Julian J. Miller v. Albert Gonzalez

In The

United States Court of Appeals

For the Seventh Circuit

_______________________

Nos. 11-2906 & 12-2950

JULIAN J. MILLER,

Plaintiff-Appellant,

v.

ALBERTO GONZALEZ and SHANE STANGE,

Defendants-Appellees.

_________________________

Appeals from the United States District Court

for the Eastern District of Wisconsin.

No. 09-C-1012 — Rudolph T. Randa, Judge.

__________________________

ARGUED OCTOBER 29, 2012 — DECIDED AUGUST 5, 2014

_________________________

Before WOOD, Chief Judge, CUDAHY and ROVNER, Circuit

Judges.

ROVNER, Circuit Judge. Julian Miller began the evening of

October 24, 2003 at his mother’s wedding reception, and

2 Nos. 11-2906 & 12-2950

ended it in the back of a police cruiser with a broken jaw.

Miller blamed two police officers from the Kenosha,

Wisconsin police department for intentionally breaking his

jaw and sued them under 42 U.S.C. § 1983 for violating his

civil rights by using excessive force in effectuating his arrest.

The district court granted the police officers’ motions for

summary judgment and Miller appeals.

I.

Before entering his mother’s 9:00 p.m. wedding

reception, Miller and a friend smoked marijuana. At the

reception, Miller drank three shots of vodka in an hour and a

half. When the reception ended at approximately 10:00 p.m.

or 10:30 p.m., Miller dropped off his girlfriend and then

headed to a local bar in Kenosha. Before he entered the bar,

he smoked some more marijuana and then topped off that

high with three more Heineken beers before leaving for

another bar at around 1:00 a.m. Apparently unready to go

home, Miller headed off to one more bar, where he drank a

few more beers and then bought a final Heineken for the

road before heading off to a gas station where he planned to

use the pay phone to call his girlfriend.

Just as Miller was driving to the gas station, the Kenosha

police department received a call about a stabbing that

occurred about two blocks away from the same gas station.

Kenosha Police Officer Albert Gonzalez searched the

surrounding neighborhood for the suspect while Officer

Shane Stange interviewed the witness to the stabbing. That

witness, who lived on the floor below where the stabbing

occurred, told Stange that at around 1:40 a.m. he heard a

knock at a side door that led to the upstairs apartment. After

Nos. 11-2906 & 12-2950 3

hearing noises, the witness went out to the front porch

where he saw someone wearing a dark hooded sweatshirt

run around the house and then head west on 44th Street. The

witness’s upstairs neighbor shouted from the front yard,

“Call the cops. I’ve been stabbed.” The victim told the

witness, who told Stange, that although the person who

stabbed him was wearing a ski mask, he believed it was his

ex-wife’s boyfriend.

The sergeant in charge informed Gonzalez that the

suspect fled west on 44th Street (the street on which the

home was located) for one block and then headed south on

21st Avenue. Gonzalez walked that route until he reached

the gas station one block west and one block south—at the

corner of 21st Avenue and 44th place. As Gonzalez

approached the gas station, he saw Miller’s red car idling in

a corner of the gas station. And as he got closer, he saw

Miller exit the car drinking a beer. In answer to Gonzalez’s

inquiry, Miller denied seeing anyone running in the area.

Gonzalez asked Miller his name to which Miller, knowing he

was on probation, was driving without a license, and had

been seen exiting his car with a beer, replied with the fake

name, “Julius Johnson.” When Gonzales asked Miller if he

was on probation, Miller admitted that he was indeed on

probation for burglary and disorderly conduct. Miller, who

was becoming increasingly fidgety and nervous over the

course of the exchange, placed his hands in his front pockets.

Gonzalez instructed Miller to take his hands out of his front

pockets and not to run. Miller switched his hands from his

front pockets to his back pockets, took a step backwards and

took off running with Gonzalez in pursuit.

4 Nos. 11-2906 & 12-2950

Serendipitously, Miller headed north on 21st Avenue and

then east on 44th Street, directly back toward the scene of

the stabbing. Gonzalez’s sergeant, who had been at the gas

station, radioed Stange, who was still at the scene of the

stabbing, that Gonzalez was pursuing a suspect and that

they were headed in his direction. Stange emerged from the

house in time to see Gonzalez chasing Miller east on 44th

Street straight toward him. As Stange came down from the

porch and identified himself as a police officer, Miller darted

to the left and jumped a chest high chain link fence into a

small yard.

As with his other choices that evening, this one was ill

conceived. The yard was only six to seven feet wide by eight

to ten feet deep. It was enclosed on the south and east sides

by the chest high chain link fence, on the west side by the

side of the garage, and on its north side by a tall wooden

fence. The yard was overgrown with tall weeds and had a

light shining into it from a nearby source. Once he jumped

the fence, Miller was trapped. The wood fence and garage

blocked the north and west of the yard respectively and

Gonzalez was approaching from the south. Stange jumped

the south fence after Miller and, with his gun drawn,

ordered Miller to the ground. In response to Stange’s

command, Miller turned around, took a few steps away

from the wooden fence, lay down on his stomach, and

placed his arms spread-eagle out to his sides. According to

Stange’s version of the facts, Miller kept his arms under his

body and ignored his repeated commands to place his hands

behind his back, but because this case comes before us from

a motion for summary judgment, we take all of the facts,

Nos. 11-2906 & 12-2950 5

including this one, in the light most favorable to Miller, and

construe all reasonable inferences from the evidence in his

favor. Townsend v. Cooper, No. 12–3620, 2014 WL 3511731, *5

(7th Cir. July 17, 2014).

At this point, Miller was lying on the ground with his

head pointing south toward 44th street and close to the chain

link fence, his feet pointing north toward the wooden fence,

and his face was on the ground turned to the east, toward

the eastern side of the chain link fence. Seconds after Miller

lay down on the ground in response to Stange’s order,

Gonzalez arrived. Gonzalez testified that he could not see

Miller at all. Miller does not dispute this, but argues that he

submitted competent evidence that the yard was lighted

from a nearby source, and that any weeds in the yard did

not cover the entire area such that they would hide him from

view. Relying on this evidence, Miller asserts, a jury could

reasonably discredit Gonzalez’s claim that he could not see

that Miller was spread-eagle on the ground and thus no

longer a threat to anyone—an assertion we will explore

more below. Gonzalez jumped the chain link fence and

landed directly on Miller’s head, breaking his left jaw.

As the officers handcuffed Miller and walked him to the

car, Miller continued to resist and told Gonzalez, “You ain’t

have to break my jaw.” In response, Gonzalez said, “I told

you not to run.”

On the way to the squad car, Miller told the officers, “I

ain’t going to say anything about this. Just let me go.” The

officers declined the deal and instead insisted that Miller

receive medical care at the hospital where he had emergency

surgery to repair his broken jaw. Miller’s jaw was wired shut

6 Nos. 11-2906 & 12-2950

for about six weeks and he was placed on a liquid diet and

had pain that could not be controlled with over-the-counter

pain medication. Miller now complains of a persistent click

in his jaw when he opens his mouth.

Miller filed suit against Officers Stange and Gonzalez

under 42 U.S.C. § 1983 claiming that the officers violated his

Fourth Amendment rights by using excessive force during

his arrest. Specifically, Miller alleged that Gonzalez used

excessive force when he fractured Miller’s jaw and that

Stange was liable for failing to prevent Gonzalez from

injuring him.

Gonzalez and Stange filed a motion for summary

judgment arguing that no reasonable jury could find that

their actions were objectively unreasonable because Miller’s

injuries resulted from an accident rather than through

intentional acts, and that if it was purposeful, the force was

reasonable given the circumstances that Miller might have

been the stabbing suspect and that Gonzalez jumped the

fence to assist a fellow officer who might have been being

attacked. Stange argued that Miller’s claim against him was

factually unreasonable and legally insufficient because he

was not in a position to intervene and he could not have

anticipated nor prevented Gonzalez from injuring Miller.

Finally, both defendants argued that they were entitled to

qualified immunity because they did not violate a

constitutional right.

The district court granted summary judgment to both

officers. The court agreed that Stange “did not have time to

do anything” to prevent the blow, and rejected as too “far

fetched” the theory that Gonzalez could jump the fence and

Nos. 11-2906 & 12-2950 7

land in a darkened, overgrown yard with enough precision

to intentionally strike Miller’s jaw. (R.62, p.8,9). For that

reason, the court concluded that Miller had not shown any

evidence of “intentional use of force that could be deemed

excessive.” Id. at 8. Because it found that the officers had not

violated Miller’s Fourth Amendment rights, the court did

not reach the issue of qualified immunity.

After the district court entered judgment, Miller moved

for relief under Federal Rule of Civil Procedure 60(b), based

on a newly discovered written statement of the stabbing

victim. In the statement, the victim reports that his assailant

“appeared to be” a white male. Miller argued that this

evidence undercuts the grant of summary judgment because

he is a light-skinned African American thereby vitiating the

reasonableness of Gonzalez’s suspicion that he had

committed a serious crime. Miller also pointed out that the

police reports made no mention of a red vehicle. The court

denied the motion, stating that the evidence would not

change the outcome of the case. We have consolidated

Miller’s separate appeals from his underlying judgment and

the denial of his Rule 60(b) motion.

On appeal Miller argues that we should vacate the grants

of summary judgment. He contends that a reasonable jury

could find that Gonzalez intentionally used excessive force

during his arrest, and that Stange could have prevented it.

Miller also argues that the statement of the stabbing victim

he submitted with his Rule 60(b) motion should have caused

the court to vacate the judgment against him because he

showed that, during the chase, Gonzalez could not have

reasonably believed that he was the stabbing suspect.

8 Nos. 11-2906 & 12-2950

II.

We begin our de novo review of the grant of the motion

for summary judgment against Stange, as the facts involving

the claim against him are simpler. We review those facts in

the light most favorable to Miller, the non-movant and

construe all reasonable inferences from the evidence in his

favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, (1986);

Townsend, 2014 WL 3511751 at *1.

A police officer can be liable for another officer’s

excessive force only if that officer had a realistic opportunity

to intervene and stop the first officer’s actions. See Sanchez v.

City of Chicago, 700 F.3d 919, 925–926 (7th Cir. 2012); Miller v.

Smith, 220 F.3d 491, 495 (7th Cir. 2000); Yang v. Hardin, 37

F.3d 282, 285 (7th Cir. 1994). A “realistic opportunity” means

a chance to warn the officer using excessive force to stop. See

Abdullahi v. City of Madison, 423 F.3d 763, 774 (7th Cir. 2005).

But Stange had no reason to think that Gonzalez would

strike Miller when he jumped into the yard, and thus no

time to act until after the one blow to the jaw was over. Even

if Stange thought Gonzalez was using excessive force, he

could not have known it until the moment that Gonzalez

landed on Miller’s jaw, and by then it was too late. Even

Miller claims that he did not see Gonzalez until the officer

was “flying over the fence.” (R. 53, p.2; R. 45–2, Deposition

of Julian Miller at 51.). Miller argues that a jury could

reasonably find that Stange had reason to believe that

Gonzalez would jump over the fence into the yard and, in

doing so, strike Miller. But Miller’s speculation, hunches and

intuition cannot defeat summary judgment. Payne v. Pauley,

337 F.3d 767, 772 (7th Cir. 2003). Nor can Miller thwart

Nos. 11-2906 & 12-2950 9

summary judgment by speculating as to Stange’s state of

mind. Id. Miller admits that Stange and Gonzalez did not

plan the chase, the capture, or the arrest. And it is

undisputed that Stange and Gonzalez were not together and

therefore did not have time to confer or plan any sort of use

of force or positioning of Miller on the ground before Stange

jumped the fence. The only opportunity Stange would have

had to intervene would have been as he saw Gonzalez

jumping the fence, and by then there was no reasonable

opportunity to intervene. And because the alleged excessive

force was limited to this one act, there was no ongoing

ability to intervene. Under these facts, a jury could not find

that Stange is liable for failing to intervene. See Hadley v.

Gutierrez, 526 F.3d 1324, 1330–31 (11th Cir. 2008) (concluding

that officer was not liable for separate officer’s excessive

force because he could not have anticipated or stopped

officer’s single punch to plaintiff’s stomach); O’Neill v.

Krzeminski, 839 F.2d 9, 11–12 (2d Cir. 1988) (concluding that

non-intervening officer had no opportunity to prevent three

punches in quick succession to plaintiff, but could be liable

for later inaction while plaintiff was dragged across the

floor).

Gonzalez’s summary judgment motion, on the other

hand, falls on the other side of the line. Recall that our job

when assessing a summary judgment motion is not to weigh

evidence, make credibility determinations, resolve factual

disputes and swearing contests, or decide which inferences

to draw from the facts. McCann v. Iroquois Mem’l Hosp., 622

F.3d 745, 752 (7th Cir. 2010); Payne, 337 F.3d at 770.

10 Nos. 11-2906 & 12-2950

Sometimes the heftiness of the evidence on one side, or

the credulity of a particular litigant makes our task of

suspending factual and credibility determinations difficult,

but whatever the difficulty, we must stick to the task on

summary judgment. Payne, 337 F.3d at 771. That is, summary

judgment is not appropriate “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving

party.” Anderson, 477 U.S. at 248. We must therefore

construe the record in the light most favorable to the

nonmovant and avoid the temptation to decide which

party’s version of the facts is more likely true. Shepherd v.

Slater Steels Corp., 168 F.3d 998, 1009–10 (7th Cir. 1999).

The district court concluded that Miller lacked sufficient

evidence that Gonzalez’s blow was intentional. But it is

difficult to imagine—short of an admission from Gonzalez—

what other evidence Miller could present of Gonzalez’s

intent. The district court discredits Miller’s assertion that

Gonzalez could see him when he jumped over the fence,

reasoning that Gonzalez had no reason to know where in the

“dark, overgrown yard” Miller was hidden. But according to

Miller, Gonzalez could see him from outside the yard and

knew that he was subdued. Miller asserts that the officer was

considerably taller than the chain-link fence, the area was

illuminated by nearby lighting, and Gonzalez had enough

time to see Miller on the ground because Miller was

prostrate for ten to twelve seconds before Gonzalez jumped

over the fence and struck him. Under this version of events,

it is an unremarkable stretch to conclude that Gonzalez may

have, as Miller alleges, deliberately dropped his knee with

Nos. 11-2906 & 12-2950 11

his body’s full weight onto Miller’s jaw, even though Miller

was no longer resisting arrest.

The district court appears to have been crediting

Gonzalez’s version of the facts instead. The district court

concluded that “Officer Gonzalez was in pursuit on foot and

followed the plaintiff and another officer over the fence and

into a yard. In doing so, he stumbled and fell and his knee

landed on the plaintiff’s jaw.” (R.62, p.8). But this was

Gonzalez’s account of events from his affidavit, not Miller’s.

A jury could also infer from the exchange immediately

thereafter that Gonzalez did indeed intend to injure Miller.

Miller exclaimed, “You ain’t have to break my jaw!” and

Gonzalez replied “I told you not to run.” Of course one

interpretation is that Gonzalez was merely stating the

unremarkable truism that [he] had ordered Miller to halt

and he disobeyed. But Miller’s alternate interpretation—that

Gonzalez was implying that he was retaliating against Miller

for his decision to run—is not inherently implausible. Cf.

Richman v. Sheahan, 512 F.3d 876, 882 (7th Cir. 2008) (noting

that bad blood between arresting officers and arrestee could

allow jury to infer, “if just barely,” that officers were

attempting to punish, and not just arrest him). Deciding

which inference to draw from the conversation is the task of

a fact finder. Anderson, 477 U.S. at 255; Payne, 337 F.3d at 770.

The district court also concluded that it is too implausible

that Gonzalez could have aimed for and struck Miller’s face

in the dark, but the question of implausibility begs the

question: According to Miller, when Gonzalez arrived at the

enclosed yard, he could see for at least ten seconds that

Miller lay motionless on his stomach, at gunpoint, and with

12 Nos. 11-2906 & 12-2950

his arms outstretched. Despite Miller’s exhibited and

observed passivity, Gonzalez jumped the fence and used the

weight of his body to strike Miller’s jaw. The district court’s

decision ultimately rests on the proposition that an

accidental use of force cannot be excessive under the Fourth

Amendment. But whether Gonzalez’s use of force was

accidental is precisely the disputed question—a question

that cannot be resolved on this record given the competing

versions of the event. See Pauley, 337 F.3d at 770 (“Where the

parties present two vastly different stories … it is almost

certain that there are genuine issues of material fact in

dispute.”).

Finally Miller also asserts that the discrepancy between

Gonzalez’s police report and his affidavit provides further

evidence that a jury might use to conclude that Gonzalez

was manipulating facts to cover up his intentional use of

force. In his police report Gonzalez states that he “jumped

the fence slipped on the wet grass and dove to help [police

officer] Stange. I then landed on the suspect and heard him

yell out Man you landed on my jaw.” (R. 52–10, p. 1). In his

affidavit he states that he “fell forward off of the fence” and

landed on Miller. (R. 49, p. 3). Perhaps, as the defendants

point out, this is merely the result of slightly different

wording rather than an actual material discrepancy, but such

a determination is one for a fact-finding jury.

Having concluded that Miller, if believed, has presented

evidence from which a rational jury could determine that

Gonzalez deliberately inflicted the blow that broke his jaw,

we must also reject Gonzalez’s alternative argument that the

use of such force was reasonable under the circumstances.

Nos. 11-2906 & 12-2950 13

In assessing whether an officer’s use of force violates the

Fourth Amendment, we ask whether the officer’s actions are

objectively reasonable in light of the information known at

the time of an arrest. See Phillips v. Cmty Ins. Corp., 678 F.3d

513, 519–20 (7th Cir. 2012); Common v. City of Chicago, 661

F.3d 940, 943 (7th Cir. 2011); Marion v. City of Corydon,

Indiana, 559 F.3d 700, 705 (7th Cir. 2009). This question turns

on the “severity of the crime at issue, whether the suspect

poses an immediate threat to the safety of the officers or

others, and whether [the suspect] is actively resisting arrest

or attempting to evade arrest by flight.” Graham v. Connor,

490 U.S. 386, 396 (1989). As will be clear from the discussion

that follows, Miller’s right to be free from the type of force

Gonzalez applied was “clearly established,” such that

Gonzalez is not entitled to qualified immunity. See Abbott v.

Sangamon Cnty., Ill., 705 F.3d 706, 725 (7th Cir. 2013);

Sallenger v. Oakes, 473 F.3d 731, 741 (7th Cir. 2007).

If Miller is believed, Gonzalez saw him subdued at

gunpoint, lying motionless and spread-eagled on the

ground, and then deliberately brought down his knee on

Miller’s jaw with enough force to break it. The officers

concede that under Miller’s version of events (which we

must credit at this point) he demonstrated only “passive

resistance,” that is, lying with his arms outstretched and

obeying every order except for the order to move his hands

behind his back. See, e.g., Phillips, 678 F.3d at 525. (describing

a willful refusal to obey a police officer’s order as “passive

resistance” warranting only a minimal use of force). Under

the aforementioned factors elucidated by the Court in

Graham (suspected crime, threat to officers, and resistance),

14 Nos. 11-2906 & 12-2950

the law is clearly established that police officers cannot use

“significant” force on suspects who are only passively

resisting arrest. See Abbott, 705 F.3d at 732 (citing cases

dating back to 1995).

This prohibition against significant force against a

subdued suspect applies notwithstanding a suspect’s

previous behavior—including resisting arrest, threatening

officer safety, or potentially carrying a weapon. See Jennings

v. Jones, 499 F.3d 2, 11, 16–18 (1st Cir. 2007) (officer who may

have deliberately broken ankle of no-longer-resisting suspect

was not entitled to qualified immunity even though suspect

had previously been actively resisting arrest, police could

not see suspect’s hands as they were trapped under his

body, and police reasonably believed the suspect had

weapon); Smith v. Mattox, 127 F.3d 1416, 1419–20 (11th Cir.

1997) (officer who intentionally broke suspect’s arm during

handcuffing, after suspect submitted to an order to lie on the

ground was not entitled to qualified immunity even though

the suspect had threatened officer’s safety, and had resisted

arrest by running away); see also Cyrus v. Town of

Mukwonago, Wisconsin, 624 F.3d 856, 863 (7th Cir. 2010) (force

that is reasonable while a suspect poses a threat may no

longer be reasonable as the threat decreases); Ellis v.

Wynalda, 999 F.2d 243, 247 (7th Cir. 1993) (same).

By Miller’s account he was visible to Gonzalez and had

been motionless for upwards of ten seconds, at gunpoint,

when Gonzalez kneed him in the jaw. If true, this situation is

distinguishable from the situation in Johnson v. Scott, 576 F.3d

658, 660 (7th Cir. 2009), upon which Gonzalez relies. In

Johnson, a shooting suspect fled from police until he was

Nos. 11-2906 & 12-2950 15

cornered in a residential yard. Id. at 659. Literally moments

after the suspect turned and offered to surrender, he was

bitten by the pursuing officer’s dog and the officer struck

him several times until he was handcuffed. Id. at 659–60. In

affirming the district court’s grant of summary judgment on

Johnson’s excessive-force claim, we ruled that, while officers

may not continue to use force against a subdued suspect,

Johnson was not yet known to be subdued when his

pursuers applied force. Id. at 660. The critical fact in Johnson

was that the officer “had no idea how Johnson was going to

behave once he was cornered.” Id. at 660. Unlike the

arresting officer in Johnson, by Miller’s account, Gonzalez

could see that he was prone and subdued at gunpoint. Given

this, it would not be objectively reasonable to break Miller’s

jaw to effectuate arrest (or to protect the officers),

notwithstanding his previous attempt to flee. And as the

cases cited above demonstrate, this was clearly established at

the time of Miller’s arrest.

As for Miller’s Rule 60(b) motion, Miller argued that the

newly discovered evidence that Miller sought to introduce

through the motion would change the outcome on summary

judgment because it precluded the district court’s finding

that Gonzalez acted reasonably. Because we are vacating

and remanding the grant of summary judgment for

Gonzalez, Miller’s Rule 60(b) motion is no longer at issue.

For all of these reasons, we VACATE the grant of

summary judgment in favor of Gonzalez and remand for

further proceedings consistent with this opinion. In all other

respects, the judgment is AFFIRMED.

16 Nos. 11-2906 & 12-2950

CUDAHY, Circuit Judge, dissenting in part. I agree that the

judgment for Officer Stange must be affirmed. But, I am also

convinced that there is insufficient evidence supporting Mr.

Miller’s claim that somehow Officer Gonzalez jumped over

the fence in an obscure area and deliberately broke Mr.

Miller’s jaw while he was lying on his stomach. The evidence

Mr. Miller has presented simply does not create a plausible

story, even viewing the skimpy evidence in Miller’s favor as

we must on summary judgment review. Accordingly, I

would affirm the judgment for Officer Gonzalez as well.