Jason Findlay v. Jon Lendermon

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-3881

JASON F INDLAY,

Plaintiff-Appellee,

v.

JONATHAN L ENDERMON,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Indiana, Hammond Division at Lafayette.

No. 4:10-CV-98—Theresa L. Springmann, Judge.

A RGUED M AY 22, 2013—D ECIDED JUNE 14, 2013

Before F LAUM, R OVNER, and SYKES, Circuit Judges.

F LAUM, Circuit Judge. In September 2009, Deputy

Sheriff Jonathan Lendermon found himself in the middle

of a long-running family squabble between Jason Findlay

and Findlay’s uncle, Clark Howey. Neighbors as well as

family, the two lived next door to each other. Howey

suspected Findlay of trespass and vandalism, giving rise

to the bickering that ensnared Deputy Lendermon.

When Findlay found a surveillance camera set up at

the property line, he called the Sheriff’s Office to file an

2 No. 12-3881

abandoned property report, and Lendermon responded

to the call. With video running, Findlay ultimately

made comments suggesting he had, in fact, trespassed,

and Lendermon decided to confiscate as evidence the

memory chip containing these statements. At some

point, the memory chip separated from the camera and

fell to the floor. Findlay says Lendermon tackled him

as he reached to pick up the chip. Lendermon says he

simply grabbed Findlay’s arm to prevent him from

picking up the chip before Lendermon could seize it. A

lawsuit followed, in which Findlay alleged the excessive

use of force. The district court denied Lendermon’s

motion for summary judgment on the excessive force

claim. We reverse. Because Findlay has not carried his

burden of showing the violation of a clearly established

right, Lendermon is entitled to qualified immunity.

I. Background

A. Factual Background

Findlay and Howey are neighbors, living on adjacent

lots. Howey owns his property. Findlay lives with his

87-year-old grandmother, Elizabeth, on his mother’s

land. On September 25, 2009, Findlay found a camcorder

near the property line and called the Sheriff’s Office to

file an abandoned property report. Lendermon responded

to the call.

On his way to Findlay’s, Lendermon spoke with

Aaron Lorton—a police officer with the City of Lafayette

and also Howey’s son-in-law—who admitted ownership

No. 12-3881 3

of the camcorder. When Lendermon arrived at the prop-

erty, he spoke first with Howey. Howey told the deputy

that he and Lorton had placed the camera because he

suspected Findlay of trespassing onto and vandalizing

his property.

Lendermon spoke with Findlay next, who recorded his

interactions with Lendermon on the camcorder (telling

Lendermon he had had some “bad experiences” with

the police in the past). Findlay showed Lendermon

where he had found the camera, explained his under-

standing of the property lines (he believed the

camera was placed on his mother’s property), and told

Lendermon that Howey had warned him against tres-

passing. The camcorder captured all of these state-

ments. After that conversation ended, Lendermon went

to his patrol car while Findlay returned to his house.

From his cruiser, Lendermon radioed the dispatch

officer who, after checking the Geographic Information

System website for Tippecanoe County, confirmed that

the camcorder sat on Howey’s property, not Findlay’s.

Lendermon and the dispatch officer realized the eviden-

tiary value of the video recording—in which Findlay

admits his uncle’s warnings about trespass and ex-

plains precisely from where he recovered the camera—

and agreed to seize the camcorder as evidence.

As a result, Lendermon returned to the house, where

Findlay invited him in. Upon entry, he joined Findlay and

Elizabeth at the kitchen table. Still recording, the cam-

corder sat at the center of the kitchen table. Lendermon

told Findlay he was confiscating the camcorder, but

4 No. 12-3881

Findlay pulled it away and took the memory chip

out. Ultimately, the chip ended up on the kitchen

floor underneath the washing machine. Lendermon says

Findlay threw the chip there; Findlay says he dropped it.

In any event, Findlay reached to pick up the chip. Here

again, the parties tell conflicting accounts of what hap-

pened. According to Findlay, Lendermon suddenly

leapt up, grabbed him by the shoulders, and tackled him

to the ground. Findlay’s chest hit the floor, and he

landed on a bottle of laundry detergent. Findlay re-

ported pain and, on the advice of his attorney, con-

sulted with a doctor a few days after the incident. The

doctor found no evidence of any injury. The grand-

mother corroborated this account in her deposition.

Unsurprisingly, Lendermon reports a different story,

saying he simply grabbed Findlay’s arm to prevent

him from reaching and/or destroying the memory chip.

Lendermon acknowledged in his deposition, though,

that Findlay did not do or say anything suggesting

intent to destroy the chip.

Lendermon ultimately recovered the chip, placed

Findlay in handcuffs, and arrested him for resisting law

enforcement and obstruction of justice. The prosecutor

dropped the charges.

B. Procedural Background

Findlay filed a three-count complaint under 42 U.S.C.

§ 1983 alleging claims of excessive force, false arrest, and

wrongful seizure. The parties cross-moved for summary

No. 12-3881 5

judgment with Findlay requesting judgment on the

false arrest and wrongful seizure claims. Lendermon

moved for summary judgment on all counts and raised

a qualified immunity defense.

Finding no issues of material fact on the wrongful

seizure claim and concluding that the plain view and

exigency exceptions justified seizing the memory chip

and video camera, the court granted Lendermon’s

motion for summary judgment. Also finding no issues of

material fact on the false arrest claim, the court found

Lendermon had probable cause to arrest Findlay for

resisting law enforcement, Ind. Code § 35-44.1-3-1(a),

obstruction of justice, Ind. Code § 35-44.1-2-2(a), refusal

to aid an officer, Ind. Code § 35-44.1-3-3, and trespass,

Ind. Code § 35-43-2-2(a). Thus, the court also granted

summary judgment for Lendermon on the false arrest

claim without considering whether Lendermon had

probable cause to arrest Findlay for conversion. Ind. Code

§ 35-43-4-3(a).1

The district court denied Lendermon summary judg-

ment on the excessive force claim, though, finding

a genuine dispute of material fact in the differing ac-

counts of the force Lendermon applied to Findlay when

Findlay reached for the fallen memory chip. Assuming

1

In this interlocutory appeal, we consider only the district

court’s denial of Lendermon’s qualified immunity defense.

Thus, at the current juncture, we express no opinion on the

district court’s entry of summary judgment for Lendermon on

the wrongful-seizure and false-arrest claims.

6 No. 12-3881

the truth of Findlay’s account and applying the

three-factor analysis from Graham v. Connor, 490 U.S.

386 (1989), the district court concluded that a rea-

sonable jury could find Lendermon used excessive force

in tackling Findlay. Finding a constitutional violation

that was clearly established at the time of the conduct,

the court denied Lendermon’s motion for summary

judgment raising the qualified immunity defense.

Lendermon appealed.

II. Discussion

Qualified immunity protects public servants from

liability for reasonable mistakes made while performing

their public duties. See Denius v. Dunlap, 209 F.3d 944,

950 (7th Cir. 2000). Defeating qualified immunity

requires (1) conduct violating the plaintiff’s constitu-

tional or statutory rights that is (2) clearly established at

the time of the violation such that a “reasonable official

would understand that what he is doing violates that

right.” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640

(1987)). Pearson v. Callahan, 555 U.S. 223, 242-43 (2009),

encouraged courts to begin with the substantive con-

stitutional violation, but we remain free to consider

first whether the right is clearly established if doing

so will conserve judicial resources. We find it economical

to do so here and thus consider only whether Findlay

has shown that the alleged constitutional violation—

tackling a suspect under the circumstances presented in

No. 12-3881 7

this case—was clearly established.2 In doing so, we

apply de novo review, Humphries v. Milwaukee Cnty.,

702 F.3d 1003, 1006 (7th Cir. 2012), and draw all factual

inferences in favor of the non-moving party, McGrath

v. Gillis, 44 F.3d 567, 569 (7th Cir. 1995).3

Even when a public official’s actions have violated a

plaintiff’s constitutional rights, the official can escape

liability if the right was not clearly established at the

time of the violation. Denius, 209 F.3d at 950. Importantly,

the plaintiff must show that the right is clearly estab-

lished such that “the contours of the right are suf-

ficiently clear that a reasonable official would under-

stand that what he is doing violates that right.” Id.

(internal punctuation omitted) (quoting Anderson, 483

U.S. at 640); e.g., Humphries, 702 F.3d at 1006. He

can carry this burden either by identifying a “closely

analogous case that established a right to be free from

the type of force the police officers used on him” or by

2

We express no opinion on whether Lendermon’s actions

(as alleged by Findlay) constitute excessive force under

Graham v. Connor. Likewise, we leave unaddressed Lendermon’s

argument that force motivated by a desire to preserve evi-

dence bears on Graham’s determination of reasonableness.

3

Findlay argues Lendermon has waived the qualified

immunity defense. Lendermon’s answer, however, asserted

“immun[ity] from suit as to the alleged actions.” Moreover, he

squarely raised qualified immunity in support of his motion

for summary judgment. That “supplie[s] adequate notice to

the plaintiffs” that qualified immunity is at issue. Hernandez

v. Cook Cnty. Sheriff’s Office, 634 F.3d 906, 913-14 (7th Cir. 2011).

8 No. 12-3881

showing “that the force was so plainly excessive that, as

an objective matter, the police officers would have been

on notice that they were violating the Fourth Amend-

ment.” Chelios v. Heavener, 520 F.3d 678, 691 (7th Cir.

2008) (quoting Clash v. Beatty, 77 F.3d 1045, 1048 (7th

Cir. 1996)). Findlay has not carried this burden.

In opposing Lendermon’s qualified immunity defense

before the district court, Findlay attempted to apply

the clearly established law requirement to the facts of

his case in only one sentence: “In the instant case, it is

clear that the conduct of Defendant Lenderman (and

Defendant Huber, in authorizing in advance the conduct

of Lendermon) violated the clearly established constitu-

tional rights of the Plaintiff.” That statement neither

identifies a closely analogous case nor adequately ex-

plains how Lendermon’s force was “so plainly exces-

sive” as to defeat a qualified immunity defense.

Findlay’s analysis of this issue on appeal is likewise

deficient. He first argues that the objective reason-

ableness standard “mirrors the objective reasonableness

test for qualified immunity, thus creating a single

analysis for both constitutionality and entitlement to

qualified immunity.” Saucier v. Katz, however, squarely

rejected this argument. 533 U.S. 194, 200-07 (2001).

As Saucier explained,

[o]fficers can have reasonable, but mistaken, beliefs

as to the facts establishing the existence of probable

cause or exigent circumstances, for example, and in

those situations courts will not hold that they have

violated the Constitution. Yet, even if a court were

No. 12-3881 9

to hold that the officer violated the Fourth Amend-

ment by conducting an unreasonable, warrantless

search, Anderson still operates to grant officers immu-

nity for reasonable mistakes as to the legality of

their actions. The same analysis is applicable in ex-

cessive force cases, where in addition to the defer-

ence officers receive on the underlying constitu-

tional claim, qualified immunity can apply in the

event the mistaken belief was reasonable.

Id. at 206. In short, “while the substantive constitutional

standard protects officers’ reasonable factual mistakes,

qualified immunity protects them from liability where

they reasonably misjudge the legal standard.” Catlin v.

City of Wheaton, 574 F.3d 361, 369 (7th Cir. 2009). The

substantive constitutional test, then, does not collapse

into the qualified immunity test as Findlay suggests.

Next, in an effort to identify a “closely analogous

case,” Findlay points only to Gray v. City of Hammond,

693 F. Supp. 2d 823 (N.D. Ind. 2010). To begin,

Lendermon’s altercation with Findlay occurred in 2009,

pre-dating Gray. Therefore, Gray itself could not have—at

the time of the violation—clearly established the rights

Findlay asserts. And neither does Gray identify a pre-

2009 case clearly establishing those rights. Instead, Gray

notes only that the “right to be free from unreasonable

seizure was a clearly established right.” Id. at 845. But

qualified immunity requires the plaintiff to produce a

case “clearly establish[ing] [the right] in a particularized

sense, rather than in an abstract or general sense.”

Abbott v. Sangamon Cnty., 705 F.3d 706, 731 (7th Cir. 2013).

10 No. 12-3881

That broad statement is not sufficiently particularized

to the facts Findlay alleges and does not satisfy

Findlay’s burden of showing a violation of clearly estab-

lished law.

Findlay offers nothing more to carry his burden of

showing a clearly established right. Because he has

neither identified a sufficiently analogous case nor ade-

quately explained how Lendermon’s actions were so

plainly excessive that any reasonable officer would

know it violated the constitution, he cannot defeat

Lendermon’s qualified immunity defense. Cf. Soriano v.

Town of Cicero, No. 10-3352, 2013 WL 1296780, at *2 (7th

Cir. Apr. 2, 2013) (non-precedential) (noting plain-

tiff’s burden to show clearly established right and

finding that burden unsatisfied where defendant had

not responded to qualified immunity defense in briefing).

In reaching this conclusion, we do not suggest that

no “plainly excessive” argument could ever be made

from the facts as Findlay presents them. But the burden

to make this showing rests squarely on Findlay. He

has not done so and therefore cannot prevail.

IV. Conclusion

Because Findlay has not identified any sufficiently

analogous case clearly establishing the constitutional

right he accuses Lendermon of violating, and because

Findlay offers no adequate explanation for how

Lendermon used force “so plainly excessive” that it

proved clearly established notwithstanding the absence

of such a case, we R EVERSE the district court’s denial

No. 12-3881 11

of Lendermon’s motion for summary judgment on quali-

fied immunity grounds.

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