the beams,

which constitutes the ceiling of the main floor directly beneath the attic. Loose

insulation is between the beams. Mr. Shirley is hiding between two beams and

has covered himself with insulation. Drywall bears the weight of his body.

Negotiators call Mr. Shirley’s cell phone, but the calls went straight to

voicemail. Police use a P.A. system to announce the presence of a SWAT team

and order Mr. Shirley several times to come out with his hands up. Mr. Shirley

doesn’t appear. After several minutes of announcements, SWAT officers deploy

flashbangs outside the front and back of the house. No Mr. Shirley. SWAT officers

deploy tear gas into the house a few minutes later. Still no Mr. Shirley. About

ten to twenty minutes after the gas was deployed—and some two hours after Mr.

Shirley was first ordered to come out—SWAT officers enter the house. Sergeant

Perkins is among the officers who entered the house, but he leaves quickly after

the first floor is cleared.

Mr. Shirley hears the officers enter, but he says nothing. The officers order

Mr. Shirley to come out from the attic; he doesn’t comply. Officers deploy tear

gas into the attic; Mr. Shirley doesn’t come out and stays quiet.1 Officer Baker is

wearing SWAT hearing protection that amplifies noise that would allow him to

hear any attempted communications from Mr. Shirley.

At this point, the drywall on which Mr. Shirley was laying cracks near the

lower part of his body. The officers below hear the crack and watch as the ceiling

slowly begins to drop. A large piece of drywall finally gives way and falls, exposing

Mr. Shirley’s leg. Officers order Mr. Shirley to come down (more than a dozen

times); Mr. Shirley doesn’t come down. In Mr. Shirley’s recollection, he extends

his wrists to signal that he was surrendering because the opening is too small

1 Officer Rabensteine later attested that he had been exposed to tear gas during

training, that it’s extremely unpleasant, and that it takes a very dedicated person to

withstand it.

for him to come down from the attic. Mr. Shirley remembers saying, “I give up”;

but Officers Rabensteine, Baker, Wogan, and Antonnelli remember silence.

Officer Rabensteine fires a beanbag round that hits Mr. Shirley in the leg.

Mr. Shirley retreats up into the attic, repositioning himself across the wooden

beams so as not to fall through the drywall. Officer Rabensteine orders Mr.

Shirley (multiple times) to come down, but Mr. Shirley doesn’t comply, so Officer

Rabensteine fires another beanbag round at Mr. Shirley’s left hip. Mr. Shirley

falls from the attic on to the floor of the room beneath.

Mr. Shirley is rolling from side-to-side on his back, punching, kicking, and

screaming.2 The officers fear that Mr. Shirley might have another weapon but

can’t get control of Mr. Shirley to put handcuffs on him. Rather than comply with

commands to stop resisting and to put his hands behind his back, Mr. Shirley

rolls over and tries to stand up.

Officer Baker yells “taser, taser, taser” but Mr. Shirley doesn’t surrender,

so Officer Baker deploys his taser. Mr. Shirley still doesn’t surrender. He grabs

towards his waistband as if trying to pull the taser prongs out of his clothing.

Officer Baker yells “taser, taser, taser” and deploys his taser again; still Mr.

Shirley doesn’t surrender. Officer Wogan orders Mr. Shirley to stop resisting and

kicks Mr. Shirley’s right thigh, 3 but Mr. Shirley doesn’t surrender. Officer Wogan

2 Officer Rabensteine compared Mr. Shirley’s behavior to a toddler that doesn’t want to

have his pants put on.

3 IMPD officers are trained to target the common peroneal nerve, located on the outside

of the upper leg, to temporarily disable the leg. Kicking the common peroneal nerve

causes temporary loss of motor control of the leg.

kicks Mr. Shirley twice more in the same spot while ordering Mr. Shirley to stop

resisting. Mr. Shirley still doesn’t surrender.

Officer Antonelli yells “taser, taser, taser,” and deploys his taser when Mr.

Shirley doesn’t surrender. When that taser strike doesn’t subdue Mr. Shirley,

Officer Antonelli tries to tase him again. Mr. Shirley moves to stand up just as

Officer Antonelli deploys his taser, and the probe hits Mr. Shirley in the cheek,

rendering Mr. Shirley unconscious. The officers finally handcuff him.

Officers Wogan and Rabensteine carry Mr. Shirley outside where a doctor

immediately treats him. Mr. Shirley regains consciousness in the ambulance.

Mr. Shirley is arrested for two counts of possession of a handgun by a serious

violent felon based on the outstanding arrest warrant, and for felony resisting

law enforcement.

Mr. Shirley filed this suit under 42 U.S.C. § 1983 against defendants for

violation of his Fourth Amendment right against unreasonable seizures because

he says that the defendants used excessive force when they arrested him. He

seeks $10,000,000 in compensatory damages and $20,000,000 in punitive

damages. The defendants have moved for summary judgment.

II. STANDARD OF REVIEW

“Summary judgment . . . is proper only if the pleadings, discovery

materials, disclosures, and affidavits demonstrate no genuine issue of material

fact such that [the movant] is entitled to judgment as a matter of law.” Protective

Life Ins. Co. v. Hansen, 632 F.3d 388, 391-392 (7th Cir. 2011); Fed. R. Civ. P.

56(a). The court’s function at the summary judgment stage isn’t “to weigh the

evidence and determine the truth of the matter but to determine whether there

is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249

(1986). In making that determination, the court must construe the evidence, and

all inferences that can reasonably be drawn from the evidence, in the light most

favorable to the non-moving party. Id. at 249, 255 (“Credibility determinations,

the weighing of the evidence, and the drawing of legitimate inferences from the

facts are jury functions . . . .”). The movant bears the burden of showing that

there is no genuine issue of material fact, but the non-moving party “may not

rest upon mere allegation or denials of his pleading, but must set forth specific

facts showing that there is a genuine issue for trial.” Id. at 256.

To defeat a summary judgment motion, “the nonmovant must present

definite, competent evidence in rebuttal,” Parent v. Home Depot U.S.A., Inc., 694

F.3d 919, 922 (7th Cir. 2012), and “must affirmatively demonstrate, by specific

factual allegations, that there is a genuine issue of material fact that requires

trial[,]” Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 490 (7th Cir. 2007)

see also Fed. R. Civ. P. 56(e)(2). Summary judgment is “not a dress rehearsal or

practice run; it is the put up or shut up moment in a lawsuit, when a party must

show what evidence it has that would convince a trier of fact to accept its version

of events.” Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir.

2005).

III. DISCUSSION

The Fourth Amendment of the U.S. Constitution protects the people

against “unreasonable seizures.” U.S. Const. Amend IV. That means that, in the

context of an arrest, the Fourth Amendment protects people from the use of

excessive force by the police. Gupta v. Melloh, 19 F.4th 990, 995-996 (7th Cir.

2021). “An officer's use of force is unreasonable if, judging from the totality of

the circumstances at the time of the arrest, the officer uses greater force than

was reasonably necessary to effectuate the arrest.” Phillips v. Cmty. Ins. Corp.,

678 F.3d 513, 519 (7th Cir. 2012). “[T]he test of reasonableness under the Fourth

Amendment is not capable of precise definition or mechanical application,

however, its proper application requires careful attention to the facts and

circumstances of each particular case, including the severity of the crime at

issue, whether the suspect poses an immediate threat to the safety of the officers

or others, and whether he is actively resisting arrest or attempting to evade arrest

by flight.” Graham v. Connor, 490 U.S. 386, 396 (1989) (internal citations

omitted). “A court must evaluate whether the officer's actions were objectively

reasonable in light of the facts and circumstances confronting that officer,”

Gupta v. Melloh, 19 F.4th at 996 (citing Graham v. Connor, 490 U.S.at 396), and

acknowledge “the fact that police officers are often forced to make split-second

judgments—in circumstances that are tense, uncertain, and rapidly evolving—

about the amount of force that is necessary in a particular situation[,]” Graham

v. Connor, 490 U.S.at 396.

The defendants say that they are entitled to qualified immunity. “The

doctrine of qualified immunity protects government officials ‘from liability for civil

damages insofar as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have known.’”

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982)). It protects “all but the plainly incompetent or those who

knowingly violate the law . . . . If officers of reasonable competence could disagree

on the issue [of whether or not an action was constitutional], immunity should

be recognized.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

“Once the defense of qualified immunity is raised, ‘it becomes the plaintiff's

burden to defeat it.’” Id. (citing Wheeler v. Lawson, 539 F.3d 629, 639 (7th Cir.

2008)). “To overcome a defendant's invocation of qualified immunity, a plaintiff

must show: ‘(1) that the official violated a statutory or constitutional right, and

(2) that the right was “clearly established” at the time of the challenged conduct.’”

Green v. Newport, 868 F.3d 629, 633 (7th Cir. 2017) (quoting Ashcroft v. al-Kidd,

563 U.S. 731, 735 (2011)). The court has discretion “to decide which element of

the qualified immunity defense to address first. If the answer to either question

is no, the defendant official is entitled to qualified immunity.” Muhammad v.

Pearson, 900 F.3d 898, 904-905 (7th Cir. 2018).

Mr. Shirley alleges that the officers used unreasonable force in arresting

him when they kicked, tased, and shot him with beanbag rounds while he was

falling through the ceiling and after he was on the ground. He can only prevail

against those defendants whom he can show were personally involved in using

unreasonable force. Colbert v. City of Chicago, 851 F.3d 649, 657 (7th Cir. 2017);

Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983) (“Section 1983 creates

a cause of action based on personal liability and predicated upon fault. An

individual cannot be held liable in a § 1983 action unless he caused or

participated in an alleged constitutional deprivation . . . . A causal connection,

or an affirmative link, between the misconduct complained of and the official

sued is necessary.”).

Sergeant Perkins

An officer may be personally involved if “he fail[s] to take reasonable steps

to attempt to stop the use of excessive force used by his fellow officers . . . .”

Sanchez v. City of Chicago, 700 F.3d 919, 926 (7th Cir. 2012). But a failure-to-

intervene theory of § 1983 liability requires a showing that the officer knew of

another officer’s use of excessive force and had the “ability to stop the

wrongdoing . . . .” Id. at 928 (“Officer A's failure to intervene in the wrongdoing

of Officer B, despite A's knowledge of and ability to stop the wrongdoing, is a

form of personal involvement in B's misconduct.”).

The defendants submit evidence that Sergeant Perkins left the house

before Mr. Shirley fell through the ceiling. Perkins Aff. ¶ 15-17. Mr. Shirley

doesn’t cite anything to controvert this evidence, so the court considers that fact

undisputed. See, e.g., Packman v. Chicago Trib. Co., 267 F.3d 628, 646 (7th Cir.

2001). If excessive force was applied to Mr. Shirley while he was falling from the

ceiling and after he was on the ground, it couldn’t have come from Sergeant

Perkins because he was outside at that time. And Sergeant Perkins can’t be liable

under a failure-to-intervene theory because, being outside the house, he

wouldn’t have had knowledge of what force was being used to effect Mr. Shirley’s

arrest.

Sergeant Perkins is entitled to summary judgment.

Officer Rabensteine

“It is well established that a police officer may not continue to use force

against a suspect who is subdued and complying with the officer's orders. But

that principle depends critically on the fact that the suspect is indeed subdued.”

Johnson v. Scott, 576 F.3d 658, 660 (7th Cir. 2009) (internal citations omitted).

Officers are not expected to take an apparent surrender at face value when a

suspect “ha[s] used every method at his disposal to flee from the police” and only

stops fleeing when he has no more available options of escape. Id.

After Officer Rabensteine fired the first beanbag round at Mr. Shirley’s

thigh, Mr. Shirley testified that he showed his hands from the attic and said, “I

give up.” [Shirley Dep. 39:12-21; 41:7-9]. He then said he retracted his hands

and grabbed the wooden beams to save himself from falling. [Shirley Dep. 40:24-

25; 41:1-6]. Officer Rabensteine attested that he never heard Mr. Shirley say

anything, and that Mr. Shirley’s hands were visible for only a second or two,

making it impossible to handcuff Mr. Shirley. Officer Rabensteine then fired

another beanbag round at Mr. Shirley’s hip, and that’s when Mr. Shirley fell from

the ceiling.

Mr. Shirley had used every option of escape available to him up until he

finally fell. His apparent surrender didn’t establish that Mr. Shirley was unarmed

and not otherwise a threat to officers. And his behavior leading up to that point

indicated that Mr. Shirley was uncooperative and unpredictable. “[T]he right to

make an arrest . . . necessarily carries with it the right to use some degree of

physical coercion . . . to effect it.” Graham v. Connor, 490 U.S. at 396. The facts

that Mr. Shirley was wanted for a violent attempted home invasion robbery, that

a gun had dropped from the car that Mr. Shirley fled from, and that he had done

everything in his power to evade arrest warrant the use of some force to effect

his arrest. See id. A reasonable officer could think that the use of the beanbag

rounds was necessary to help control Mr. Shirley. Mr. Shirley hasn’t established

that Officer Rabensteine violated his statutory or constitutional rights, as he’s

required to do to survive summary judgment once the defense of qualified

immunity is raised. So Officer Rabensteine is entitled to summary judgment.

Officers Baker, Wogan, and Antonnelli

Mr. Shirley alleges in his amended complaint that he was knocked

unconscious when he fell headfirst from the attic and hit the floor. Officers

Rabensteine, Baker, Wogan, and Antonnelli describe his behavior as actively

resistant and potentially dangerous. These conflicting narratives would usually

constitute a fact in dispute.

But “[t]oday's Federal Rules . . . [require] a ‘party asserting that a fact

cannot be or is genuinely disputed’ to support that position by citing ‘particular

parts of materials in the record’ or, conversely, ‘showing that the materials cited

do not establish the absence or presence of genuine dispute, or that an adverse

party cannot produce admissible evidence to support the fact.’” Hinterberger v.

City of Indianapolis, 966 F.3d 523, 527 (7th Cir. 2020) (citing Fed. R. Civ. P.

56(c)); cf. S.D. Ind. L.R. 56–1(e). Officers Rabensteine, Baker, Wogan, and

Antonnelli cite their affidavits to support their versions of the events, while Mr.

Shirley doesn’t cite any evidence at all. His brief makes no citation to the record,

and he didn’t file a designation of evidence in support of his response brief.

“[S]ummary judgment may only be defeated by pointing to admissible

evidence in the summary judgment record that creates a genuine issue of

material fact, and it [isn’t] the district court's job to sift through the record and

make [the non-movant’s] case for him.” United States v. 5443 Suffield Terrace,

Skokie, Ill., 607 F.3d 504, 510 (7th Cir. 2010); cf. S.D. Ind. L.R. 56–1(h).

Attorneys and self-represented parties shouldn’t expect judges to search

the record for fact issues like pigs searching for truffles, (United States v. Dunkel,

927 F.2d 955, 956 (7th Cir. 1991), but Rule 56(e)(3) authorizes a summary

judgment court to do just that, and there is a truffle to be found by rooting

around in this record. While Mr. Shirley didn’t designate any evidence for

consideration on the summary judgment motion, the defendants submitted the

plaintiff’s deposition. [Doc. No. 65, ex. 5]. Mr. Shirley testified in that deposition

that he landed on his head when he plunged out of the ceiling, and he was

unconscious as the defendants kicked and tased him. [Shirley Dep. 44:22-23;

45:8-10; 55:6-8]. That testimony, if properly placed before the court, would

create a factual dispute about the need for the force the police used.

A summary judgment court’s discretion to consider evidentiary material

not cited to the court is relatively new, having come into being with the 2010

amendments to the federal rules. This issue isn’t commonly seen in federal

litigation, and our court of appeals hasn’t yet had occasion to identify the factors

that should guide a court deciding whether to exercise that discretion. The

Advisory Committee Note to the 2010 amendment to Rule 56(e)(4) suggest that

a court might want to exercise this new power in cases involving pro se litigants:

“Many courts take extra care with pro se litigants, advising them of the need to

respond and the risk of losing by summary judgment if an adequate response is

not filed. And the court may seek to reassure itself by some examination of the

record before granting summary judgment against a pro se litigant.”

Pre-amendment guidance from the Supreme Court differed; courts weren’t

to relax the rules at the summary judgment stage even for a self-represented

litigant:

It is no doubt true that there are cases in which a litigant proceeding

without counsel may make a fatal procedural error, but the risk that a

lawyer will be unable to understand the exhaustion requirement is

virtually nonexistent. Our rules of procedure are based on the assumption

that litigation is normally conducted by lawyers. While we have insisted

that the pleadings prepared by prisoners who do not have access to

counsel be liberally construed, and have held that some procedural rules

must give way because of the unique circumstance of incarceration, we

have never suggested that procedural rules in ordinary civil litigation

should be interpreted so as to excuse mistakes by those who proceed

without counsel. As we have noted before, in the long run, experience

teaches that strict adherence to the procedural requirements specified by

the legislature is the best guarantee of evenhanded administration of the

law.

McNeil v. United States, 508 U.S. 106, 113 (1993) (citations and quotations

omitted). The 2010 amendment provided the authority the Supreme Court

withheld, but McNeil remains as a powerful policy statement.

Since 2010, the court of appeals has continued to affirm district courts

that didn’t go beyond the evidentiary material properly before them. See, e.g.,

Huon v. Mudge, 597 Fed, Appx. 868, 870 (7th Cir. 2015). District courts have

occasionally tried to accommodate pro se litigants. See, e.g., Grothian v.

Dalrymple, 2018 WL 1124441, at *2 (N.D. Ind. Feb. 26, 2018).

So at this point in the law’s development, the court, having found the

deposition testimony in which Mr. Shirley testified he was unconscious after the

ceiling gave, has discretion to give Mr. Shirley and the defendants a chance to

properly support or address the fact, Fed. R. Civ. P. 56(e)(1), or to consider the

evidence of Mr. Shirley’s efforts to resist restraint after his fall to be undisputed,

Fed. R. Civ P. 56(e)(2), ignore the deposition testimony and grant summary

judgment to the defendants for all the reasons discussed in this opinion so far,

Fed. R. Civ P. 56(e)(3), or enter some other “appropriate order[,]” Fed. R. Civ P.

56(e)(4).

That Mr. Shirley is representing himself favors the first approach—re-

opening the summary judgment record for more briefing. The Advisory

Committee noted the pro se litigant as a factor to be considered in this situation.

But four others factors lead the court to decide the summary judgment motion

without reference to his deposition testimony. First, the Supreme Court’s

cautionary language already quoted from McNeil v. United States, 508 U.S. at

113, somewhat tempers the weight of Mr. Shirley’s pro se status. Second, while

Mr. Shirley’s work is plainly not that of an attorney, his performance in his self-

representation has exceeded what courts usually see from pro se litigants. He

has articulated his positions well. Third, Mr. Shirley’s summary judgment

response demonstrates that he knew of his obligation to present and identify

what he wanted the court to consider when deciding the summary judgment

motion.4 The absence of an evidentiary submission by Mr. Shirley can’t be

attributed to a pro se litigant’s unawareness of the summary judgment

procedures.

And fourth and finally, this isn’t an instance of a litigant omitting a record

citation to support a factual assertion. Notwithstanding his deposition testimony

and the allegations of the second amended complaint, Mr. Shirley’s summary

judgment response contains no factual assertion that he lost consciousness

when he hit the floor. Re-opening the briefing—or taking any other fair

alternative the court can conceive—would change the facts on which Mr. Shirley

has chosen to rely. The court would be allowing a litigant to provide a record

citation for a fact the litigant no longer appears to assert.

For all of these reasons, the court, while cognizant that the summary

judgment record contains a potential genuine issue of material fact to which

4 “The non-moving party may oppose the motion with any of the evidentiary materials

listed in Rule 56(c), but reliance on the pleadings alone is not sufficient to withstand

summary judgment. . . . In addition, the non-movant is obligated to file with the court

a ‘Statement of Genuine Issues’ supported by appropriate citation to the record

outlining all material facts to which the non-movant contends exist that must be

litigated. . . . The non-moving party must come forward with specific facts showing

that there is a genuine issue for trial.” [Doc. 72, at 7-8].

neither side cited, and cognizant that the court has discretion to consider (or not

to consider) that uncited evidence in deciding this summary judgment motion,

declines to consider the deposition testimony not cited in the parties’

submissions.

“If a party fails to properly support an assertion of fact or fails to properly

address another party’s assertion of fact as required by Rule 56(c), the court may

. . . consider the fact undisputed for purposes of the motion . . . [or] grant

summary judgment if the motion and supporting materials—including the facts

considered undisputed—show that the movant is entitled to it. . . . .” Fed. R. Civ.

P. 56(e)(3); cf. Packman v. Chicago Trib. Co., 267 F.3d 628, 646 (7th Cir. 2001)

(“[Non-movant plaintiff] introduced no evidence, other than her own conclusory

assertions . . . . Thus, she failed to establish a genuine issue of fact . . . .”). The

court takes the defendants’ version of the events as an undisputed fact because

Mr. Shirley hasn’t cited any evidence to support his side of the story.

Mr. Shirley did everything in his power to evade arrest up until he fell from

the attic. Even when he was on the ground with nowhere to escape, he kicked

and punched at officers. He reached for their belts—where officers carry their

weapons. He was rolling side-to-side, making the defendants concerned that he

was concealing a weapon, “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).

While “[f]orce is reasonable only when exercised in proportion to the threat

posed,” and force “becomes increasingly severe the more often it is used[,]” Cyrus

v. Town of Mukwonago, 624 F.3d 856, 863 (7th Cir. 2010), it is often justified

when “[a] suspect poses a threat of serious physical harm to [officers] or to

others[,]” Ford v. Childers, 855 F.2d 1271, 1274 (7th Cir. 1988).

“[S]ummary judgment is often inappropriate in excessive-force cases

because the evidence surrounding the officer's use of force is often susceptible

of different interpretations.” Catlin v. City of Wheaton, 574 F.3d 361, 367 (7th

Cir. 2009). But this isn’t such a case. Mr. Shirley just wouldn’t surrender. He

was also wanted in connection with a violent crime, had led police on a car chase

that put everyone involved at danger, and a gun had dropped from the car he

fled from. The force Mr. Shirley deems unreasonable was insufficient until the

last taser strike. Reasonableness is measured considering the totality of the

circumstances, Phillips v. Cmty. Ins. Corp., 678 F.3d at 519, recognizing that

officers are forced to make split-second decisions in circumstances that are

tense, uncertain, and rapidly evolving, Graham v. Connor, 490 U.S.at 396. Under

these circumstances, Officers Baker, Wogan, and Antonnelli used a reasonable

amount of force to effectuate Mr. Shirley’s arrest, so they are entitled to summary

judgment.

IV. CONCLUSION

For the forgoing reasons, the court GRANTS the defendants’ motion for

summary judgment. [Doc. No. 64].

SO ORDERED.

ENTERED: March 31, 2022

/s/ Robert L. Miller, Jr.

Judge, United States District Court

Distribution:

HENRY SHIRLEY

720042

BRANCHVILLE - CF

BRANCHVILLE CORRECTIONAL FACILITY

Electronic Service Participant – Court Only

Mathew Rayman

OFFICE OF CORPORATION COUNSEL

mathew.rayman2@indy.gov