Scott Rabin v. Michael Flynn

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-3904

S COTT R ABIN ,

Plaintiff-Appellee,

v.

M ICHAEL F LYNN, T ODD K NEPPER,

JOHN Q UINLAN, et al.,

Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:09-cv-08049—Elaine Bucklo, Judge.

A RGUED A PRIL 2, 2013—D ECIDED JULY 9, 2013

Before R OVNER, W ILLIAMS, and SYKES, Circuit Judges.

W ILLIAMS, Circuit Judge. After the police noticed

Plaintiff Scott Rabin carrying a holstered gun on his hip

in public, he was handcuffed and detained for about one-

and-a-half hours while the officers sought to confirm

the validity of his carrying license. None of the three

detaining officers were familiar with the unique license

Rabin had on hand, one carried primarily by private

detectives and security officers. When it was finally

2 No. 11-3904

confirmed that Rabin’s license was legitimate, he was

released. Rabin then sued the individual officers for

unlawful arrest and excessive force, arguing that the

officers should have known what that license was and

should have released him as soon as he presented it. The

district court denied the officers’ motion for summary

judgment to the extent that it sought qualified immunity

for both claims.

We find that the officers are entitled to qualified immu-

nity on the unlawful arrest claim, because even if the

officers had known what that type of license was, it still

would have been reasonable under clearly established

law for them to detain Rabin while they verified the

legitimacy of a license to carry a deadly weapon. Though

the length of Rabin’s detention was unfortunate, it was

largely caused by the government’s failure to have an

efficient system of license verification. As for Rabin’s

excessive force claims, which allege that the unneces-

sary tightness of the handcuffs exacerbated his pre-

existing medical conditions, the evidence shows that

Rabin only told Deputy Sheriff Todd Knepper about his

medical issues. So while Knepper is not entitled to quali-

fied immunity on that claim, the other two officers

are. Therefore we affirm the district court’s denial of

qualified immunity for Knepper on the excessive force

claim, but reverse the district court’s denial of qualified

immunity for the rest of the claims.

I. BACKGROUND

Because the officers moved for summary judgment,

we construe the facts in favor of the plaintiff. On Decem-

No. 11-3904 3

ber 19, 2009, Plaintiff Scott Rabin, working as a licensed

private investigator, was serving a court order on a regis-

tered corporate agent at an office complex in Buffalo

Grove, Illinois. Deputy Michael Flynn, who was also

serving process in that area, saw that Rabin was wearing

a holstered gun on his hip. Flynn stopped Rabin and

asked if he had a gun. Rabin said yes, explained that he

was a licensed private investigator, and presented a

carrying license called a “tan card” (formally called a

“firearm control card”).1 It is undisputed that Rabin’s tan

card legally authorized Rabin to carry a gun at the time

he was stopped by Flynn. See 225 ILCS 447/35-35.

Flynn, however, did not know what a tan card was. So

he confiscated Rabin’s gun, which was fully loaded, and

made a radio call to his dispatcher asking him to run

the tan card through a system called LEADS (“Law En-

forcement Agencies Data System”). The dispatcher said

he could not verify the card through LEADS, that the

tan card “might be a concealed carry card,” and that he

would call the “Springfield desk.” After a few minutes,

Flynn called the dispatcher again to see if Springfield

1

The firearm control card is called a “tan card” because of the

unique tan color of the card. See Haywood v. City of Chicago,

378 F.3d 714, 715 (7th Cir. 2004) (a “ ‘tan card’ . . . certifies that

the cardholder, being employed by a licensed security

agency . . . and having received firearms training, may carry

a weapon while working or commuting”). Rabin also

presented Flynn a Private Detective License and a Firearm

Owner’s Identification Card, but these cards did not indep-

endently authorize Rabin to carry a firearm and are not

directly relevant to our analysis.

4 No. 11-3904

knew anything about the tan card, and was told that it

did not.

Deputy Sheriff Todd Knepper, who had heard on the

radio that Flynn was with a man with a gun, arrived on the

scene, confirmed that Rabin was the person who was

armed, then handcuffed and searched him. Rabin re-

peated to Flynn and Knepper that he was authorized to

carry the gun, but Knepper also did not know what a

tan card was and put Rabin into the back of Knepper’s

vehicle.

Deputy Sheriff John Quinlan then arrived in a “cage”

car. Flynn updated him on the situation, but Quinlan

also did not know what a tan card was. Knepper brought

Rabin out of his vehicle and put him in Quinlan’s cage

car for transport to the police station. Rabin then told

the three officers that his handcuffs were “tight.” Quinlan

removed the handcuffs and placed his own handcuffs

on Rabin (the parties agree that switching handcuffs in

this manner is normal when someone is being trans-

ported to the station). Rabin then asked Knepper if the

handcuffs could be left off, told him that he had a “bad

neck” and a “bad hand in the past,” and that the second

pair was even tighter than the first pair. Knepper did not

do anything about the handcuffs, and Rabin was left in

the cage car for about 25 minutes. During this time, Rabin

tried to get the officers’ attention from within the closed

car and yelled a couple times, “Can you please come

here?”, but no one responded. Quinlan then removed

the handcuffs and put Rabin in a non-cage squad car.

Rabin was taken to the Buffalo Grove Police Department,

a 30-minute drive.

No. 11-3904 5

Eventually, the Lake County State’s Attorney’s Office

confirmed that Rabin could lawfully carry the gun. (There

is nothing in the record that explains how exactly

Rabin’s tan card was verified, or how the State’s Attor-

ney’s Office came to be involved in the verification pro-

cess.) Rabin was then released. (Rabin’s brief asserts

that the tan card was verified before his 30-minute trip

to the police station, but none of the brief’s citations

supports such a fact or inference.) Construing the facts

in the light most favorable to Rabin, he was detained for

a total of about an hour-and-a-half, and it is undisputed

that Rabin acted in a cooperative manner during the

entire incident. Afterwards, Rabin allegedly suffered

swelling and bruising to his wrists, muscle spasms in his

neck, and needed to see a hand surgeon. He also had

surgery on his neck to deal with the pains related to

these injuries.

Rabin sued Flynn, Knepper, Quinlan, and other defen-

dants including Cook County pursuant to 42 U.S.C. § 1983,

for unlawful arrest and excessive force in violation of

the Fourth Amendment. The defendants filed a motion

for summary judgment, which the district court denied

in relevant part, finding that Flynn, Knepper, and Quinlan

were not entitled to qualified immunity. This appeal

concerns solely the district court’s denial of qualified

immunity for the three individual officers.

II. ANALYSIS

“The doctrine of qualified immunity protects govern-

ment officials from liability for civil damages when their

conduct does not violate clearly established statutory

6 No. 11-3904

or constitutional rights of which a reasonable person

would have known.” Humphries v. Milwaukee Cnty., 702

F.3d 1003, 1006 (7th Cir. 2012) (citations and quotation

marks omitted). To be clearly established at the time of

the challenged conduct, the right’s contours must be

“sufficiently clear that every reasonable official would

have understood that what he is doing violates that

right,” and “existing precedent must have placed the

statutory or constitutional question beyond debate.” Id.

(citations and internal quotation marks omitted). This

standard “protects the balance between vindication of

constitutional rights and government officials’ effective

performance of their duties by ensuring that officials can

reasonably . . . anticipate when their conduct may give rise

to liability for damages.” Reichle v. Howards, 132 S. Ct.

2088, 2093 (2012) (internal quotation marks and citation

omitted). “[A] court may grant qualified immunity on

the ground that a purported right was not ‘clearly estab-

lished’ by prior case law without first resolving

whether the purported right exists.” Humphries, 702 F.3d

at 1006 (citing Pearson v. Callahan, 555 U.S. 223, 236

(2009)). The plaintiff carries the burden of defeating the

qualified immunity defense, and we review the district

court’s grant of summary judgment on the basis of quali-

fied immunity de novo. Id. Where, as here, the denial

of qualified immunity was based on an issue of law,

we have jurisdiction to consider appeals from such

denials. Hernandez v. Cook Cnty. Sheriff’s Office, 634 F.3d

906, 912 (7th Cir. 2011).

No. 11-3904 7

A. The Officers Are Entitled to Qualified Immunity

On Rabin’s Wrongful Arrest Claim

Generally speaking, the Fourth Amendment permits

officers to perform an investigatory stop if they have a

reasonable and articulable suspicion of wrongdoing.

Jewett v. Anders, 521 F.3d 818, 823 (7th Cir. 2008). In evalu-

ating the reasonableness of an investigatory stop, we

examine whether the “ ‘officer’s action was justified at

its inception’ ” and “ ‘whether it was reasonably related in

scope to the circumstances which justified the interfer-

ence in the first place.’ ” Id. (quoting Terry v. Ohio, 392

U.S. 1, 20 (1968)). When an officer’s use of force during

such a Terry stop becomes so disproportionate to the

purpose of such a stop in light of the surrounding cir-

cumstances—and the purpose may include ensuring

the safety of the officers or others—then the encounter

becomes a formal arrest (which must then be justified

by probable cause). Id. at 824-25; United States v.

Adamson, 441 F.3d 513, 520 (7th Cir. 2006). “There is no

bright-line rule as to how long an investigative deten-

tion may last; instead we look to whether the police

diligently pursued a means of investigating that was

likely to confirm or dispel quickly their suspicions.” Id.

at 521.2

2

The parties frame the dispute as being about whether the

officers’ initial investigatory stop ever became a formal arrest,

but the core of the dispute is really over whether Rabin’s

presentation of his tan card should have been enough to

assure the officers that Rabin was acting lawfully. If it was,

(continued...)

8 No. 11-3904

Rabin acknowledges that Flynn’s initial investigatory

stop of Rabin was “justified at its inception” because

Rabin was visibly carrying a weapon, but argues that his

detention became unlawful as soon as he presented his

tan card, because any initial suspicion of wrongdoing or

danger should have been immediately dispelled. He

argues that the officers should have known that the

relevant statute clearly authorizes tan card holders to

carry concealed firearms in public. The defendants

respond that officers cannot be expected to know every

single provision of the law, including obscure exemp-

tions to the unlawful public carrying statute that covers

private detectives, nor should they be expected to antici-

pate affirmative defenses (they assert that the tan card

is like an affirmative defense) that might excuse sus-

pected misbehavior.

We agree with Rabin that a police officer’s suspicion

of wrongdoing that is premised on a mistake of law

cannot justify a Terry stop. We held in United States v.

McDonald, 453 F.3d 958 (7th Cir. 2006) that a “police

officer’s mistake of law cannot support probable cause to

conduct a stop,” id. at 961, however understandable that

mistake of law might be, and we later applied that rule to

(...continued)

then the officers lacked both reasonable suspicion and

probable cause to continue detaining Rabin, whether or not

Rabin’s detention is considered a Terry stop or a formal

arrest. If not, then reasonable suspicion along with safety con-

siderations may have been enough to justify a Terry deten-

tion while the license was being verified.

No. 11-3904 9

the Terry stop context. See, e.g., United States v. Tyler,

512 F.3d 405, 411 (7th Cir. 2008). This principle, however,

does not help Rabin because it only makes sense in situa-

tions where a reasonable officer would know all the

facts that he or she needs to determine whether the sus-

pected activity is unlawful. For instance, in Pritchard

v. Hamilton Township Bd. of Trustees, 424 Fed. Appx. 492,

506 (6th Cir. May 25, 2011), a case relied upon by both

Rabin and the district court, the officers arrested an

underage individual for consuming alcohol, but knew

full well that he was drinking alcohol with his father. The

Sixth Circuit found that the officers’ ignorance of the

law—that Ohio law allowed underage drinking under

the supervision of a parent—was no excuse for their

arrest given the facts that they knew. See id. at 504-05.

If, however, a reasonable officer would not have known

that the supervising adult was actually his parent, it

may not have been unreasonable to temporarily detain

the teenager while reasonable steps were taken to

promptly verify the adult’s parental status.

In this case, even if the officers should have known

what a tan card was, the officers still did not know (or

have reason to know) all the relevant facts to determine

whether Rabin could lawfully carry a gun in public 3 —

specifically, whether Rabin’s tan card was legitimate.

Under these circumstances, it would not be clearly unrea-

sonable for an officer to believe that releasing an indi-

3

The relevant events took place before Moore v. Madigan, 702

F.3d 933 (7th Cir. 2012) was decided.

10 No. 11-3904

vidual that may be unauthorized to carry a deadly weapon

would present an unacceptable risk of danger to them-

selves or the public. See Jewett, 521 F.3d at 824 (“In evalu-

ating whether the force that an officer used to

effectuate the investigatory stop was so disproportionate

to the purpose of such a stop as to convert the

encounter into a full arrest, we consider whether ‘the

surrounding circumstances g[a]ve rise to a justifiable

fear of personal safety’ on the part of the officer . . . .”

(citation omitted)); United States v. Stewart, 388 F.3d 1079,

1084-85 (7th Cir. 2004) (investigatory stop can be

justified where the suspect is “potentially dangerous”); see

also Schubert v. City of Springfield, 589 F.3d 496, 503 (1st

Cir. 2009) (“Just as an officer is justified in attempting

to confirm the validity of a driver’s license, such a

routine check is also valid and prudent regarding a

gun license.”). And though we are troubled by the use

of handcuffs in the context of a Terry stop even after

Rabin’s gun (the primary source of danger) had been

confiscated, an officer could have reasonably believed

under clearly established law at that time that handcuffs

may be used during a Terry stop when dangerous

weapons are generally involved. See, e.g., Stewart, 388

F.3d at 1085. But see Ramos v. City of Chicago, ___ F.3d ___,

2013 WL 2264346, at *4 (7th Cir. May 24, 2013) (“The

proliferation of cases in this court in which ‘Terry’ stops

involve handcuffs and ever-increasing wait times in

police vehicles is disturbing, and we would caution law

enforcement officers that the acceptability of handcuffs

in some cases does not signal that the restraint is not a

significant consideration in determining the nature of

No. 11-3904 11

the stop.”). Though Rabin’s brief suggests that the

officers should have simply let him go as soon as he

presented his tan card, he fails to point to any case

clearly establishing that officers are required to

take such documents at face value, especially when the

authorization to carry a fully loaded handgun is at

stake. In other words, Rabin does not show that the

individual officers failed to “diligently pursue[] a means

of investigating that was likely to confirm or dispel

quickly their suspicions” that Rabin was not authorized

to carry a gun. Adamson, 441 F.3d at 521.

At oral argument, Rabin’s counsel acknowledged

that officers may reasonably attempt to verify the legiti-

macy of a gun license before releasing a license-holder.

But Rabin asserts that the officers could have instantly

verified the tan card. He says that there is a “publicly

accessible database through which the [tan] card can be

verified within seconds” whose web address “appears

on the face of the [tan] card itself,” and that “Plaintiff

even told the officers to look at the card for the verifying

information, but they refused to do so.” However,

neither of these factual assertions (made at oral argument

and in his brief) are supported by any citations to the

record. Perhaps for good reason, because the photocopy

of the front and back of Rabin’s tan card found in the

record did not have any web address on it at all. See Dist.

Ct. Dkt. Nos. 67-3 at 69-70; 64-1 at 17.4 To the extent

4

According to that part of the record, Rabin’s Private Investiga-

tor License did include a website, but nothing on that card

(continued...)

12 No. 11-3904

some other part of the record indicates otherwise, it is

counsel’s responsibility to point it out. See Gross v. Town

of Cicero, 619 F.3d 697, 702 (7th Cir. 2010) (“As we have

repeated time and again, ‘Judges are not like pigs,

hunting for truffles buried in [the record].’ ” (citation

omitted)). And because the web address was not on

Rabin’s tan card, his assertion that he told the officers to

“look at the card” for the verifying information is irrele-

vant even if it were true.

We do not intend to suggest that taking one-and-a-

half hours to simply verify a gun license is reasonable

under these circumstances. Cf. Illinois v. Caballes, 543

U.S. 405, 407 (2005) (“A seizure that is justified solely by

the interest in issuing a warning ticket to the driver can

become unlawful if it is prolonged beyond the time

reasonably required to complete that mission.”); Arizona

v. United States, 132 S. Ct. 2492, 2509-10 (2012) (dis-

cussing whether state law requiring verification of immi-

gration status before release would result in unconstitu-

tional prolonged detention). But there is no evidence

that the individual officers (or their ignorance of the law)

were responsible for the prolonged verification process.

When Flynn was presented with the tan card, he did not

sit there scratching his head, but promptly turned to

other channels in an attempt to verify it. Perhaps the

police department or other relevant government agency

(...continued)

suggested that the tan card could be verified at the website

indicated in the brief.

No. 11-3904 13

should have had a system in place that could more effi-

ciently verify tan cards. But Rabin does not point to

any cases clearly establishing that individual officers are

personally responsible for curing such systemic failures,

which is hard to imagine given that such failures are

likely outside their control. Cf. Thomas v. Cook Cnty.

Sheriff’s Dept., 604 F.3d 293, 304 (7th Cir. 2009) (“If, for

instance, the officer had pled an affirmative defense

such as good faith, then the jury might have found that

the plaintiff’s constitutional rights were indeed

violated, but that the officer could not be held liable. In

that case, one can still argue that the City’s policies

caused the harm, even if the officer was not individually

culpable.”); Woodward v. Correctional Med. Servs. of Ill., Inc.,

368 F.3d 917, 929 (7th Cir. 2004) (employee’s “lack of

training and carelessness” relevant to establishing

liability of employer, even if employee was not found

liable). Rabin correctly notes that under the roughly

analogous circumstances of Schubert, decided after the

events here, the officer let the plaintiff go after a few

minutes as soon as he realized that verifying the gun

license “could take a significant amount of time,” Schubert,

589 F.3d at 500, since “Massachusetts did not have a

simple way for police officers to conduct such a check.”

Id. at 503. But even if this decision had been issued as of

the time of Rabin’s detention, it does not clearly say

that an officer’s failure to let someone go after a few

minutes under similar circumstances is a constitu-

tional violation. See also Estate of Escobedo v. Bender,

600 F.3d 770, 781 (7th Cir. 2010) (discussing limited role

of non-controlling precedent in qualified immunity

analysis).

14 No. 11-3904

In sum, given the safety risks at stake, it was rea-

sonable under clearly established law for the officers to

temporarily detain Rabin pending the verification of his

gun carrying license, even if the officers had known

about the tan card exemption under the law. His pro-

longed detention was then caused by systemic failures

outside the individual officers’ control. So the officers

are entitled to qualified immunity on Rabin’s wrongful

arrest claim.

B. Officers Flynn and Quinlan Are Entitled to Qualified

Immunity On Rabin’s Excessive Force Claim

Rabin also asserts an excessive force claim against the

officers, alleging that his handcuffs were overly tight

and exacerbated his preexisting medical conditions.

When an officer stops or arrests an individual, some

degree of physical force may be used, but the Fourth

Amendment requires that the degree of force used be

reasonable. Stainback v. Dixon, 569 F.3d 767, 772 (7th

Cir. 2009). “In this respect, our cases indicate that an

officer may not knowingly use handcuffs in a way that

will inflict unnecessary pain or injury on an individual

who presents little or no risk of flight or threat of in-

jury.” Id. In Stainback, which was decided prior to

Rabin’s detention, we found that the arresting officers

did not use excessive force in that case, but we explained,

“[h]ad the Officers known of a preexisting injury or

medical condition that would have been aggravated

by handcuffing Mr. Stainback, or had Mr. Stainback

communicated to the Officers that he suffered from such

No. 11-3904 15

an infirmity, the Officers certainly would have been

obligated to consider that information, together with the

other relevant circumstances, in determining whether

it was appropriate to handcuff Mr. Stainback.” Id. at 773.

Here, Rabin proffers evidence that he directly told

Officer Knepper about his “bad neck” and “bad hand in

the past” and that the handcuffs were overly tight,5 and

it was undisputed that Rabin was cooperative the entire

time. Given that Rabin was already handcuffed, no rea-

sonable officer who was aware of Rabin’s medical condi-

tions would have believed that exacerbating Rabin’s

medical problems (i.e., by keeping the handcuffs as tight

as they were) was necessary to ensure safety, and that

doing so would be permissible under clearly established

law. Therefore, Knepper is not entitled to qualified im-

munity at this summary judgment stage, and he will

have an opportunity at trial to dispute Rabin’s story or

explain why he did not loosen the handcuffs. Officers

Flynn and Quinlan, however, are entitled to qualified

immunity because there is no evidence that Rabin specifi-

cally made them aware of his medical history, and his

other generalized complaints of pain are insufficient

to show excessive force. See Stainback, 569 F.3d at

773 (“These generalized complaints, without any elabora-

tion regarding a preexisting injury or other infirmity,

would not have placed a reasonable officer on notice

that Mr. Stainback would be injured by these actions.”).

5

Rabin’s brief asserts that he told Quinlan about the bad

neck and bad hand injury, but the record citation indicates

that he actually told Knepper about it.

16 No. 11-3904

III. CONCLUSION

For the above-stated reasons, we R EVERSE the district

court’s denial of the defendants’ motion for summary

judgment to the extent that it sought qualified immunity

for Flynn, Knepper, and Quinlan for the wrongful arrest

claim and for Flynn and Quinlan for the excessive

force claim. We A FFIRM the district court’s denial of the

motion for qualified immunity for Knepper for the ex-

cessive force claim. And we R EMAND this case for pro-

ceedings consistent with this opinion.

R OVNER, Circuit Judge, concurring. Given this circuit’s

seemingly broad tolerance for the use of physical

restraints during investigatory detentions, I agree with

my colleagues that it would not have been clear to the

defendants that handcuffing Rabin and placing him in

the back of a squad car constituted an arrest that

required probable cause to believe he had committed a

crime. Consequently, the defendants are entitled to quali-

fied immunity on the wrongful arrest claim. I write sepa-

rately to explain why, in my view, the restraints placed on

Rabin were not justified by the circumstances of this

investigatory detention and transformed the deputies’

No. 11-3904 17

encounter with Rabin from a Terry stop into a wrongful

arrest. As a result of our decision in Moore v. Madigan, 702

F.3d 933 (7th Cir. 2012), reh’g en banc denied, 708 F.3d

901 (7th Cir. 2013), the carrying of firearms in public by

private citizens may soon become much more common

than it heretofore has been in Illinois, and if so there are

likely to be many more investigatory stops like this one

to ascertain an individual’s authority to carry a firearm.

Law enforcement agents must understand and respect

the limits on such Terry stops, and we must be clear

on what those limits are.

The Supreme Court’s decision in Terry v. Ohio recog-

nized a “narrowly drawn” exception to the traditional

rule that seizures of the person must be supported by

probable cause to believe the individual has committed

a crime. 392 U.S. 1, 27, 88 S. Ct. 1868, 1883 (1968). See

Florida v. Royer, 460 U.S. 491, 498-99, 103 S. Ct. 1319, 1324-25

(1983); Dunaway v. New York, 442 U.S. 200, 208-210, 99 S. Ct.

2248, 2254-55 (1979); United States v. Longmire, 761 F.2d 411,

417 (7th Cir. 1985). A Terry stop is meant to be a minimal

detention, lasting only so long, and intruding on the

stopped individual’s liberty only so much, as is necessary

for an officer to either confirm or dispel a reasonable

suspicion that the stopped individual “has been, is, or

is about to be engaged in criminal activity.” United States

v. Bullock, 632 F.3d 1004, 1014-15 (7th Cir. 2011) (quoting

United States v. Vega, 72 F.3d 507, 515 (7th Cir. 1995)); see

also United States v. Brignoni-Ponce, 422 U.S. 873, 881-82, 95

S. Ct. 2574, 2580 (1975); Adams v. Williams, 407 U.S. 143,

145-46, 92 S. Ct. 1921, 1923 (1972). It is because an in-

vestigatory stop is meant to be brief and minimally intru-

18 No. 11-3904

sive that the Supreme Court authorized such a deten-

tion on a showing of reasonable suspicion rather than

probable cause. See United States v. Place, 462 U.S. 696, 703,

103 S. Ct. 2637, 2642 (1983); Dunaway, 442 U.S. at 210-11,

99 S. Ct. at 2255-56. The reasonableness, and hence

the lawfulness, of the stop therefore depend in part on

the degree of restraint imposed on the individual.

Bullock, 632 F.3d at 1014-15. “Police restraint may

become so intrusive that, while not technically an arrest,

it becomes tantamount to an arrest requiring probable

cause.” Id. at 1016 (citing United States v. Tilmon, 19 F.3d

1221, 1224 (7th Cir. 1994)) (internal quotation marks

omitted).

“Handcuffs are generally recognized as a hallmark of a

formal arrest.” United States v. Newton, 369 F.3d 659, 676

(2d Cir. 2004) (coll. cases). Certainly this is true as a

matter of appearance: because handcuffing is a typical

step in effectuating an arrest, people see someone in

handcuffs and reflexively think, “That person is going

to jail.” And no one in handcuffs thinks, “I am free to

leave.” More to the point, he is not free to leave. Short

of locking someone behind bars, there is no more

concrete and effective way to limit his movement and

thereby deprive him of his physical freedom. Once in

cuffs, a person’s ability to terminate the encounter and

continue on his way depends not only on cooperating

with the officer and dispelling his suspicions, but on the

officer’s willingness to remove the handcuffs and

restore his liberty. All of this is doubly true when the

handcuffed individual is placed in the back of a police

No. 11-3904 19

car. 1 See United States v. Smith, 3 F.3d 1088, 1097 (7th

Cir. 1993) (Once the defendant was patted down,

handcuffed, and told to sit in a specific place by the side

of the road, he “was not free to go anywhere. His move-

ment was curtailed as if he were handcuffed to a chair

in a detective’s office or placed in a holding pen in a

station house or put behind bars.”); United States v.

Brown, 233 F. App’x 564, 567 (7th Cir. 2007) (non-

precedential decision) (“It is obvious that Brown was

seized; his movements were restrained when he sat

handcuffed and locked in the squad car and he clearly

was not free to leave. Moreover, the officers had initially

acquired physical control over him at the time they

tackled him, sprayed him with pepper spray, and cuffed

1

My focus in this concurrence will be on the use of hand-

cuffs. Rabin, of course, was not only handcuffed but placed in

the back of a caged squad car. Needless to say, placing

someone in the back of a police car against his will is itself

a restraint on his freedom. Much of what I have to say about

the decision to place Rabin in handcuffs will therefore apply

to the additional decision to secure him in the squad car.

There may well be situations in which having someone sit in

a police car will be justified by something other than a need

to restrain him: to protect him from others, to shelter him from

the weather, or to proceed with the Terry stop in a more conve-

nient setting, where the officer questioning the person has

access to a computer terminal, for example. No such justifica-

tion is evident from the facts in this case; it appears that

Rabin was placed in the car solely as a means of restraining

him. That additional restraint only compounded the intrusive-

ness of the encounter.

20 No. 11-3904

him. Obviously, any reasonable person in Brown’s posi-

tion at that time in the arrest scenario would have con-

sidered himself or herself restrained, beyond the

limited Terry-like stop, and under ‘arrest.’ ”).

Nonetheless, beginning with our decision in United

States v. Glenna, 878 F.2d 967 (7th Cir. 1989), we have

recognized a very limited set of circumstances in which

police may place an individual in handcuffs without

thereby converting a Terry stop into a de facto arrest. Our

holding in Glenna was founded on evidence that gave

police officers reason to be concerned for their safety

as they confronted the defendant and attempted to de-

termine whether he was engaged in a crime. The

police were observing Glenna based on a Teletype

alert indicating that he was involved in a recent drug

deal, that he had $100,000 in cash with him, that he was

armed, and that he also had some type of explosive

device. An officer stopped Glenna when he pulled his

van into a gas station, an environment in which fire-

arms and explosives posed even more of a danger than

they otherwise would. When, early in the encounter,

the officer asked Glenna to produce his identification,

Glenna reached into his pocket and the officer observed

a bulge in the pocket which he correctly suspected might

be an ammunition clip. The officer immediately grabbed

Glenna’s hand and removed the loaded clip from the

pocket. At that point, the officer placed Glenna in hand-

cuffs before frisking him. The patdown revealed that

Glenna also had a small, explosive “cherry bomb” in a

pants pocket. In view of the Teletype indicating that

Glenna was potentially armed and dangerous, coupled

No. 11-3904 21

with the initial discovery of a loaded clip of ammunition

on his person, we concluded that it was reasonable to

believe that Glenna posed a risk to the safety of the officer

who initiated the stop and the others who soon arrived

on the scene. That risk entitled officers not only to hand-

cuff Glenna while he was patted down (whereupon

the “cherry bomb” was discovered) but to keep him in

handcuffs while the officers attempted to confirm or

dispel the suspicions of criminal activity raised by the

Teletype (which efforts ultimately led to the discovery

of a pipe bomb in the van Glenna was driving):

[W]e are unwilling to hold that under Terry,

the placing of a suspect in handcuffs without

probable cause to arrest is always unlawful. If, in

a rare case, “common sense and ordinary human

experience” convince us that an officer believed

reasonably that an investigative stop could be

effectuated safely only in this manner, see [United

States v.] Sharpe, 470 U.S. [675] at 685, 105 S. Ct.

[1568] at 1574 [(1985)], “we will not substitute

our judgment for that of the officers as to the

best methods to investigate.” See [United States v.]

Boden, 854 F.2d [983] at 993[(7th Cir. 1988)].

878 F.2d at 972-73 (emphasis in original).

Subsequent cases have likewise sustained the use of

handcuffs during Terry stops when the circumstances

suggested either that an individual stopped for ques-

tioning might have a weapon or that he might be

involved in criminal activity often associated with vio-

lence. See, e.g., United States v. Smith, 697 F.3d 625, 632 (7th

22 No. 11-3904

Cir. 2012) (suspected bank robber left alone with

single agent while other agents chased his fleeing ac-

complices); United States v. Hopewell, 498 F. App’x 609,

611 (7th Cir. 2012) (non-precedential decision) (officers

had tip defendant might be concealing gun); Bullock, 632

F.3d at 1016 (officers were searching for drugs, and

drugs are associated with dangerous and violent

behavior and thus warrant extra caution); United States

v. Snowden, 250 F. App’x 175, 181 (7th Cir. 2007) (non-

precedential decision) (agents had reason to believe

defendant was about to engage in substantial drug trans-

action); United States v. Shoals, 478 F.3d 850, 853 (7th

Cir. 2007) (per curiam) (“inherent danger” posed by

defendant, who matched late-hour 911 report of indi-

vidual engaging in gunfire, was wearing coat indoors,

and had attempted to hide from police); United States v.

Stewart, 388 F.3d 1079, 1085 (7th Cir. 2004) (defendant

matched description of armed perpetrator of recent

bank robbery and behaved suspiciously); United States

v. Hendricks, 319 F.3d 993, 1004 (7th Cir. 2003) (defendant

took abnormally long time to respond to request for

identification and vehicle registration, he fumbled with

something officer could not see, and ammunition

magazine was found on his person during patdown);

United States v. James, 40 F.3d 850, 875 (7th Cir. 1994)

(police had received tip of suspicious activity in hotel

room, a loud argument had been heard there, and gun

and cash were discovered in room), cert. granted & judg-

ment vacated on other grounds, 516 U.S. 1022, 116 S. Ct.

664 (1995).

A second line of cases has relied on the risk of flight

to justify the use of handcuffs while the detained indi-

No. 11-3904 23

vidual is being questioned. See, e.g., Bullock, 632 F.3d

at 1016 (officers had reason to believe suspected cocaine

dealer presented flight risk in addition to safety risk,

given his knowledge that police had warrant to search

residence where he made his cocaine sales); United States

v. Carlisle, 614 F.3d 750, 756 (7th Cir. 2010) (defendant

attempted to escape house with backpack during drug

sweep); United States v. Wilson, 2 F.3d 226, 231-32 (7th

Cir. 1993) (defendant had attempted to flee); Tom v.

Voida, 963 F.2d 952, 958-59 (7th Cir. 1992) (defendant

had disobeyed multiple orders to stop).

These decisions are consistent with our observation

in Glenna that it will be the rare case in which it will be

necessary, and thus consistent with the purpose and

scope of a Terry stop, to temporarily immobilize a

person with handcuffs while a police officer attempts

to confirm or dispel a reasonable suspicion of criminal

activity. There is an obvious dissonance between the use

of handcuffs, which signals an arrest, and a Terry stop,

which is meant to be a modest seizure short of and

distinct from an arrest. Authorizing the use of hand-

cuffs when the purpose of the Terry stop cannot be accom-

plished without them—when the person being ques-

tioned would otherwise flee, or when he would otherwise

pose a danger to the officers doing the questioning—

reconciles the conflict in a logical way. See Glenna, 878

F.2d at 974-75 (Flaum, J., dissenting). Those cases should

be few and far between, and the facts justifying the ap-

plication of an arrest-like restraint should be con-

crete and compelling. See United States v. Chaidez, 919

F.2d 1193, 1197-98 (7th Cir. 1990) (the more intrusive the

24 No. 11-3904

seizure, the more justification for the seizure there

must be).

Yet, despite the limits evident in the foregoing deci-

sions, we occasionally make statements suggesting that

the use of handcuffs during Terry stops is something less

than a rare occurrence requiring particularized factual

justification. We sometimes remark, for example, that the

use of handcuffs by itself does not necessarily transform

an investigatory stop into a de facto arrest, without

adding that handcuffs will be justified only in the

unusual case—almost as if we are indulging a rebuttable

presumption that handcuffs are consistent with a

standard Terry stop. See, e.g., Carlisle, 614 F.3d at 756;

Shoals, 478 F.3d at 853; United States v. Robinson, 30 F.3d

774, 782 n.3 (7th Cir. 1994); Smith, 3 F.3d at 1094-95. On

other occasions we have observed that “[f]or better or

for worse, the trend [of cases granting greater latitude

to employ force during a Terry stop] has led to the permit-

ting of the use of handcuffs, the placing of suspects

in police cruisers, the drawing of weapons and other

measures of force more traditionally associated with

arrest than with investigatory detention,” as if to suggest

that we will, inevitably, continue to broaden the range

of circumstances in which forcible restraint may be

used during Terry stops. Tilmon, 19 F.3d at 1224-25;

Vega, 72 F.3d at 515; United States v. Askew, 403 F.3d 496,

507 (7th Cir. 2005); see also Stewart, 388 F.3d at 1084 (“The

permissible scope of a Terry stop has expanded in

recent years to include the use of handcuffs and

temporary detentions in squad cars.”). When divorced

from their context, statements along these lines could be

No. 11-3904 25

read to imply that we no longer regard the use of hand-

cuffs during Terry stops as the exception but rather

the rule.

It would be unfortunate (and mistaken) for police

departments and their attorneys to take that message

from our case law. In fact, we have always demanded

that there be some reason for police officers to believe

that handcuffing a stopped individual is necessary to

effectuate the legitimate purpose of an investigatory

detention, be it to prevent an uncooperative person

from fleeing or to preserve officer safety. Even the one

case in this line that represents a departure from its

predecessors ultimately makes this same point. In

United States v. Yang, 286 F.3d 940, 950 (7th Cir. 2002), we

sustained the use of handcuffs while a defendant

suspected of attempting to smuggle opium into the

country was transported from a domestic airport

terminal to the international terminal for questioning.

We candidly acknowledged that the circumstances

were different from those in prior cases, in that the de-

fendant did not pose a threat to the officers questioning

him nor did he pose a flight risk. Id. at 950. Yet,

logistically it was necessary for investigative purposes

to transport the defendant by van to the international

terminal, where drug testing equipment was available.

And the ride from terminal to terminal took the

defendant across the airport tarmac, a highly-restricted

area in which the presence of any unauthorized, unre-

strained individual posed a safety risk. Id. The gen-

eralized but heightened need for safety in an especially

sensitive environment thus supported the use of hand-

26 No. 11-3904

cuffs notwithstanding the absence of any indication

that this defendant in particular posed a threat. In that

regard, circumstances warranting the temporary use of

handcuffs in Yang were “quite unique.” Id. Thus Yang,

in distinguishing our other cases, ultimately confirms

that the range of circumstances in which handcuffs may

be used is narrow. Even if those circumstances have

turned out to be not quite as rare as we envisioned in

Glenna, they are nonetheless limited and definite.

However, given our failure as a court to make explicit

the limits which I believe are implicit in the facts and

rationale of our decisions, along with our occasionally

uncabined language regarding the use of handcuffs

during Terry stops, I must join my colleagues in holding

that the defendants here are entitled to qualified im-

munity. The defendants are entitled to such immu-

nity unless the right they are accused of violating was

clearly established at the time of their actions, e.g.,

Hernandez v. Sheahan, 711 F.3d 816, 817 (7th Cir. 2013); and

whether that right was clearly established must be an-

swered with reference to the specific facts of the case

rather than at a high level of generality, e.g., Surita v.

Hyde, 665 F.3d 860, 868 (7th Cir. 2011); Borello v. Allison,

446 F.3d 742, 750 (7th Cir. 2006); Carlson v. Gorecki, 374

F.3d 461, 466 (7th Cir. 2004). Thus, the question is not

whether it was clear, in December 2009, that Rabin had

a Fourth Amendment right not to be arrested absent

probable cause to believe he had committed a crime;

that much is beyond dispute. The question, rather, is

whether it would have been clear to a reasonable police

officer that handcuffing someone in the course of a Terry

No. 11-3904 27

stop initiated to determine that person’s authority to

carry a firearm in public—when the firearm has al-

ready been taken from him—transformed the stop into a

de facto arrest requiring probable cause. I agree that the

answer to that question is “no.” Determining whether

and when an investigatory detention becomes an arrest is

a highly fact-dependent inquiry. E.g., Stewart, 388 F.3d at

1085. We have described the line between the two as

“dim and wavering.” United States v. Lechuga, 925 F.2d

1035, 1039-40 (7th Cir. 1991). And I can identify no

prior case making clear that the use of handcuffs in

the scenario presented here would take an investigatory

detention across that difficult-to-discern boundary. In

view of our statements about the “trend” toward

allowing the use of handcuffs and other forcible

restraints during Terry stops, and our continuing reaf-

firmation that the use of handcuffs will not necessarily

transform such a stop into an arrest, I believe that a

reasonable officer could have thought the use of

handcuffs was consistent with the permissible purpose

and scope of the stop, particularly one involving a fire-

arm. Officer safety has been a recurring theme in our cases

sustaining the use of handcuffs during investigatory

detentions. And although Rabin claimed a legal right to

carry his firearm—which he had readily surrendered to

Flynn at the beginning of the encounter—an officer

might have reasonably thought that he was free to hand-

cuff any individual being investigated for the possible

illegal possession of a weapon in the name of safety,

without transforming the investigatory stop into an arrest.

That said, I am compelled to point out that none of the

concerns we have previously cited to authorize the use

28 No. 11-3904

of handcuffs during a Terry stop was present here. The

sole basis for the detention of Rabin was his carrying of

a firearm. There was no report or ground on which to

suspect that he had misused the weapon or committed

any crime apart from the (potentially) illegal possession

of a firearm in public; the police stopped Rabin on no

basis other than the fact that he had a gun. He exhibited

no suspicious, evasive, or aggressive behavior. He was

calm and cooperative, responded appropriately to

Flynn’s inquiries, and presented to Flynn evidence of

his identity, his status as a licensed private investigator,

and his authority to carry a firearm. Knepper would

later confirm that Rabin had served a court order on a

tenant of the building, just as he had represented to

Flynn. Whatever risk to officer safety Rabin’s possession

of the weapon might have posed at the outset of the

encounter was eliminated when Flynn took possession

of the weapon. Nothing suspicious was discovered

during the subsequent frisk of Rabin’s person. Apart

from the possibility that Rabin’s possession of the weapon

in public might have been illegal (notwithstanding his

Firearm Control Card or “Tan card”), there was no basis

to believe that he posed an independent threat to the

officers. Rabin never made any attempt to flee. In short,

there was no need to handcuff Rabin and then secure

him in a police car in order to effectuate the purpose of

the Terry stop; the notion that physical restraint was

justified became altogether spurious once other deputies

had joined Flynn at the scene. Rabin’s authority to carry

the firearm could have been ascertained without

handcuffing him and locking him away in a caged

squad car.

No. 11-3904 29

To conclude otherwise would be to suggest that

carrying a firearm in public will routinely justify not

only a Terry stop but the highly intrusive, physical

restraint on liberty that handcuffing represents. I can,

of course, appreciate the need for police caution in ap-

proaching someone they know or suspect is armed. But

if the carrying of concealed firearms in Illinois is on the

verge of being legalized broadly, as our decision in

Moore may portend, then the possession of a gun in

public cannot by itself be reason to suspect that a

stopped person poses a danger that justifies an arrest-

like restraint. Once such an individual claims the right

to lawfully carry the firearm, presents documentation

to that effect, and has surrendered the firearm to the

officer without incident while his authority is being

checked, I can see no need for physical restraint absent

some additional information suggesting he or she poses

a potential danger to the officer or is about to flee.

Short of jailing a person, I can imagine no greater intrus-

ion on his freedom than placing him in manacles and

installing him in the back of a caged police car. See Terry,

392 U.S. at 8-9, 88 S. Ct. at 1873 (“ ‘No right is held more

sacred, or is more carefully guarded, by the common law,

than the right of every individual to the possession and

control of his own person, free from all restraint or the

interference of others, unless by clear and unquestionable

authority of law.’ ”) (quoting Union Pac. R.R. Co. v. Botsford,

141 U.S. 250, 251, 11 S. Ct. 1000, 1001 (1891)); Arizona v.

Evans, 514 U.S. 1, 23, 115 S. Ct. 1185, 1197 (1995) (Stevens,

J., dissenting) (citing the mistaken arrest, handcuffing,

and search of an individual in a public street as an

“offense to the dignity of the citizen”); Love v. City of

30 No. 11-3904

Port Clinton, 524 N.E.2d 166, 167 (Ohio 1988) (“The acts

of subduing and handcuffing are undoubtedly offensive

to a reasonable sense of personal dignity.”) (internal

quotation marks omitted). Allowing such restraints to

be imposed absent some indicia of danger would be a

heavy tax on the right to carry a firearm; a right that

comes at such an expense arguably is no right at all.

A final word about the length of the stop in this case.

Rabin was detained for 90 minutes, which was far too

long given the purpose of the stop. Cf. Place, 462 U.S. at

709-10, 103 S. Ct. at 2645-46 (90-minute detention of de-

fendant’s luggage was excessive under Terry: “we

have never approved a seizure of the person for the

prolonged 90-minute period involved here and do not

do so on the facts presented by this case”). The delay

in releasing Rabin was due to the fact none of the

three deputies knew what a Tan card was and no one

(including the dispatcher) knew how to verify

Rabin’s authorization to carry a firearm. This pervasive

ignorance suggests a failure on the part of their em-

ployer to train them adequately. I presume that this

case represents an aberration, and that if and when the

carrying of firearms by private citizens becomes more

common in Illinois, confirming an individual’s authority

to carry a firearm in public will become a routine and

quick task. (I also presume that Illinois will issue a more

reliable means of identifying those authorized to carry

weapons; the Tan card, which does not bear a photo-

graph of the bearer, is little more reliable and secure

from forgery than a library card.) Still, there will no

doubt be future instances in which there is some discrep-

ancy in the gun holder’s identification or there is some

No. 11-3904 31

system failure that makes it impossible for an officer to

promptly confirm an individual’s authorization to carry

a firearm. As my colleagues point out, Rabin’s counsel

conceded at oral argument that the defendants could

properly detain Rabin until such time as they confirmed

the legitimacy of his Tan card. That concession makes

it unnecessary for us to decide in this case whether

the deputies were obligated to release Rabin once it

became clear that they could not quickly ascertain

whether he was legally authorized to carry a gun. I would

just note, as my colleagues do, that authorities in this

situation always have the option of releasing the indi-

vidual and retaining his firearm while they investigate

his authority to carry the gun. See, e.g., Schubert v. City of

Springfield, 589 F.3d 496, 503 (1st Cir. 2009) (when, after

five minutes of checking, officer was unable to confirm

validity of detainee’s gun license due to lack of centralized

database, officer told detainee he was free to go and

could retrieve his gun and gun license from the police

department at a later time). Detaining an individual’s

firearm typically will not interfere with his freedom to

the extent that detaining a traveler’s luggage might, cf.

Place, 462 U.S. at 708-09, 103 S. Ct. at 2645, and would

be consistent with the Supreme Court’s admonition that

“the investigative methods employed should be the

least intrusive means reasonably available to verify or

dispel the officer’s suspicion in a short period of time.”

Royer, 460 U.S. at 500, 103 S. Ct. at 1325-26.

It is for these reasons that I concur in the court’s decision.

7-9-13