McCollum v. Drewitz

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

DEANDRE R. MCCOLLUM,

Plaintiff,

Case No. 21-CV-316-JPS-JPS

v.

EDWARD A. DREWITZ,

ORDER

Defendant.

1. BACKGROUND

On August 13, 2018, Racine County Sherriff’s Deputy Edward

Drewitz (“Drewitz”) attempted to pull over Deandre McCollum’s

(“McCollum”) vehicle. When McCollum failed to stop, subsequently

crashed his car, and fled on foot, Drewitz used his police dog, Friday, and

a taser to apprehend McCollum. McCollum contests the level of force

Drewitz used in this apprehension. Specifically, McCollum alleges that

(1) Drewitz deployed his taser on McCollum after McCollum had

surrendered and was not resisting arrest or fleeing; (2) Drewitz “fail[ed]

and refus[ed] to intervene to stop [his] patrol dog” from biting McCollum

after McCollum had surrendered; and (3) Drewitz released his patrol dog,

Friday, on McCollum after McCollum was handcuffed and was not

resisting arrest or fleeing, and allowed or caused Friday to bite McCollum

again on his left arm. ECF No. 6 at 5–9.1 McCollum does not appear to

1The complaint alleges four “violations” and five “claims for relief.” ECF

No. 6 at 5–9.

One of the claims for relief states that Drewitz “continued to tase Mr.

McCollum after Mr. McCollum was handcuffed and not resisting.” Id. at 9

challenge the use of Friday to terminate his flight on foot and take him

down; rather, he claims Drewitz’s use of force after the initial takedown was

inappropriate. See ECF No. 35 at 1 (plaintiff’s brief in opposition to the

motion for summary judgment, arguing against summary judgment

because a “jury can conclude that after McCollum was taken down by the

police dog and was . . . surrendering, Drewitz allowed the police dog to

continue to bite McCollum . . . and simultaneously discharged a taser at

McCollum’s left chest area”) (emphasis added).

(emphasis added). That is, McCollum’s amended complaint appears to allege that

Drewitz activated his taser against McCollum more than once, with each alleged

activation of the taser constituting a separate excessive force claim. However,

Drewitz argues that he “deployed his taser a single time [and] any claims that [he]

used the taser more than once must be dismissed.” ECF No. 29 at 6. McCollum

offers no arguments to the contrary and stipulates that Drewitz activated his taser

only once. See ECF No. 27-1 at 4 (joint statement of facts where parties agree

Drewitz “deployed his taser pulling the trigger a single time”); ECF No. 33 at 2

(McCollum’s statement of disputed facts, stating that McCollum was “still

connected to the wires of the [t]aser, which could have been reactivated at any

time” but were not); ECF No. 35 at 12–17. Since Drewitz has moved for complete

summary judgment on all of McCollum’s claims, see ECF No. 28, and the parties’

briefing does not argue any successive-tasing claim or any injury stemming from

a successive tasing, the Court will consider this claim impliedly abandoned, and

dismiss it accordingly. See Palmer v. Marion County, 327 F.3d 588, 597–98 (7th Cir.

2003) (deeming abandoned a claim that was not delineated in a brief in opposition

to summary judgment).

Two of the claims for relief state that Drewitz released Friday and then,

separately, that Friday “bit[] Mr. McCollum in his left shoulder” and “on the right

arm.” ECF No. 6 at 9. Drewitz’s brief discusses McCollum’s allegations that

“Drewitz intentionally sicced Friday upon him after he was handcuffed” and that

he was “bitten on the arm.” ECF No. 29 at 21. McCollum’s brief states that Drewitz

released Friday who “attacked McCollum again” and “bit him again, this time on

the left arm.” ECF No. 35 at 17. The Court will therefore consider impliedly

abandoned McCollum’s claim that Friday bit McCollum on the right arm after

Drewitz released Friday when McCollum was handcuffed, and dismiss it

accordingly. See Palmer, 327 F.3d at 597–98.

The Court denied without prejudice Drewitz’s initial motion for

summary judgment due to the parties’ failure to comply with the Court’s

trial scheduling order. See text order dated July 22, 2022. On August 22,

2022, Drewitz again moved (with leave of the Court) for summary

judgment. ECF No. 28. The motion is now fully briefed, ECF Nos. 29, 35,

and 37, and will be denied.

2. LEGAL STANDARD

Federal Rule of Civil Procedure 56 provides that a court “shall grant

summary judgment if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a); see Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016).

A fact is “material” if it “might affect the outcome of the suit” under the

applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A dispute of fact is “genuine” if “the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Id.

The court construes all facts and reasonable inferences in the light

most favorable to the non-movant. Bridge v. New Holland Logansport, Inc.,

815 F.3d 356, 360 (7th Cir. 2016). “At summary judgment a court may not

assess the credibility of witnesses, choose between competing inferences or

balance the relative weight of conflicting evidence; it must view all the

evidence in the record in the light most favorable to the non-moving party

and resolve all factual disputes in favor of the non-moving party.” Abdullahi

v. City of Madison, 423 F.3d 763, 769 (7th Cir. 2005). Ultimately, “the non-

movant need not match the movant witness for witness, nor persuade the

court that her case is convincing, she need only come forward with

appropriate evidence demonstrating that there is a pending dispute of

material fact.” Waldridge v. Am. Hoeschst Corp., 24 F.3d 918, 921 (7th Cir.

1994).

3. RELEVANT FACTS

The parties have submitted a joint statement of material facts as

required by the Court’s trial scheduling order. ECF No. 27-1. Alongside his

motion and the joint statement of facts, Drewitz also chose to submit a

statement of additional facts.2 ECF No. 27-2 (“SAF”). Subsequently,

McCollum submitted both his statement of disputed material facts (styled

as his “proposed findings of fact”) and his responses to Drewitz’s

additional facts, which the Court will also treat as a statement of factual

disputes. ECF Nos. 33 and 32, respectively. Drewitz then submitted a

combined reply to McCollum’s two fact statement filings. ECF No. 36.

2Submitting a statement of additional facts is not expressly circumscribed

in the Court’s trial scheduling order, see ECF No. 11 at 2, and is contemplated in

Civil Local Rule 56(b)(1)(B)–(C). But Drewitz’s choice as the movant to submit a

statement of additional facts puts the Court in an odd position. “If the parties

cannot agree upon a set of facts, or if any of the disputed facts are material, then

summary judgment is not appropriate.” ECF No. 11 at 2 (citing Fed. R. Civ. P.

56(a)). Either Drewitz’s additional facts are immaterial (and therefore irrelevant to

the Court’s summary judgment decision, and unnecessary to submit) or they are

disputed (and therefore dispositive, provided McCollum can show the dispute is

genuine). See Kreuziger v. Milwaukee County, No. 19-CV-1747-JPS, 2022 WL 3017431,

at *1 (E.D. Wis. July 29, 2022).

If Drewitz’s inclusion of the statement of additional facts was meant to

preemptively demonstrate that McCollum could not genuinely dispute any of the

material facts to his claim, Drewitz may have been better off arguing as much in

his opening memorandum of law, relying solely on the joint statement of facts,

and leaving it to McCollum to establish disputes of fact. Nonetheless, the Court

has considered the “additional facts,” McCollum’s responses, and Drewitz’s

replies to determine what facts are undisputed.

The parties spill a great deal of ink3 debating the relevance and

merits of their respective proffered facts—while their summary judgment

briefs appear to argue only the issue of qualified immunity, their fact

statement submissions essentially amount to a second set of briefs on the

underlying question of whether there is a genuine dispute of material fact.

After parsing the parties’ fact submissions, the Court will adopt the

relevant4 and undisputed facts as set forth in the parties’ joint statement of

facts with minor, non-substantive edits. Further, the Court supplements the

3Neither party has complied with the Court’s directive that statements of

“[i]temized disputed facts may not exceed one (1) page.” ECF No. 11 at 2.

4Several of the parties’ proffered facts are testimony by the parties as to

their subjective beliefs. See, e.g., ECF No. 27-1 at 4 (Drewitz’s testimony that he

“suspected Mr. McCollum could have been armed”) and 5 (McCollum’s testimony

acknowledging that “Drewitz could not have known whether Mr. McCollum was

concealing a gun and further that, from the position Mr. McCollum was in, if he

had a weapon, he could have easily reached for it”). The Court has excluded such

statements.

While these statements may be “facts” in the sense that they are thoughts

or conclusions that occurred to the respective parties, or in the sense that the

parties testified as such, when taken apart from the underlying facts giving rise to

such subjective beliefs—for example, behaviors McCollum exhibited that, in a

reasonable officer’s estimation, may or may not be consistent with being armed or

with surrendering—they are irrelevant in the excessive force “objective

reasonableness” analysis. See Graham v. Connor, 490 U.S. 386, 396–399; Pekrun v.

Puente, 172 F. Supp. 3d 1039, 1047 n.3 (E.D. Wis. 2016) (noting the objective

standard is “measured by the facts known to a reasonable officer”); Childs v. City

of Chicago, No. 13-CV-7541, 2017 WL 1151049, at *6 (N.D. Ill. Mar. 28, 2017)

(“Establishing the facts of which the officer was subjectively aware still matters in

the Fourth Amendment’s reasonableness analysis[,]” including “evidence tending

to show whether the things [an officer] claims to have observed, in fact,

happened[.]”). An officer’s subjective conclusion after perceiving certain facts and

circumstances is distinct from those underlying facts and circumstances, both of

which are distinct from the issue of whether the officer’s conclusion was

reasonable.

statement of undisputed facts by noting and analyzing factual disputes

where appropriate.

Drewitz is a Racine County Sheriff’s Deputy who, since April 1, 2012,

has been a K9 Handler working with his assigned K9 (or police dog), a

German Shepherd/Belgian Malinois mix named Friday. ECF No. 27-1 at 2

(joint statement of facts). Drewitz works primarily as a drug interdiction

officer patrolling the area of Interstate 94. Id.

On Monday, August 13, 2018, at approximately 10:46 a.m.,

McCollum fled after Drewitz attempted a lawful traffic stop of McCollum’s

vehicle. Id. The legal basis for the traffic stop was that the windows of

McCollum’s vehicle were too tinted, in violation of state law and local

ordinance. ECF No. 33 at 1 (McCollum statement of disputed facts); ECF

No. 36 at 7 (Drewitz reply to McCollum’s responses to joint statement of

facts and SAF). Drewitz states that he suspected McCollum had engaged in

a drug transaction prior to the attempted traffic stop. ECF No. 27-2 at 1.

However, the parties (1) agree that Drewitz did not directly observe a drug

transaction, see ECF Nos. 32 at 3 (McCollum responses to Drewitz SAF) and

36 at 3; and (2) have stipulated that Drewitz’s observations that gave rise to

his suspicion did not, at the time he activated his emergency lights to

initiate the traffic stop, amount to objective reasonable suspicion to pull

over McCollum for a drug offense. ECF Nos. 33 at 1 and 36 at 7.5

5The Court is not bound to adopt the parties’ stipulation that Drewitz

lacked reasonable suspicion to initiate a traffic stop for a suspected drug

transaction. Saviano v. C.I.R., 765 F.2d 634, 645 (7th Cir. 1985) (“[W]hile the parties

are free to stipulate to the factual elements of the transactions, the court is not

bound by the legal conclusions implied by the terminology utilized.”). However,

since objective reasonable suspicion for the traffic stop is not briefed or at issue in

this case, the Court will accept the stipulation. As noted supra, note 4, Drewitz’s

subjective suspicions, without reference to the facts underlying those suspicions,

McCollum observed Drewitz’s emergency lights activate and knew

that Drewitz was trying to pull him over, but he decided not to pull over

and fled anyway. ECF No. 27-1 at 2. McCollum’s vehicular flight occurred

on Main Street, a primary thoroughfare in downtown Racine, Wisconsin,

on a weekday with congested vehicular traffic intersections and other

pedestrian traffic. Id. McCollum did not recall how fast he was driving, but

according to Drewitz, McCollum’s speeds exceeded 65 miles per hour on a

roadway that had a speed limit of 25 miles per hour. Id. at 2–3. McCollum

are not relevant at summary judgment on an excessive force claim. See Graham, 490

U.S. at 396–99.

The Court references Drewitz’s claimed suspicions to contextualize the

undisputed statements that follow. Since Drewitz’s submissions have placed at

issue the facts related to his suspicion, see generally ECF No. 29, the Court recounts

and analyzes those facts. Prior to initiating the stop of McCollum, Drewitz

conducted a separate traffic stop of a different vehicle; this vehicle had pulled over

behind McCollum’s vehicle, which was a gold Oldsmobile that had its “brake

lights illuminated.” ECF No. 20 at 4 (Drewitz declaration). Drewitz observed a

man approach the Oldsmobile; Drewitz testified that the man had his left hand

“clenched” and his right hand “open freely.” Id. The man got into the Oldsmobile’s

front passenger seat. Id. After Drewitz completed the separate traffic stop, he saw

the man exit the Oldsmobile, “holding what appeared to be a pizza box.” Id.

Drewitz states the Oldsmobile did not immediately pull away from the curb. Id.

When the Oldsmobile pulled away from the curb, Drewitz followed and activated

the emergency lights on his squad car. Id. at 5.

Footage from Drewitz’s body-worn camera corroborates only that a man

entered the front passenger side of McCollum’s vehicle. ECF No. 20-2 at 2:38–2:46.

McCollum has confirmed that a man entered his car, McCollum gave the man

“Taco Bell,” and the man exited his car. ECF No. 34-1 at 13 (McCollum deposition

transcript). McCollum additionally testified that he sold this man “weed” while

he was in the car, id., and the parties stipulate that McCollum was later adjudicated

guilty for a marijuana offense. ECF No. 27-1 at 7–8.

The Court finds that the only undisputed and relevant facts are that

Drewitz saw a man get into McCollum’s car and exit with food in his hand. See

discussion infra note 16 and accompanying text.

testified that he did not run any red lights and slowed at the green lights.

Id. at 3.

After McCollum crashed his vehicle and fled on foot, Drewitz and

Friday pursued McCollum into a residential backyard. Id. Friday first

encountered McCollum about halfway up the driveway to the backyard. Id.

After continuing to run, McCollum was brought to the ground by Friday.6

Id. McCollum tried to stand up again as Friday was still attempting to

apprehend him. Id. McCollum was then brought to the ground again.7 Id.

McCollum was on his hands and knees while Friday was biting his calf

when Drewitz arrived at the location. Id.

Drewitz then commanded McCollum to get on the ground, and at

about the same time McCollum erected himself to his knees. Id. at 3–4.

Drewitz’s body-worn camera footage shows that, as McCollum gets on his

6McCollum attempts to dispute this fact by stating that Friday brought

McCollum down “without any canine warnings” from Drewitz. ECF No. 33 at 1.

This is irrelevant as McCollum has not made any claims that such warnings were

required or that the use of Friday to perform the initial takedown was improper.

The Court thus treats this fact as undisputed.

7The parties’ joint statement of facts states that “According to Deputy

Drewitz, he observed Mr. McCollum try to stand up as Friday was still attempting

to apprehend Mr. McCollum and was brought to the ground again.” ECF No. 27-

1. That is, the wording of this statement makes it appear that McCollum challenges

the accuracy of Drewitz’s account. However, McCollum has not provided any

record citations to dispute that he attempted to stand up again after Friday first

brought him to the ground, see ECF Nos. 32 and 33, and body-worn camera footage

corroborates Drewitz’s account, see ECF No. 20-2 at 5:08–5:11. The Court therefore

treats these facts as undisputed. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 586–87 (1986) (quoting First Nat. Bank of Ariz. v. Cities Serv. Co., 391

U.S. 253, 280 (1968)) (A party opposing summary judgment “must do more than

simply show that there is some metaphysical doubt as to the material facts . . .

Where the record taken as a whole could not lead a rational trier of fact to find for

the non-moving party, there is no ‘genuine issue for trial.’”).

knees, he says something to Drewitz. ECF No. 20-2 at 5:12. McCollum

contends that at this time he was saying, “I give up. I’m done.” ECF No. 27-

1 at 4.8 By this time, McCollum’s black pants had been pulled down around

his hips, revealing black boxer shorts underneath; he was also wearing a

tight-fitting short-sleeved shirt. ECF No. 20-2 at 5:12. McCollum’s hands

were by his sides; he did not have a weapon in his hands. Id. 9 Drewitz then

deployed his taser, pulling the trigger a single time, striking McCollum’s

left chest with 50,000 volts. ECF No. 27-1 at 4.

McCollum then reached for his chest where the taser barb had made

contact. ECF No. 20-2 at 5:14. He went face-first to the ground, with the taser

barb and wire still attached to his chest; his hands were in front of and

8Again, the parties’ joint statement of facts appears to frame these events

as a set of competing accounts: “According to Deputy Drewitz, he commanded

Mr. McCollum to get on the ground, and at about the same time Mr. McCollum

erected himself to his knees. . . . Mr. McCollum contends he was raising his hands

and saying “I give up. I’m done.” ECF No. 27-1 at 3–4. McCollum has not disputed

that Drewitz commanded him to get on the ground and that he then got to his

knees; body-worn camera footage shows this occur as well. See ECF No. 20-2 at

5:12. As in note 7, supra, the Court therefore treats these facts as undisputed. See

Matsushita, 475 U.S. at 586–87. McCollum’s claim that he was raising his hands is

plainly contradicted by the body-worn camera video. See ECF No. 20-2 at 5:12;

Scott v. Harris, 550 U.S. 372, 378–81 (2007) (counseling courts to “view[] the facts in

the light depicted by the videotape” if parties appear to dispute events that were

filmed). The body-worn camera audio is unclear at this point, making it difficult

to discern what McCollum says. See ECF No. 20-2 at 5:12.

9By way of disputing Drewitz’s contention that McCollum may have been

armed, McCollum references details about the appearance and positioning of his

clothing and hands. ECF No. 32 at 2–3. Drewitz responds by again pointing to his

suspicions that McCollum was armed, and the fact that McCollum’s “hands were

never up,” but otherwise does not dispute McCollum’s contentions. ECF No. 36 at

3. Body-worn camera footage confirms the appearance and positioning of

McCollum’s clothing and hands; accordingly, the Court treats these as undisputed

material facts. See Harris, 550 U.S. at 378–81.

under his body as he lowered to the ground and then rolled partially onto

his side. Id. at 5:16–19.10

It took about 40 to 50 seconds from when Friday finally brought

McCollum to the ground to when Drewitz removed Friday after securing

McCollum in handcuffs. ECF No. 27-1 at 5. During that time, McCollum

said things to the effect of “he gives up,” “he [Friday] won’t quit” and

“stop.” Id. Friday continued to hold or bite McCollum’s legs as McCollum

moved around on the ground. ECF No. 20-2 at 5:19–53. At two points,

Drewitz ordered McCollum to put his hands out to his sides, which

McCollum did. Id. at 5:22, 5:33. At another point, Drewitz ordered

McCollum to drop what he had in his hands, which McCollum also did. Id.

at 5:27. At another point, Drewitz commanded McCollum to put his hands

behind his back, which McCollum also did; at this time Drewitz applied

handcuffs. Id. at 5:43.11

10Drewitz states in his SAF that the taser “did not appear to be effective.”

ECF No. 27-2 at 2. McCollum disputes this characterization by pointing to body-

worn camera footage showing that “McCollum fell after being tased while the

police dog continued biting his legs.” ECF No. 32 at 4. Body-worn camera footage

does not conclusively show whether the taser was completely effective or

ineffective at incapacitating McCollum, since it shows McCollum continued to

move after being struck by the taser (raising his hand to his chest), and shows

McCollum either fell or lowered himself to the ground.

11Drewitz states in his SAF that he “did not remove Friday prior to

handcuffing Plaintiff because, until Plaintiff was secured in handcuffs, he

presented a risk of further flight and/or harm to Deputy Drewitz, Friday or the

public.” ECF No. 27-2 at 2. McCollum objects that “Drewitz’s body camera shows

McCollum prone and attempting to extend his arms while the dog continued

biting his legs.” ECF No. 32 at 4. Setting aside that subjective beliefs are irrelevant

in the excessive force analysis, Graham, 409 U.S. at 397, body-worn camera footage

shows Drewitz issuing various commands to McCollum, and McCollum both

moving around on the ground and responding to those commands. Accordingly,

the Court recounts what the body-worn camera footage shows as undisputed

material facts.

Once Drewitz had handcuffed McCollum, Drewitz gave Friday the

“let go” command and pulled Friday, who had already released from biting

McCollum’s calf, away from McCollum. ECF No. 27-1 at 5–6. Body-worn

camera footage then shows that, while Drewitz is holding Friday by the

collar in his right hand, McCollum rolls onto his back and raises his torso

and head up, but later rolls back onto his stomach at Drewitz’s command.

ECF No. 20-2 at 5:54–6:06. Audio from the radio unit is heard and Drewitz

raises his right hand to access the radio mounted on his shoulder. Id. at 6:11–

18. In doing so, Drewitz releases Friday’s collar. Id. at 6:18. Friday runs

toward McCollum. Id. Friday’s head goes towards McCollum’s backside

first, then his shoulder and neck area. Id. at 6:19–21. Drewitz yells a

command at Friday and then pulls Friday off McCollum. Id. at 6:19–21.12

Drewitz testified he did not release or command Friday to reengage

with McCollum after he had been handcuffed. ECF No. 27-1 at 6.13 Drewitz

12The Court has recounted the foregoing occurrences according to what the

body-worn camera footage shows, because the parties’ joint statement of facts

summarizes this encounter as follows: “Moments later [after pulling Friday away

from McCollum], Drewitz let go of Friday, at which point Friday reengaged with

McCollum.” ECF No. 27-1 at 5–6.

13Drewitz states in his SAF that he let go of Friday’s collar in order to use

his right hand to radio in his location. ECF No. 27-2 at 3. McCollum does not

dispute that Drewitz let go of Friday’s collar with the purpose of accessing his

radio. See ECF No. 32 at 5–6. McCollum, rather, attempts to dispute this fact by

arguing that “Drewitz could have held the police dog with his left hand and

accessed the radio with his right hand” or could have handled the items in his

hands differently. Id. These attempts to introduce a dispute of fact are speculative

and immaterial. See Matsushita, 475 U.S. at 586–87.

The parties dispute the reason why Friday “reengaged” with McCollum.

Drewitz contends that Friday “reengaged” with McCollum in reaction to

movement by McCollum, ECF No. 27-2 at 3, whereas McCollum states the body-

worn camera footage “does not reflect that the dog attacked McCollum due to his

movement” but rather because “Drewitz let go of the dog,” ECF No. 32 at 6.

claimed he reacted immediately to remove Friday. Id. From the time

Drewitz released Friday to when Drewitz regained control of Friday was

approximately 3 seconds. Id.

After his arrest, McCollum was transferred to Ascension All-Saints

hospital at approximately 11:36 a.m. Id. His medical records show he had

superficial lacerations to both of his legs, and was evaluated and treated for

those lacerations including wound irrigation with saline, prophylactic

antibiotics and bandages. Id. He also received an EKG to confirm normal

heart rhythms. Id. He was discharged at 12:22 p.m. Id. Photos taken at the

scene shortly after the incident depict the numerous bites. Id. (reproducing

photos).

McCollum was later charged in the Wisconsin circuit court with four

criminal counts for his conduct that day. Id. at 7; see also Racine County

Circuit Court Case No. 2018CF001160, available at

https://wcca.wicourts.gov. In the state criminal proceeding, he pled guilty

to a felony count of possession with intent to deliver more than 200 grams

of THC, and a felony count of being an operator fleeing and eluding an

officer, involving bodily harm or property damage. Id. at 8.14

4. ANALYSIS

Drewitz moves for summary judgment on that basis that Drewitz

“acted reasonably under the circumstances” as established by relevant case

law, or alternatively that, even if Drewitz’s actions were unconstitutional,

he is entitled to qualified immunity because “the law was not clearly

14The Court includes facts related to McCollum’s eventual criminal charges

because the parties have stipulated to them as undisputed; however, the Court

finds these facts irrelevant to establishing what Drewitz knew at the time of the

chase, apprehension, and arrest. See note 16 infra.

established” to put Drewitz on notice that his conduct violated McCollum’s

rights. ECF No 29 at 5. As such, Drewitz’s arguments in his brief primarily

go to analogizing and distinguishing relevant case law, rather than

establishing that no genuine dispute of material fact exists in this case—

though, as noted supra in Section 3, the parties’ fact statement submissions

argue back and forth to this effect. McCollum opposes summary judgment,

arguing that “Drewitz appears to concede [the] evidence is such that a

reasonable jury could find this use of force excessive and unreasonable,”

and that qualified immunity is not appropriate in this case because “well-

established law” at the time of the incident “provided that such significant

force cannot be used on a passively resisting individual.” ECF No. 35 at 2.

Although district courts are empowered to “grant immunity on the

basis that the right was not clearly established without determining

whether there was a violation in the first place,” they are not required to do

so. Abbott v. Sangamon County, Ill., 705 F.3d 706, 713 (7th Cir. 2013) (citing

Pearson v. Callahan, 555 U.S. 223 (2009); see also Harris, 550 U.S. at 387 (Breyer,

J., concurring) (noting that “lower courts should be free to decide the two

questions in whatever order makes sense in the context of a particular case”

since determining whether a constitutional violation occurred is at times

“highly fact-dependent”); Plumhoff v. Rickard, 572 U.S. 765, 774 (2014); Siler

v. City of Kenosha, 957 F.3d 751, 758 (7th Cir. 2020) (“In the case before us,

we believe that our obligation to provide further guidance to the bench and

bar and to the law enforcement community counsels that we . . . address

the merits of the constitutional question presented.”)

Drewitz has not made a persuasive argument that the Court should

bypass Rule 56(a)’s requirement that he show there is no genuine dispute

of material fact as to whether a constitutional violation occurred and

proceed straight to analyzing whether it was clearly established that his

conduct was unlawful.15 To the contrary, the parties’ fact statement

submissions and briefing demonstrate that the qualified immunity analysis

is bound up in the issue of whether the facts demonstrate that a

constitutional violation occurred.

The Court finds that Drewitz’s motion for summary judgment must

be denied. Summary judgment is not appropriate as to the claims that

(1) Drewitz used a taser on McCollum after he had surrendered and

(2) Drewitz allowed Friday to continue biting McCollum after he had

surrendered because the facts presented would allow for a reasonable jury

to draw divergent inferences as to whether McCollum was fleeing or

resisting arrest, or whether he posed a threat to officer or public safety.

Because resolution of these inferences bears directly on whether Drewitz is

entitled to qualified immunity, the Court does not reach this determination.

Further, summary judgment is not appropriate as to the claim that Drewitz

released Friday to reengage with McCollum after McCollum was

handcuffed because a jury could infer this use of force was unreasonable

under the circumstances.

4.1 Excessive Force Standard

Arresting officers have “the right to use some degree of physical

force or threat of force to effectuate [an] arrest,” but the degree of force must

not run afoul of the Fourth Amendment’s “insistence on [objective]

reasonableness.” Stainback v. Dixon, 569 F.3d 767, 772 (7th Cir. 2009).

15At the same time, McCollum’s reliance on Saucier v. Katz, 531 U.S. 991

(2001), in an apparent attempt to persuade the Court to conduct its qualified

immunity analysis following that case’s rigid two-step process, misses the mark,

as Pearson, 555 U.S. at 236, unquestionably made the order of this process

discretionary. ECF No. 35 at 3–4.

Whether a degree of force is reasonable under the Fourth Amendment is

influenced by “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) (citations omitted). “Whether a police

officer used excessive force is analyzed from the perspective of a reasonable

officer under the circumstances, rather than examining the officer’s actions

in hindsight.” Dawson v. Brown, 803 F.3d 829, 833 (7th Cir. 2015).

“[I]f there are sufficient undisputed material facts to establish that

the officer acted reasonably under the circumstances, the court must resolve

the issue as a matter of law, rather than allow a jury to ‘second-guess’ the

officer’s action.” Dawson, 803 F.3d at 833. On the other hand, summary

judgment is precluded if a finding of reasonableness based on the facts as

presented would require the court to “weigh all the evidence and [then]

choose between competing inferences”—this is the province of the jury.

Abdullahi, 423 F.3d at 770.

4.2 Qualified Immunity Standard

“Governmental actors performing discretionary functions are

entitled to qualified immunity from suits for damages ‘insofar as their

conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.’” Abbott, 705 F.3d

at 713 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To overcome

a defendant’s claim of qualified immunity, “the plaintiff[] must show both

(1) that the facts make out a constitutional violation, and (2) that the

constitutional right was ‘clearly established’ at the time of the official's

alleged misconduct.” Id. (citations omitted).

4.3 Use of Taser

Drewitz argues that the undisputed facts of this case, as compared

to related cases, show that his one-time use of a taser after Friday took down

McCollum was “reasonable” because Drewitz reasonably believed that

McCollum was still actively fleeing or resisting arrest and/or could have

been armed, or that his use of force is “at least subject to qualified

immunity” because the law at the time did not clearly establish that his

doing so violated McCollum’s rights. ECF No. 29 at 6–10; see also ECF No.

37 at 6–10. McCollum counters by arguing that the record shows that

McCollum was not armed and had surrendered, or that a jury could

conclude as much. ECF No. 35 at 5–7, 12–16. McCollum further argues that

Drewitz’s subjective suspicion of drug activity that gave rise to his inference

that McCollum may have been armed is both irrelevant at summary

judgment and not properly supported with record evidence. ECF No. 35 at

7. Thus, McCollum argues, Drewitz’s use of force was not reasonable and

that the law clearly established on August 13, 2018 that an officer was not

entitled to use significant force on a subject who was “at most, passively

resisting” as McCollum was. Id. at 5–7, 13.

The record before the Court demonstrates that, even where the facts

are undisputed, reasonable minds could differ as to whether a reasonable

officer would have believed (1) McCollum had not surrendered and

(2) McCollum was armed or posed a threat to safety. “Even though there

may be no dispute over the basic facts, summary judgment is inappropriate

if the parties disagree about the inferences to be drawn from those

undisputed facts.” Bowyer v. U.S. Dept. of Air Force, 804 F.2d 428, 430 (7th

Cir. 1986); see also Abdullahi, 423 F.3d at 769. Summary judgment on the

question of qualified immunity is also inappropriate where “determining

whether [defendant’s] violation of [plaintiff’s] rights was clearly

established [as unlawful]. . . requires findings of fact.” Taylor v. City of

Milford, 10 F.4th 800, 808 (7th Cir. 2021). Accordingly, summary judgment

is not appropriate on this claim.

An officer may permissibly use a taser to apprehend a suspect who

is actively resisting arrest or fleeing. Abbott, 705 F.3d at 728 (holding that

use of a taser where suspect “d[id] not contend that he had ceased resisting

or fighting” before the officer used the taser—but rather the parties agreed

that officer only used the taser until suspect ceased resisting—did not

violate clearly-established law). Use of a taser on a suspect who has

“‘displayed an unwillingness to accede to reasonable police commands’”

has been held to be reasonable. Id. (quoting United States v. Norris, 640 F.3d

295, 303 (7th Cir. 2011)).

The Court finds the undisputed facts in this case support competing

inferences as to whether a reasonable officer would have known or believed

McCollum had surrendered at the time Drewitz deployed his taser;

accordingly, this is an issue for the trier of fact to resolve. See Bowyer, 804

F.2d at 430. The undisputed facts show that McCollum was indeed actively

fleeing from Drewitz from the time he crashed and exited his vehicle to the

time Friday caught up with him. It is also undisputed that after Friday

brought down McCollum once, McCollum attempted to stand again. This

behavior is consistent with an intent to continue fleeing or resisting arrest.

Johnson v. Scott, 576 F.3d 658, 659–60 (7th Cir. 2009) (finding it was

reasonable for officer to interpret plaintiff-arrestee’s “struggling to get

away from [police dog’s] biting . . . as resistance”). On the other hand, the

undisputed facts also show that, before and at the time Drewitz deployed

his taser, Friday was biting McCollum’s leg and McCollum was on his

knees facing Drewitz. This behavior is consistent with surrender—a person

on his knees, facing a police officer, with a dog biting his leg, is less

physically able therefore less likely to flee than a subject who is on his feet.

Compare id. at 659 (finding it was reasonable for officer not to accept

plaintiff-arrestee’s surrender as genuine when plaintiff was still on his feet

facing the officer).

It is also undisputed McCollum was saying something (though it is

unclear what) to Drewitz. Reasonable jurors could, of course, disagree as to

what McCollum was saying, after watching the body-worn camera video,

and hearing testimony from both McCollum and Drewitz. Viewing this fact

in the light most favorable to McCollum and assuming he verbally

communicated his surrender—combined with McCollum’s position on his

knees with Friday biting his leg—a juror could find that a reasonable officer

apprised of all these facts could have concluded McCollum did not intend

to continue evading arrest and that use of a taser was unnecessary to

apprehend him. A juror could conversely find that a reasonable officer

would not take McCollum’s verbal indication of surrender at face value in

light of his prior behavior.

As to whether McCollum was refusing to accede to police

commands, the record is similarly ambivalent. McCollum got to his knees

at or around the same time Drewitz commanded him to “get on the

ground.” ECF No. 27-1 at 3–4. McCollum did not put his hands up,

although the record shows he was not commanded to do so. Id. While one

juror might find a reasonable officer would attribute McCollum’s actions to

intentional resistance, see Johnson, 576 F.3d at 659–60, the next juror might

find a reasonable officer would think McCollum hadn’t heard or

understood his command to “get on the ground.” See Cyrus v. Town of

Mukwonago, 624 F.3d 856, 862–63 (7th Cir. 2010) (affirming denial of

summary judgment on excessive force claim where plaintiff-arrestee’s

failure to obey officer’s commands after initial use of force was “susceptible

of different interpretations”); Becker v. Elfreich, 821 F.3d 920, 927 (7th Cir.

2016) (finding plaintiff who claimed that, while a police dog held him by

the ankle, he did not immediately comply with officer’s order to get on the

ground because he did not hear it would at most have been exhibiting

passive resistance). Which inference is more reasonable to draw from

McCollum’s lack of perfect compliance is for a jury to decide.

An interrelated question is whether McCollum posed a threat to

safety, thus justifying Drewitz’s use of the taser. An officer may permissibly

use a taser to apprehend a suspect whose “actions suggest[] an intent to use

violence to fend off further police action,’” Abbott, 705 F.3d at 728 (quoting

Norris, 640 F.3d at 303). More generally, if an officer reasonably believes a

suspect is armed and poses a threat to the safety of himself or others nearby,

the officer’s use of significant force to neutralize the threat is reasonable

provided it is proportional to the threat posed. See Cyrus, 624 F.3d at 863

(finding a jury could conclude officer’s use of taser was excessive where he

knew plaintiff-arrestee was unarmed); see generally Muhammed v. City of

Chicago, 316 F.3d 680, 683 (7th Cir. 2002) (discussing the Tennessee v. Garner,

471 U.S. 1 (1985) standard for reasonable use of deadly force). Here, the facts

support competing inferences as to whether Drewitz reasonably believed

McCollum posed a threat to officer or public safety such that use of a taser

was appropriate to obviate the threat.

Drewitz’s arguments that his use of the taser was justified rely, to

some extent, on his subjective belief that McCollum was a “suspected drug

dealer,” which he argues entitled him to believe McCollum “possibly

possess[ed] a weapon—and [was] in a position ready, willing[,] and able to

use it.” ECF No. 29 at 9. As noted above, Drewitz’s subjective suspicions

about McCollum’s supposed drug dealing activity—divorced from the

observations and occurrences giving rise to those suspicions—are not

relevant on summary judgment, especially considering that the parties

have agreed that his suspicions did not provide an independent legal basis

for initiating the traffic stop. See Graham, 409 U.S. at 397; notes 4–5 supra and

accompanying text. The undisputed facts show only that Drewitz saw a

man get into McCollum’s car and exit with food in his hand—viewing the

observations and occurrences that supported Drewitz’s suspicion in the

light most favorable to McCollum, this did not establish that McCollum had

likely engaged in a recent drug transaction.

But even if the Court accepts that the undisputed facts show that

Drewitz, at the time he deployed the taser, reasonably believed McCollum

recently engaged in a drug transaction,16 the likelihood of McCollum’s

16As noted supra note 5, the only undisputed and relevant facts are that

Drewitz saw a man get into McCollum’s car and exit with food in his hand.

Whether these occurrences, combined with McCollum’s vehicular flight after

Drewitz observed them, would cause a reasonable officer to believe a drug

transaction had occurred is not briefed and, as noted, not dispositive to the Graham

analysis.

Although the record taken as a whole reflects that the behaviors and

occurrences Drewitz observed were ultimately consistent with a drug transaction,

see Matsushita, 475 U.S. at 586–87, the Court finds that post hoc evidence of

McCollum’s later drug offense conviction is not especially probative of what

Drewitz knew at the time he initiated the investigation, especially in light of the

parties’ stipulation that Drewitz lacked reasonable suspicion of a drug transaction.

See Fed. R. Evid. 401, 403. The parties agree that Drewitz’s observations that the

man who got into McCollum’s car had his left hand “clenched” and his right hand

“open freely,” ECF No. 20 at 4 (Drewitz declaration), did not create reasonable

suspicion for a drug investigation, but even if they did, they would not support

the reasonableness of Drewitz’s drug suspicions on a summary judgment posture

being armed on that basis alone is ultimately less integral to the Court’s

Graham analysis than the other undisputed facts as to McCollum’s

appearance and behavior prior to being tased.

Setting aside whether the crime at issue supported a presumption

that McCollum had a weapon, the undisputed facts again could lead

reasonable jurors to different inferences regarding whether McCollum’s

actions were consistent with potentially possessing or trying to use a

weapon. It is beyond dispute that McCollum’s hands were by his sides just

prior to when Drewitz deployed the taser on him. See note 8 supra and

because whether to credit his testimony as to this observation is a jury

determination. See Abdullahi, 423 F.3d at 769.

McCollum’s later conviction for resisting arrest may well be probative of

whether he was in fact still fleeing or resisting arrest when Drewitz applied the

taser (i.e. whether a reasonable officer would have had a sufficient legal basis to

arrest him for that offense). However, viewing this fact in the light most favorable

to McCollum, it is irrelevant, because his later guilty plea to resisting arrest could

still be consistent with his excessive force claim. McCollum acknowledges he was

fleeing and resisting up until the initial use of force (the use of Friday to take him

down), see ECF No. 35 at 1, but claims that all uses of force after that point were

excessive because he had surrendered. See DuFour-Dowell v. Cogger, 969 F. Supp.

1107, 1118 (N.D. Ill. 1997) (“Under the facts of the present case, a finding of

excessive force is not necessarily inconsistent with the validity of [plaintiff’s]

resisting arrest conviction.”). Drewitz appears to have conceded that this resisting

arrest conviction is highly relevant to the excessive force determination, as he has

raised no defense that this conviction bars McCollum from recovery under the

doctrine of Heck v. Humphrey, 512 U.S. 477 (1994).

As to McCollum’s contention that “Drewitz’s after-the-fact, self-serving

statements that find no factual support in the record and are mere opinions or

claims regarding his subjective ‘beliefs’ or motivations[] are irrelevant” in the

objective reasonableness inquiry and “conclusory,” ECF No. 35 at 7, the Court

agrees that the statements as to Drewitz’s suspicions, without reference to the facts

underlying those suspicions, are irrelevant. However, the Court does not agree

that Drewitz’s declaration should be disregarded as evidence to the extent, as

noted above, that his statements are based on personal knowledge and are not

inconsistent with the record. See Fed. R. Civ. P. 56(c)(4).

accompanying text. His hands were near to his waistline, i.e., in a position

that, if he had a weapon tucked into his waistband, he could access it. The

undisputed facts also show that McCollum’s pants were coming down

below his hips and his clothing was tight-fitting. See note 9 supra and

accompanying text. McCollum was facing Drewitz, with his hands in view,

and Drewitz could see that McCollum did not have a weapon in his hands.

A reasonable juror might take a split-second look at McCollum and

conclude that a reasonable officer, seeing no weapon nor any place where

one would have possibly been concealed, would not have believed

McCollum was armed; another equally-reasonable juror might focus on the

positioning of McCollum’s hands to conclude this meant he probably had

a weapon nearby. Compare Holmes v. Hernandez, 560 F. Supp. 3d 1177, 1191–

93 (N.D. Ill. 2021) (denying summary judgment and qualified immunity

where “a jury could reasonably find that if a police officer chasing a suspect

on foot saw no gun when the two came face to face, mere seconds before

[the defendant] allegedly saw a gun, that suspect had no gun”) with Norris,

640 F.3d at 303 (recognizing reasonableness of taser use where suspect

“placed his hands in front of him, near his waistband area and out of view

of the officers”).

Irrespective of whether a drug crime or the offense of having

excessively tinted windows was at issue, reasonable jurors could disagree

as to whether McCollum’s flight on its own would have permitted a

reasonable officer in Drewitz’s circumstances to conclude that McCollum

likely had a weapon. Compare United States v. Lyons, 856 F. Supp. 2d 946

(C.D. Ill. 2012), aff'd, 733 F.3d 777 (7th Cir. 2013) (citing United States v.

Weaver, 8 F.3d 1240, 1244 (7th Cir. 1993) (finding officers had reasonable

suspicion to believe that suspect was armed where officers “testified that in

their experience, drivers often attempt to flee from police because they have

weapons or drugs in their vehicle” and knew suspect’s companion had

previously fled from police, possessed firearms, and possessed drugs) with

Cyrus, 624 F.3d at 863 (holding that a jury could find officer’s use of force

against suspect who “at most, committed a misdemeanor offense under

Wisconsin law [such as evading an officer on foot], and [] was not exhibiting

violent behavior” and who officer observed was unarmed was excessive)

and Ellis v. Wyndala, 999 F.2d 243, 247 (7th Cir. 2016) (“While it was possible

that [the suspect] 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.”).

Although the Court is mindful that “officers are often forced to make

split-second judgments—in circumstances that are tense, uncertain, and

rapidly evolving,” Graham, 490 U.S. at 397, the fact that Drewitz had mere

seconds between when McCollum supposedly surrendered and Drewitz

deployed force does not, on its own, necessarily entitle him to summary

judgment—after all, the Graham analysis takes into account the totality of

the circumstances. In light of the equally-reasonable inferences available

from the undisputed facts, it is for a jury to decide whether it was

reasonable for Drewitz, in the few seconds he had to draw and use his taser,

to conclude McCollum was armed and/or had not genuinely surrendered.

The Abbott case illustrates the difference between a claim that is

appropriate for summary judgment on these issues and one that is not. In

that case, while upholding the district court’s grant of qualified immunity

on the claim of one plaintiff (a male) who alleged the defendant officer

employed excessive force in tasing him, the Seventh Circuit reversed the

district court’s grant of summary judgment on the excessive force claim of

the other plaintiff, the male’s mother. Abbott, 705 F.3d at 728, 732. The court

pointed out that the male plaintiff “admit[ted] he was ‘trying to fight with’”

the defendant officer before and while he was tased repeatedly. Id. at 727.

Thus, “even viewing the facts in a light favorable to [the male plaintiff],”

the undisputed facts showed that, based on what the officer knew when he

used the taser, a reasonable officer would have believed this plaintiff had

not “ceased resisting or fighting.” Id. at 727–28. In that light, without

deciding whether the use of force was reasonable, the court held that the

officer was entitled to qualified immunity because he did not violate clearly

established law in using his taser on a suspect who was resisting as this

plaintiff was. Id. at 728–29.

On the other hand, the Seventh Circuit reversed the district court’s

grant of summary judgment on the mother-plaintiff’s excessive force claim.

Id. at 729–31. The mother alleged the officer tased her once, causing her to

fall to the ground and remain motionless, and then tased her again after she

did not comply with the officer’s order to get on her stomach. Id. at 729. On

appeal she challenged only the grant of summary judgment on the second

application of the taser. Id. The Seventh Circuit found that “there [was] no

question this plaintiff was in fact subdued by the first tasing.” Id. at 732. The

court held that a jury could find that a reasonable officer would have

recognized that the plaintiff had surrendered and was no longer actively

resisting, and if the jury made such a finding, that “the second application

of the taser could be determined by a jury to have been unreasonable.” Id.

at 730.

In so holding, the court implied that the Graham factors supported a

finding of unreasonableness given that (1) the plaintiff had committed only

a misdemeanor, nonviolent crime, (2) there was no evidence that she posed

a threat to the safety of the officer, herself, or others, and (3) though she did

not comply with the order to get on her stomach, she “at most exhibited

passive compliance.” Id. Further, the court declined to decide whether the

officer was entitled to qualified immunity, opining that although “it was

clearly established on [the date of the subject incident] that it is unlawful to

deploy a taser in dart mode against a nonviolent misdemeanant who had

just been tased in dart mode and made no movement when, after the first

tasing, the officer instructed her to turn over,” “a definitive decision on the

issue [could not] be had without further factual development.” Id. at 730–

32.

Considering the competing inferences outlined above, a jury could

conclude that McCollum had surrendered and was not a threat to safety,

that a reasonable officer would have known as much, and therefore that

Drewitz’s use of the taser constituted excessive force. Like the mother-

plaintiff’s claim in Abbott, McCollum contends that, after the initial use of

force (Friday’s two bites that brought him to the ground), he had

surrendered and, though not perfectly compliant with Drewitz’s command,

was not actively resisting arrest, and posed no threat to safety. Since

reasonable jurors could draw divergent inferences from the facts about

whether it was reasonable for Drewitz to believe McCollum was still

actively fleeing or presented a threat to officer or public safety, the Court

declines at this time to decide whether Drewitz is protected by qualified

immunity for the use of his taser. See Taylor, 10 F.4th at 808 (reversing

district court’s grant of qualified immunity at summary judgment where

“determining whether [defendant’s] violation of [plaintiff’s] rights was

clearly established [as unlawful]. . . requires findings of fact”). If a jury

draws inferences in McCollum’s favor and finds that he has established a

constitutional violation, Drewitz may yet argue that the case law in this

circuit did not clearly establish on August 13, 2018 that use of a taser in

these particular circumstances was not permitted. See id. at 812 (citing Estate

of Escobedo v. Martin, 702 F.3d 388, 398 n.4 (7th Cir. 2012) (“Though rare, trial

courts may consider qualified immunity after trial.”).

4.4 Use of Police Dog Friday Before Handcuffing

Drewitz additionally moves for summary judgment and qualified

immunity on McCollum’s claim that Drewitz’s use of the police dog Friday

to “apprehend and continue to engage with [McCollum] until [McCollum]

was secured in handcuffs” was excessive force. ECF No. 29 at 10–20.17

McCollum contends summary judgment is improper because McCollum

had surrendered and it was clearly established on the date of the encounter

that “police officers cannot continue to use force once a suspect is subdued.”

ECF No. 35 at 7–11 (quoting Abbott, 705 F.3d at 732). As above, the Court

cannot grant summary judgment because the undisputed facts support

different inferences as to whether a reasonable officer would believe

McCollum had surrendered such that any further use of Friday to hold

McCollum was improper.

17As noted supra Section 1, McCollum does not appear to challenge the use

of Friday to terminate his flight on foot. See also ECF No. 35 at 7 (heading in

plaintiff’s response brief stating that Drewitz used excessive force by “continuing

to let the dog attack and bite [McCollum] after he had shouted he was giving up

and was raising his hands”) (emphasis added). In light of this, the Court

understands McCollum’s excessive force claim with respect to use of Friday as

including the brief moment from when McCollum (on his knees and facing

Drewitz) allegedly verbally communicated his surrender to Drewitz, to when

McCollum was tased, during which time Friday had hold of McCollum’s calf. The

claim, of course, also includes Friday’s continued biting after McCollum was tased

and up until McCollum was handcuffed and Friday was removed.

An officer may use significant force to apprehend or subdue a fleeing

or resisting suspect, including having a police dog run down and bite and

hold the suspect, provided that use of force is objectively reasonable under

the circumstances as known to the officer. See Johnson, 576 F.3d at 660.

However, “significant force is unreasonable after a suspect has stopped

resisting or evading arrest.” Alicea v. Thomas, 815 F.3d 283, 288 (7th Cir.

2016). “If an officer’s threat perception changes, so too should her force

calculus. . . . The sole fact a suspect has resisted arrest before cannot justify

disregarding his surrender in deciding whether and how to use force.” Id.

at 288–89.

Summary judgment is not appropriate to the extent that McCollum

challenges the continued use of Friday to bite and hold him by the calf after

Drewitz tased him—reasonable minds could differ on whether McCollum’s

behavior after he was tased objectively indicate he had surrendered. The

undisputed facts in this case show that, after Drewitz tased McCollum,

McCollum—with the taser barbs still attached to him—fell or lowered

himself to the ground, face-first, with his hands in front of him. After that

point, McCollum was not perfectly still, at various points rolling over onto

his side or back. However, he also complied immediately with Drewitz’s

various commands to put his hands out to his sides, release any items he

was holding in his hands, and put his hands behind his back. McCollum

also said things to the effect of “he gives up,” “he [Friday] won’t quit” and

“stop.” Whether a reasonable officer viewing this set of facts would have

inferred that McCollum kept moving because he was still trying to flee, or

that McCollum had fully surrendered and his movement was merely

“passive noncompliance . . . requiring the minimal use of force,” Becker, 821

F.3d at 927 (internal quotation marks and citations omitted), is for the trier

of fact to decide.

Likewise, summary judgment is not appropriate to the extent that

McCollum argues Drewitz should have known, just before tasering him, that

he had surrendered and was not a threat to safety such that continued use

of Friday was unreasonable. As discussed in Section 4.3, whether a

reasonable officer viewing this set of facts would have inferred that

McCollum’s movements while he was on his knees and Friday held his calf

indicated he was trying to reach a concealed weapon is a jury question. If a

jury concludes no reasonable officer would have believed McCollum was

armed before being tased, then Drewitz also could not have reasonably

believed McCollum had a weapon after being tased. See Holmes v.

Hernandez, 560 F. Supp. at 1191–93. Similarly, a juror could conclude that

any officer would have understood McCollum to be “effectively trapped”

and therefore no longer resisting, Alicea, 815 F.3d at 290, because McCollum

was on his knees with Drewitz at point-blank range from him.

Resolution of McCollum’s claim as to the use of Friday is bound up

in fact determinations that only a jury can make. A jury could conclude that

any reasonable officer would have known McCollum’s surrender was

complete, and that he was not a threat to safety when he faced Drewitz on

his knees and allegedly communicated verbal surrender; if this is true, then

both the use of the taser and the continued use of Friday constitute

excessive force. A jury could alternatively conclude that McCollum’s

surrender was complete and he was no longer a threat only after McCollum

tased him, but even then, McCollum may still have an excessive force claim

for Drewitz’s failure to promptly remove Friday before handcuffing him.

Finally, the jury is best positioned to decide whether McCollum’s alleged

surrender and lack of weapons were apparent to Drewitz such that use of

both the taser and Friday immediately became unreasonable.

As noted above, whether the law clearly established that such acts

were violations of McCollum’s constitutional rights is to be determined

after the facts are clarified. The Court declines at this time to decide whether

Drewitz is protected by qualified immunity for the use of Friday to hold

McCollum before handcuffing him. See Taylor, 10 F.4th at 808.

4.5 Use of Police Dog Friday After Handcuffing

Finally, Drewitz moves for summary judgment on McCollum’s

claim that Drewitz intentionally released Friday to attack McCollum after

McCollum was handcuffed, on the basis that no reasonable jury,

considering the undisputed facts and body-camera footage, could conclude

that Drewitz did so “intentionally.” ECF No. 29 at 20–22. Drewitz argues

that his release of Friday was, at most, negligent, which is not actionable in

a Section 1983 suit. Id. (citing Neal v. Melton, 453 F. App'x 572 (6th Cir. 2011)).

McCollum argues to the contrary, contending that a reasonable jury

viewing the facts “could conclude that Drewitz’s releasing the dog again

was intentional, rather than a negligent failure to control the dog,” because

Drewitz had other options such as leashing Friday or switching the hands

with which he was holding Friday’s collar and accessing the radio. ECF No.

35 at 17.

Summary judgment is not appropriate as to this claim. The

undisputed facts show that, after giving Friday a command which the

parties agree signified to Friday to disengage from McCollum, Drewitz let

go of Friday’s collar when he reached for his shoulder-mounted radio. At

this point Friday moved quickly towards McCollum; Drewitz retook

control of Friday a few seconds later. From these facts, and considering

McCollum was unquestionably subdued at the time Drewitz released

Friday, a jury could find that, after a suspect was subdued, releasing a

police dog who had just bitten the suspect was objectively unreasonable.

Whether Drewitz intended to release the dog or was merely

negligent in doing so is irrelevant. Even accidental uses of force can

implicate the Fourth Amendment’s reasonableness standard. See Johnson v.

City of Milwaukee, 41 F. Supp. 2d 917, 928–29 (E.D. Wis. 1999) (denying

summary judgment on accidental shooting claim and finding that “if police

conduct is unreasonable under the Fourth Amendment, the plaintiff can

recover the damages caused by such conduct [without proving] the police

specifically intend[ed] to cause such damages”). Still, “an inquiry into

reasonableness requires scrutiny of the conduct leading up to” the use of

force. Id. at 929.

Under this standard, the parties’ dispute over why Friday reengaged

with McCollum—either because McCollum moved or because Drewitz

relinquished control of the dog, see supra note 12—is irrelevant, because

regardless of the reason for Friday’s reengagement, Drewitz could be liable

if this use of force is considered unreasonable. At the same time, a jury

could conclude that Drewitz’s action to retake control of Friday within

seconds after releasing him indicates that his use of force (whether

subjectively intentional or accidental) points to the objective reasonableness

of this use of force. The Court notes that, in any event, other courses of

action that might have been available to Drewitz (such as leashing Friday)

are irrelevant in the reasonableness analysis. See Abbott, 705 F.3d at 724

(counseling against “hindsight” analysis).

The parties also dispute whether McCollum sustained any injury

from this encounter. See, e.g., ECF No. 29 at 21 (Drewitz brief arguing that

medical records do not reflect treatment for any injury on either of

McCollum’s arms). “Injury is not an element of an excessive-force claim,”

but rather, it is evidence from which the jury can draw reasonable

inferences about “the degree of force imposed and the reasonableness of

that force.” McAllister v. Price, 615 F.3d 877, 882 (7th Cir. 2010); see also

Holmes v. Village of Hoffman Estates, 511 F.3d 673, 687 (7th Cir. 2007) (“A

factfinder might conclude that [plaintiff’s] injuries were slight but

nonetheless that [the officer] employed more force than was justified.”) It is

for the jury to decide whether McCollum’s injuries from Friday’s

reengagement were de minimis, and if so, whether this means Drewitz’s

release of Friday was reasonable.

As above, pending resolution by a jury of whether the use of force at

issue in this case was reasonable or excessive, the Court declines to

determine whether qualified immunity shields Drewitz from liability for

this claim.

5. CONCLUSION

Because the facts of this case present significant issues only capable

of resolution by a jury, the Court denies Defendant Edward Drewitz’s

motion for summary judgment. The Court must defer on the corollary legal

question of qualified immunity until the underlying factual issues are

decided. The Court dismisses the two impliedly-abandoned claims

specified supra note 1.

Accordingly,

IT IS ORDERED that Defendant Edward Drewitz’s motion for

summary judgment, ECF No. 28, be and the same is hereby DENIED; and

IT IS FURTHER ORDERED that Plaintiff Deandre McCollum’s

impliedly-abandoned claims that Defendant Edward Drewitz (1) continued

to tase McCollum after McCollum was handcuffed and not resisting and

(2) released his police dog Friday and allowed Friday to bite McCollum on

the right arm after McCollum was handcuffed be and the same are hereby

DISMISSED.

Dated at Milwaukee, Wisconsin, this 3rd day of October, 2022.

B HE □□

= —

PUY fa ae adel.

J. P\Stad?rdueller

U.S. District Judge

Page 32 of 32