Estate of Williams v. Indiana State Police Department

In the

United States Court of Appeals

For the Seventh Circuit

No. 14-2523

ESTATE OF WILLIAM E. WILLIAMS,

et al.,

Plaintiffs-Appellants,

v.

INDIANA STATE POLICE DEPARTMENT,

et al.,

Defendants-Appellees.

Appeal from the United States District Court for the

Southern District of Indiana, Terre Haute Division.

No. 2:12-cv-00324-JMS-DKL — Jane E. Magnus-Stinson, Judge.

2 Nos. 14-2523 & 14-2808

No. 14-2808

NANCY BROWN,

Plaintiff-Appellee,

v.

WAYNE BLANCHARD and WALWORTH

COUNTY, WISCONSIN,

Defendants-Appellants.

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 2:13-cv-00511-LA — Lynn Adelman, Judge.

BOTH ARGUED JANUARY 20, 2015

BOTH DECIDED AUGUST 13, 2015

Before RIPPLE and ROVNER, Circuit Judges, and KENNELLY,

District Judge.*

ROVNER, Circuit Judge. We have consolidated for decision

these two appeals, heard on the same day, that present similar

issues of law relating to the reasonableness of force under the

Fourth Amendment. In both cases, family members called

police officers to their home because a family member had

*

The Honorable Matthew F. Kennelly, United States District Court for the

Northern District of Illinois, sitting by designation.

Nos. 14-2523 & 14-2808 3

locked himself in a room of his home and was threatening

suicide. The officers responded to the distress call, but in both

cases the situation tragically ended with the person’s death as

a result of shots fired by the officers. Although we will discuss

the facts in more detail later, the basic circumstances were as

follows. In the case on behalf of the estate of Williams, the

police officers were faced with a person, William E. Williams,

who had locked himself in a bathroom, had taken all the Xanax

left in a prescription bottle, and had cut himself and com-

plained that it was taking longer than expected for him to

bleed out. The officers had no good vantage point to see him in

the second floor bathroom, and he repeatedly threatened to kill

anyone who attempted to come into the bathroom. The officers

unlocked the bathroom door and fired tasers at Williams, but

those tasers had no effect. When Williams pursued the officers

with a knife, the officers shot and killed him. In the case

brought by Nancy Brown, John Brown had also cut himself,

and was locked in his bedroom although his mother had a key

and had come in and spoken with him. Officers could see him

through the bedroom window. Shortly after arriving, an officer

at the scene decided to kick the bedroom door in, and ulti-

mately he fatally shot John Brown who also possessed a knife.

On behalf of the deceased person, the plaintiffs in each case

brought suit against the officers pursuant to 42 U.S.C. § 1983,

alleging that the officers used excessive force in violation of the

Fourth Amendment when they effected the seizure.

I.

Because the Fourth Amendment explicitly addresses the

sort of physically intrusive government conduct that consti-

tutes a seizure, that amendment rather than generalized

4 Nos. 14-2523 & 14-2808

notions of substantive due process guides such claims.

Graham v. Connor, 490 U.S. 386, 395 (1989). In determining

whether the force used to effect a particular seizure is ‘reason-

able’ under the Fourth Amendment, we must balance the

nature and quality of the intrusion on the individual’s Fourth

Amendment interests against the importance of the govern-

mental interest alleged to justify the intrusion. Id. at 396;

Fitzgerald v. Santoro, 707 F.3d 725, 733 (7th Cir. 2013); Abbott v.

Sangamon County, Illinois, 705 F.3d 706, 724 (7th Cir. 2013). Such

an analysis is inherently fact-dependent, requiring consider-

ation of such factors as the severity of the crime at issue,

whether the person posed an immediate threat to the safety of

the officers or others, and whether the person was actively

resisting the officers. Graham, 490 U.S. at 396; Miller v. Gonzalez,

761 F.3d 822, 829 (7th Cir. 2014); Abbott, 705 F.3d at 724. In

assessing such a claim, however, we must remain cognizant of

the incredibly difficult task facing law enforcement officers

called to address fluid situations such as those presented in

these cases. Accordingly, the reasonableness of an officer’s

actions must be assessed from the perspective of a reasonable

officer on the scene, not based on the “20/20 vision of hind-

sight.” Graham, 490 U.S. at 396; Fitzgerald, 707 F.3d at 733; City

and County of San Francisco, California v. Sheehan, ___ U.S. ___,

135 S. Ct. 1765, 1775 (2015). That assessment must include a

recognition that officers are often forced to make split second

judgments in tense, uncertain, and rapidly evolving situations,

as to the amount of force necessary in a particular situation.

Graham, 490 U.S. at 396-97; Abbott, 705 F.3d at 724; Sheehan,

135 S. Ct. at 1775. We thus give considerable leeway to law

enforcement officers’ assessments regarding the degree of force

Nos. 14-2523 & 14-2808 5

appropriate in dangerous situations. Abbott, 705 F.3d at 724-25.

Throughout the analysis, the reasonableness inquiry is an

objective one, which examines whether the officer’s actions are

objectively reasonable in light of the totality of the facts and

circumstances confronting him or her, without regard for

consideration of the officer’s subjective intent or motivations.

Graham, 490 U.S. at 397; Miller, 761 F.3d at 828-29; Fitzgerald,

707 F.3d at 733. An officer’s use of force is unreasonable if in

light of all those circumstances at the time of the seizure, the

officer used greater force than was reasonably necessary to

effectuate the seizure. Id. “The Supreme Court further has

counseled that it is reasonable for a law enforcement officer to

use deadly force if an objectively reasonable officer in the same

circumstances would conclude that the suspect posed a threat

of death or serious physical injury to the officer or to others.”

Marion v. City of Corydon, Indiana, 559 F.3d 700, 705 (7th Cir.

2009), citing Tennessee v. Garner, 471 U.S. 1, 11-12 (1985).

If we determine that the use of force was excessive under

that constitutional standard, we must turn to the next question,

which is whether the officers are entitled to qualified immunity

for their actions. “Qualified immunity, in effect, affords

enhanced deference to officers’ on-scene judgments about the

level of necessary force … because, even if the plaintiffs

demonstrate that excessive force was used, they must further

establish that it was objectively unreasonable for the officer to

believe that the force was lawful–i.e., they must demonstrate

that the right to be free from the particular use of force under

the relevant circumstances was ‘clearly established.’” Abbott,

705 F.3d at 725. For qualified immunity purposes, a right is

clearly established if the contours of that right are sufficiently

6 Nos. 14-2523 & 14-2808

clear that a reasonable officer would understand that his

actions violate that right—“[i]n other words, ‘existing prece-

dent must have placed the … constitutional questions beyond

debate.’” Id., quoting Reichle v. Howards, ___ U.S. ___, 132 S. Ct.

2088, 2093 (2012); Sheehan, 135 S. Ct. at 1774.

In both cases before us today, the district court was pre-

sented with a motion for summary judgment. In Williams, the

court granted summary judgment in favor of the officer

defendants, concluding that the officers were entitled to

qualified immunity. The plaintiffs now appeal that determina-

tion. In contrast, the district court in Brown denied summary

judgment to the officers on the constitutional claim as well as

on the issue of qualified immunity. The defendants appealed

that denial to this court. See Weinmann v. McClone, 787 F.3d

444, 447 (7th Cir. 2015)(discussing the appealability of denials

of qualified immunity).

The Supreme Court recently addressed a Fourth

Amendment challenge in circumstances analogous to the ones

presented here in Sheehan, 135 S. Ct. 1765, and its analysis is

instructive. Teresa Sheehan resided in a group home for

persons dealing with mental illness. Id. at 1769. Sheehan’s

mental condition appeared to be deteriorating to the extent

that she had stopped taking her medications, no longer spoke

with her psychiatrist, and reportedly had stopped changing

her clothes or eating. Id. When the social worker used a key to

enter Sheehan’s room, Sheehan yelled at the social worker to

get out and shouted that she had a knife and would kill the

social worker if necessary. Id. at 1769-70. Police officers were

then called to the group home. The officers knocked on

Nos. 14-2523 & 14-2808 7

Sheehan’s door, announced who they were, and indicated that

they wanted to help Sheehan. Id. at 1770. When Sheehan failed

to respond, the officers entered the room using a key, and

again Sheehan responded in a violent manner. Sheehan

grabbed a knife and began approaching the officers, yelling

that she was going to kill them, that she did not need help, and

that they should get out. Id. The officers left the room, but

determined that immediate action was required, and chose not

to wait for the backup that was already on the way. Id. at 1771.

One officer then pushed the door open while the other began

using pepper spray on Sheehan. Id. Sheehan did not drop the

knife, however, and when Sheehan was within a few feet of the

officers, one of the officers shot her twice. Id. When she failed

to collapse, the other officer fired multiple shots at her. Id.

Sheehan survived the incident, and ultimately brought a § 1983

challenge alleging that the officers violated her Fourth Amend-

ment right against unreasonable seizures.

The Ninth Circuit held that although the initial entry into

the room was lawful, and the firing of the shots was reasonable

when the pepper spray failed to stop Sheehan’s advance, a jury

could find that the officers provoked Sheehan by needlessly

forcing that second confrontation. Id. at 1772. The majority also

denied the claim of qualified immunity, holding that “it was

clearly established that an officer cannot ‘forcibly enter the

home of an armed, mentally ill subject who had been acting

irrationally and had threatened anyone who entered when

there was no objective need for immediate entry.’” Id., quoting

Sheehan v. City and County of San Francisco, 743 F.3d 1211, 1229

(9th Cir. 2014).

8 Nos. 14-2523 & 14-2808

The Court reversed the Ninth Circuit on the qualified

immunity issue. The Court agreed that the officers did not

violate any federal right when they opened Sheehan’s door the

first time, because “‘[l]aw enforcement officers may enter a

home without a warrant to render emergency assistance to an

injured occupant or to protect an occupant from imminent

injury.’” Id. at 1774-75, quoting Brigham City v. Stuart, 547 U.S.

398, 403 (2006). Moreover, the Court recognized that the

second entry was also constitutionally permissible because it

was part of a continuous search or seizure, and the officers

knew that Sheehan had a weapon and had threatened to use it

to kill three people, and that delay could make the situation

more dangerous. Id. at 1775. Under the reasonableness stan-

dard of the Fourth Amendment, the Court held that it was

reasonable for police to move quickly “if delay ‘would gravely

endanger their lives or the lives of others,’” even if the actions

proved with the benefit of hindsight to be a mistake. Id.,

quoting Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 298-99

(1967). The Court noted that the Constitution is not blind to the

need for officers to make split second judgments. Id. The Court

further agreed that upon opening the door the second time, the

officers’ use of force was reasonable–from the initial use of

pepper spray to the escalation to deadly force in an effort to

protect themselves. According to the Court, the “real question”

in the case was whether the Fourth Amendment was violated

when the officers opened the door for the second time rather

than attempting to accommodate her disability. In other words,

the Court considered whether the knowledge of her disability

impacted the reasonableness of the officers’ actions. Because

the briefing focused on this issue in the context of whether the

Nos. 14-2523 & 14-2808 9

officers had qualified immunity, the Court proceeded directly

to the question of whether the officers’ failure to accommodate

Sheehan’s illness violated clearly established law.

The Court held that the cases relied upon by the Ninth

Circuit panel majority were insufficient to constitute the type

of clearly established law that would jettison qualified immu-

nity. For instance, the Court stated that the Ninth Circuit’s

reliance on Graham v. Connor, 90 U.S. 386 (1989), was misplaced

because Graham established only that the objective reasonable-

ness test applies to excessive force claims and that was “far too

general a proposition to control this case.” Sheehan, 135 S. Ct.

at 1775. The Court emphasized that it had repeatedly told

courts not to define clearly established law at a high level of

generality. “Qualified immunity is no immunity at all if ‘clearly

established’ law can simply be defined as a right to be free

from unreasonable searches and seizures.” Id. at 1776. In

comparing the facts of the cases relied upon by the Ninth

Circuit panel majority, the Court determined that the facts

were too dissimilar to control the case. Moreover, the Court

noted that a Fourth Amendment violation could not be

established by merely demonstrating that bad tactics resulted

in a deadly confrontation that could have been avoided. Id. at

1777. Nor did it matter, for qualified immunity purposes, that

an expert testified that the officers failed to follow their

training as to how to handle mentally ill persons in such

scenarios. Id. “Rather, so long as ‘a reasonable officer could

have believed that his conduct was justified,’ a plaintiff cannot

‘[a]void summary judgment by simply producing an expert’s

report that an officer’s conduct leading up to a deadly confron-

tation was imprudent, inappropriate, or even reckless.’” Id.,

10 Nos. 14-2523 & 14-2808

quoting Billington v. Smith, 292 F.3d 1177, 1189 (9th Cir. 2002).

The Court noted that even if the Ninth Circuit panel majority

had properly concluded that its cases would have put officers

on notice that it was unreasonable to forcibly enter the home of

an armed, threatening, mentally ill suspect absent an objective

need for immediate entry, qualified immunity was proper

because no precedent clearly established that there was no

objective need for immediate entry here. Id. at 1777. Because

the officers had no fair and clear warning of what the Constitu-

tion required in the situation that they faced on that day,

qualified immunity applied. Id. at 1778. Sheehan thus cautions

against interpreting the “clearly established law” requirement

too broadly and substituting general propositions of law for

cases that are factually similar enough to apprise the officers of

the contours of the constitutional protections due in the

situation. We turn then, to the application of Sheehan and the

other cases set forth above, to the facts of the individual cases

before us, largely drawing from the thorough presentation of

facts set forth in the comprehensive district court decisions.

II.

On the evening of January 15, 2012, William (Bill) Williams

sent a text message to his sons Tyler and Jacob which caused

them to fear that he was going to commit suicide. Both sons

proceeded to the home. When Jacob arrived at the home, he

broke down the locked bedroom door, and discovered that his

father had locked himself into the bathroom adjoining the

bedroom. His father threatened to kill Jacob if he came into the

bathroom. Jacob informed the 911 dispatcher that his father

was probably going to shoot himself and that his father

threatened to stab him if he opened the bathroom door. In the

Nos. 14-2523 & 14-2808 11

meantime, Williams’ sister and her boyfriend arrived at the

home. In response to the 911 contact, Putnam County deputy

sheriff John Chadd, Cloverdale police officer Charles Hallam,

and Indiana State Police officer Brian Thomas arrived at the

scene. Those responders were later joined by officers Patrick

Labhart and Chris Springstun of the Indiana Department of

Natural Resources. For the sake of brevity, we will refer to all

of the law enforcement responders collectively as “officers” in

this opinion whether deputy sheriffs or officers and regardless

of agency. The dispatcher informed Chadd and Hallam that

Williams may have cut his wrists. Chadd asked the dispatcher

to contact the Putnam County Sheriff’s Department negotiator,

but the dispatcher was unable to reach the negotiator.

At some point around that time, Chadd and Labhart used

a stepladder outside the home in an attempt to see inside the

window of the bathroom. The appellants vehemently dispute

the officers’ claim that they could see blood in the bathroom

from the vantage point on the ladder, but that dispute is

immaterial in this case because there is no dispute that Wil-

liams in fact had cut himself in an attempt to commit suicide

and that the officers were aware of that fact. The appellants

argue that the extent of Williams’ injuries is material because

the officers testified that the amount of blood factored into

their decision to subsequently unlock the bathroom door and

confront Williams. The subjective motivation of the officers,

however is irrelevant because the assessment as to the reason-

ableness of the force used in a seizure is an objective test. As

we noted above, courts consider only whether the officers’

actions are objectively reasonable in light of the totality of the

facts and circumstances confronting them, regardless of the

12 Nos. 14-2523 & 14-2808

officers’ subjective motivations. Graham, 490 U.S. at 397; Miller,

761 F.3d at 828-29. As will be discussed later, the undisputed

evidence established that Williams had engaged in behavior

that endangered his life and necessitated action by the officers,

and therefore we need not consider whether additional

evidence in the form of visual observation of blood in the

bathroom was also undisputed.

While some of the officers were attempting to see into the

bathroom, Hallam spoke with Williams from within the

bedroom. Hallam asked Williams what was going on, to which

Williams responded “Who the f— are you?” After Hallam

identified himself as a Cloverdale police officer and asked

Williams how he was doing, Williams responded “Get the f—

out of here. Get the f— out of my house. Leave me alone.”

Williams threatened to stab Hallam or anyone else who

opened the door.

The appellants dispute that Hallam spoke with Williams

and thus contest whether Williams was ever aware that officers

were in the house, arguing that it is relevant to whether the

subsequent actions were objectively reasonable. The district

court, however, properly resolved this issue, and we agree

with its reasoning. Hallam testified that he spoke with Wil-

liams alone, but appellants rely on the testimony of four

officers that they did not hear Hallam communicate with

Williams. That does not contradict Hallam’s testimony, and in

fact is consistent with his testimony that he was alone when he

communicated with Williams. Moreover, three officers testified

that Hallam informed them at the time that he had spoken with

Williams. The appellants did not present evidence disputing

that testimony, such as evidence that Hallam was never alone

Nos. 14-2523 & 14-2808 13

in the bedroom and thus could not have had that conversation.

The only other evidence relied upon by the appellants are

subsequent conversations the officers had with Tyler, who

arrived at the home after the time at which Hallam had the

conversation with Williams. At that time, other officers were

present in the bedroom and they informed Tyler to keep his

voice down because Williams did not know they were there,

and cautioned him to not let his father know that any law

enforcement was present. That conversation does not contra-

dict Hallam’s testimony that he had a prior conversation with

Williams, and in fact their desire to keep Williams in the dark

as to their presence in the room is consistent with the testi-

mony that Williams became agitated when Hallam identified

himself as an officer and demanded that Hallam leave the

house. In short, the appellants have presented no evidence to

dispute that Hallam spoke with Williams. The officers’ instruc-

tion not to alert Williams that they were gathering outside the

bathroom does not support an inference that Hallam therefore

did not communicate with Williams earlier in the ordeal. Mere

speculation is insufficient to raise a genuine issue of fact.

It is undisputed that in the officers’ presence, Tyler spoke

with Williams through the bathroom door. In that conversa-

tion, Williams told Tyler that he had knives and an injecting

needle used to marinate turkeys. He further stated that he had

taken the rest of his bottle of Xanax and that he had cut

himself, but that it had “taken longer than planned,” and was

not “going as fast as the internet said,” but that he needed 30

more minutes and he would be done. He also asked Tyler to

get him a gun.

14 Nos. 14-2523 & 14-2808

Chadd told Tyler to let Williams believe that he had a gun

in an attempt to lure him out, and even placed his own gun on

the floor outside the door so Williams could see it when

Williams demanded evidence of the gun. Williams still could

not see the gun, however, and refused to open the door.

The officers had discussed with Williams’ mother how to

open the locked bathroom door from the outside, and she had

provided them with a Q-Tip with the top removed, which

could be used to “pop” the lock on the door. After the attempt

to lure Williams out with the gun failed, the officers decided to

unlock the door in that manner at which time Chadd and

Hallam would tase Williams and then handcuff him. The

testimony is contradictory as to whether the plan was to open

the door and tase him only if he failed to come out voluntarily,

or to immediately tase him without warning. When the officers

unlocked and opened the door, Williams was standing at the

sink facing the mirror, with two knives sitting on the sink by

his hands - - each knife measuring approximately a foot long.

Williams turned towards the doorway, and Chadd and Hallam

fired their tasers at him (either simultaneously or in short

succession). The tasers unfortunately had no effect on Wil-

liams, who exited the bathroom towards Chadd and Hallam

while raising a knife above his head. Chadd and Hallam

backed away from Williams, who turned toward Hallam and

continued to follow him as Hallam backed up and moved

around the bed. When Hallam rounded the final corner of the

bed, he fired at Williams but missed, and subsequently fired a

second shot that hit Williams. Hallam then continued backing

up until he fell on the bed. Williams fell on top of Hallam and

his knife cut one of Hallam’s fingers. When there was a brief

Nos. 14-2523 & 14-2808 15

separation of Hallam and Williams, other officers fired at

Williams as well, and he was fatally struck. Approximately 2-4

seconds elapsed from when Williams exited the bathroom to

when he was shot, and around 29 minutes from when the

officers first arrived at the home to the tragic culmination of

events.

The appellants maintain that the use of force against a

subject who is not actively resisting violates clearly established

law and the officers accordingly are not entitled to qualified

immunity. They argue that the district court failed to view the

facts in the light most favorable to Williams, and if the court

had properly considered the evidence it would have deter-

mined that Williams was not actively resisting. We have

already discussed the appellants’ arguments relating to the

officers’ ability to see into the bathroom window, and as to

whether there is a dispute of fact that Hallam spoke with

Williams. The appellants additionally argue that the district

court improperly weighed evidence when it considered

Williams’ threats to kill anyone who entered the bathroom and

determined that those statements established probable cause

to believe Williams had committed felony intimidation. The

appellants assert that threatening statements cannot be

criminal unless the speaker intended to communicate a “true

threat,” and that there is a dispute as to whether Williams

intended to harm anyone because family members testified

that they did not believe Williams intended to harm anyone.

As an initial matter, we note that the repeated explicit threats

by Williams, coupled with his possession of a weapon and his

refusal to cooperate or exit the bathroom, provided an objec-

tive basis for the officers to believe that he posed a threat to the

16 Nos. 14-2523 & 14-2808

safety of himself and others. The family members’ subjective

interpretations do not alter that, and here the family members’

actions do not even support that characterization of their

subjective state of mind. Although the family members entered

into the locked bedroom, and had the ability to unlock the

bathroom with a Q-Tip in their possession, none of the family

members did so after speaking with Williams and being told

that he would kill anyone who entered. Their actions are

consistent with a concern that he could harm himself or others,

not with a belief that his threats were merely idle ones.

The Sheehan decision discussed above addressed a similar

situation. In the present case, as the Court held in Sheehan, the

officers were entitled to enter Williams’ room “to render

emergency assistance to [the] injured occupant or to protect

[the] occupant from imminent injury.” Sheehan, 135 S. Ct. at

1774-75 (internal quotations marks omitted). Specifically, it is

undisputed that the officers were aware that Williams had cut

himself in an attempt to commit suicide and that he told his

son Tyler, in the officers’ presence, that he had taken a large

quantity of Xanac in an effort to harm or kill himself that was

“tak[ing] longer than planned.” Under the rule as announced

in Sheehan, it is of no consequence for purposes of the Fourth

Amendment that Williams’ injury and imminent injury were

self-inflicted; the officers were not required to allow him to

carry out his suicide attempt. When the officers entered

Williams’ room, they initially attempted to take control of him

without using deadly force. As we discuss later, their initial

use of the tasers was appropriate under constitutional stan-

dards given Williams’ possession of a knife and his threat to

stab anyone who entered. When that was unsuccessful, and

Nos. 14-2523 & 14-2808 17

Williams advanced on them brandishing the knife, the officers

acted reasonably in using deadly force; plaintiffs do not argue

otherwise.

That brings us to the appellants’ related argument, which

is that a reasonable officer, upon opening the bathroom door,

would have been able to see that Williams was not at risk of

bleeding out and therefore there were no exigent circum-

stances necessitating action. Once again, the Supreme Court

and this court have repeatedly rejected that type of second-

guessing of the split second decisions officers are forced to

make in confronting rapidly evolving situations. Id. at 1775.

Williams had acknowledged that he had cut himself and that

it was taking longer than he thought to lose sufficient blood to

end his life, and had also admitted to taking all of the remain-

ing Xanax pills in his possession in an attempt to end his life.

He also threatened to kill anyone who entered. Faced with

those undisputed facts, as a matter of law the officers pos-

sessed an objectively reasonable belief that action was needed

to avoid the threat to his life and the potential threat to others

inherent in the danger that he could emerge in that agitated

state with the knives. The appellants argue that no exigency

was present because Williams had not lost consciousness and

“it is generally well known that most suicide attempts are not

successful, unless a gun is used,” and in support point to the

testimony of a forensic pathologist that only 20-50% of suicide

attempts are successful. This rather astounding argument is

unavailing. Setting aside the obvious question that perhaps

non-firearms suicide attempts are unsuccessful precisely

because timely aid is rendered, the argument would alter the

standard to one that would allow officers to act only in the

18 Nos. 14-2523 & 14-2808

event of imminent death. There is no support for such a

standard that would prohibit officers from rendering aid to a

person who has already harmed himself, or that would require

them to wait until a hostile person emerged and attacked

others before attempting to defuse the situation, and it is

inconsistent with Sheehan.

Finally, no clearly established law renders the officers’ use

of force unreasonable in light of the circumstances that they

faced. Williams’ presence in the confined space of a bathroom,

inaccessible from the outside, presented the officers with

limited options, which was further impacted by the space

limits of the bedroom that adjoined it. The decision to employ

tasers immediately upon opening the bathroom door was a

reasonable use of force to subdue a person who potentially

presented an immediate threat to himself and the officers once

that door was opened. Under the qualified immunity standard,

the appellants must demonstrate that “the right to be free from

the particular use of force under the relevant circumstances

was ‘clearly established.’” Abbott, 705 F.3d at 725. Rather than

establishing that such force was impermissible, our cases

repeatedly have upheld the use of non-lethal force such as

tasers in such situations. We have described tasers as “falling

somewhere in the middle of the nonlethal-force spectrum.” Id.

at 726. Although describing it as more than a de minimis

application of force and recognizing the pain that it can cause,

“we have also acknowledged that the use of a taser, like the

use of pepper spray or pain-compliance techniques, generally

does not constitute as much force as so-called impact weapons,

such as baton launchers and beanbag projectiles.” Id. We have

upheld its use in a situation in which a person was refusing to

Nos. 14-2523 & 14-2808 19

move from a doorway and an officer believed that fellow

officers in the blocked room needed assistance, Clarett v.

Roberts, 657 F.3d 664, 674-75 (7th Cir. 2011), and where a

defendant “displayed an unwillingness to accede to reasonable

police commands, and his actions suggested an intent to use

violence to fend off further police action,” United States v.

Norris, 640 F.3d 295, 303 (7th Cir. 2011). Abbott, 705 F.3d at

727-28.

In contrast, the appellants have failed to present any case

that would establish that the use of a taser in a scenario such as

this one is excessive. Their arguments rest essentially on the

characterization of Williams’ actions as passive rather than

active resistance without any real sense of urgency or threat to

others, which is premised on the speculative notion that his

threats were idle ones. Moreover, their assertion that the

officers should have been able to ascertain once the door was

open that Williams was not in immediate danger of death and

did not pose a threat is unavailing for multiple reasons. First,

he was standing at the sink with two large knives on the sink

next to his hands, and turned toward the door as it opened.

That is not evidence that he had abandoned his threat to kill

those who tried to enter. Moreover, courts have repeatedly

rejected any attempt to hold officers to such an impossible

standard of altering their conduct based on the split-second

unfolding of events. For instance, in Johnson v. Scott, 576 F.3d

658, 660 (7th Cir. 2009), we held that an officer did not act

unreasonably in striking a shooting suspect several times until

the suspect was handcuffed, despite evidence that immediately

prior to that the shooting suspect had turned and offered to

surrender when cornered in a residential yard. We held that

20 Nos. 14-2523 & 14-2808

the suspect was not known to be subdued when the pursuers

applied force. We have since noted that “[t]he critical fact in

Johnson was that the officer ‘had no idea how Johnson was

going to behave once he was cornered.’” Miller, 761 F.3d at 830,

quoting Johnson, 576 F.3d at 660. The officers in this case

similarly could not know how Williams would react to the

opening of the door, other than Williams’ own words that he

would try to kill them, and their decision to employ non-lethal

force to avoid that danger was reasonable. The appellants here,

like the plaintiffs in Sheehan, cannot point to any case involving

a dangerous, obviously unstable person in possession of a

weapon, making threats, which would have put the officers on

notice that their conduct was constitutionally impermissible.

Accordingly, the officers were entitled to qualified immunity

for their decision to open the door and utilize the tasers.

Once the tasers were employed without effect, the officers

were presented with a person advancing towards them with a

knife, and in fact one officer was ultimately stabbed by

Williams. The appellants do not contest that the officers acted

reasonably in firing the shots at that point. Accordingly, the

district court properly held that the officers were entitled to

qualified immunity.

III.

We turn then to the facts in Brown. Late in the evening on

May 4, 2012, John Brown, who was 22 years old, left voice and

text messages with friends indicating that he was contemplat-

ing suicide. One of those friends contacted his mother, Nancy

Brown, who resided in the mobile home with John, and

informed her that John was in his bedroom and that he was

Nos. 14-2523 & 14-2808 21

hurting himself. Nancy immediately went to check on John,

and after unlocking his bedroom door with a key, found him

sitting at his computer desk, crying and holding a folding

knife. He was bleeding from his wrist. Nancy rushed over to

John and tried to take the knife from him, but he refused to let

go of it. She then held his head in her arms and told him she

was going to get help. John locked the door again when Nancy

exited the bedroom to call 911.

Nancy informed the dispatcher that her son was attempting

to commit suicide and had a knife. She further stated that there

were no other weapons in the bedroom, that John was bipolar

and refused to take his medication, and that he had been

drinking heavily and had cut himself in the past.

Deputy Christopher Such was the first to arrive at the

mobile home. He spoke with Nancy, and then proceeded down

the hallway to the bedroom door. Such identified himself to

John through the closed door. Loud music could be heard in

the bedroom, and John did not initially respond. Such then

prompted John by asking if John remembered Such from a

prior encounter in which Such has given John a ride to a

nearby city. According to Such’s affidavit, John responded “f—

you,” but Nancy maintains that he did not so respond.

Shortly thereafter, at 12:14 a.m., Deputy Wayne Blanchard

arrived at the scene. The sequence of events that followed his

arrival transpired quickly, because by 12:16 a.m, two minutes

after Blanchard’s arrival, Blanchard had shot and killed John.

The facts as to what transpired in that time are in dispute.

Blanchard in his affidavit states that he spoke with Nancy who

conveyed the same information to him as she had to Such, and

22 Nos. 14-2523 & 14-2808

then Such briefed him on his communication through the door

with John. Blanchard removed his gun from the holster and

proceeded to the bedroom door, while Such went outside and

looked through John’s window. Such radioed to Blanchard that

John was sitting at his computer desk drinking a beer and

smoking a cigarette, with his back to the bedroom door.

Declining Nancy’s offer of a key to unlock the bedroom door,

Blanchard determined that he would instead kick in the

bedroom door so that John would not have time to access any

other weapons (although Nancy stated that she had informed

the dispatcher that no other weapons were in the bedroom,

and the dispatcher relayed all information to the deputies).

Nancy proceeded back down the hallway and sat down on a

sofa in the living room, from which she could hear but could

not see the subsequent events.

According to Blanchard, he then kicked down the bedroom

door and then took a step back to position himself. Such then

ran back into the mobile home and positioned himself behind

Blanchard, drawing his taser in the process. They observed

John sitting at the computer desk as described by Such in the

radio communication. Blanchard ordered John to show his

hands, but John briefly glanced at Blanchard and ignored the

order. Blanchard repeated the order and John again ignored it.

John then stood up, and the affidavit statements of Such and

Blanchard are jarringly similar in the description of John. They

both stated that John turned toward them in a “Frankenstein-

like” manner. They observed blood on John’s left arm, and he

was holding a folding knife in his hand. John gave them a

“thousand-yard stare,” walked to the bedroom door and

slammed it closed. Blanchard immediately kicked the door in

Nos. 14-2523 & 14-2808 23

a second time, pointed the gun at John who was halfway

between the door frame and his desk, and ordered John to

drop the knife. John told Blanchard that Blanchard would have

to shoot him, and then, according to both deputies in yet

another similar description, John “rolled his shoulders for-

ward,” started moving the knife “in an upward position” and

began advancing towards Blanchard. When John was within 5

or 6 feet of Blanchard, Blanchard fired two shots at him

resulting in his death.

Nancy heard the exchange from her position in the living

room, and her statement differs from those of the deputies in

critical ways. Specifically, she stated that she did not hear

Blanchard tell John to drop the knife, but before she heard

Blanchard kick in the door, she heard one of the deputies call

John’s name twice. She then heard John say “fine, come in and

shoot me between the eyes and kill me.” She then heard the

door being kicked, slammed shut, and kicked in a second time,

followed directly by two gunshots. Under her version,

therefore, after the door was kicked in the second time, John

was never ordered to drop his knife and did not state that they

would have to kill him. The district court held that Nancy’s

testimony created a genuine issue of fact as to whether John

was in fact threatening the officers with a knife at the time he

was shot. The court held that Nancy could not see whether

John raised his knife, but her testimony as to what she heard

cast doubt on the veracity of the deputies’ version of events,

and thus it was a question for the jury. Because this is an

interlocutory appeal from the denial of qualified immunity, our

review is limited in scope. We may review the purely legal

question of whether “a given set of undisputed facts demon-

24 Nos. 14-2523 & 14-2808

strates a violation of clearly established law,” but we may not

review the record “‘to determine whether the district court

erred in finding that a genuine issue of material fact exists.’”

Gutierrez v. Kermon, 722 F.3d 1003, 1009 (7th Cir. 2013), quoting

Via v. LaGrand, 469 F.3d 618, 624 (7th Cir. 2006); Leaf v. Shelnutt,

400 F.3d 1070, 1078 (7th Cir. 2005). Accordingly, in determin-

ing whether the district court properly denied qualified

immunity, we accept the district court’s determination that

there was a genuine issue of fact as to whether John was raising

the knife and advancing toward the deputies at the time he

was shot.

In denying the motion for summary judgment based on

qualified immunity, the district court identified two factual

scenarios under which, in its view, a jury could find that

Blanchard unreasonably had seized John. The first theory of

liability considered by the district court is that Blanchard

unreasonably created an encounter that led to the use of force

against John. According to the district court, Blanchard could

be liable under that theory even if he established that he

reasonably thought John was advancing on him with an

upraised knife, if the jury found that Blanchard’s actions in

kicking in the door were not reasonably calculated to prevent

John from harming himself, which was the only legitimate

ground for initiating a seizure.

Blanchard argues that the district court erred in denying

qualified immunity on that ground, because it was not clearly

established that pre-seizure conduct of a law enforcement

officer can violate the Fourth Amendment’s prohibition of

unreasonable seizures. Blanchard is entitled to qualified

immunity unless existing precedent placed the constitutional

Nos. 14-2523 & 14-2808 25

question beyond debate. Abbott, 705 F.3d at 725. That stan-

dard is not met here. Our caselaw is far from clear as to the

relevance of pre-seizure conduct, or even as to a determination

as to what conduct falls within the designation “pre-seizure,”

although the majority of cases hold that it may not form the

basis for a Fourth Amendment claim. Compare Marion, 559 F.3d

at 705 (“Pre-seizure police conduct cannot serve as a basis for

liability under the Fourth Amendment; we limit our analysis to

force used when a seizure occurs.”), and McCoy v. Harrison, 341

F.3d 600, 605 (7th Cir. 2003) (“Even unreasonable, unjustified, or

outrageous conduct by an officer is not prohibited by the Fourth

Amendment if it does not involve a seizure.” (alteration omitted)

(internal quotation marks omitted)), and Carter v. Buscher, 973

F.2d 1328, 1332 (7th Cir. 1992) (“[P]re-seizure conduct is not

subject to Fourth Amendment scrutiny.”), with Sledd v. Lindsay,

102 F.3d 282, 288 (7th Cir. 1996) (noting that if an officer fails to

identify himself the normal rules governing the use of deadly

force are modified, and discussing the Sixth Circuit’s determina-

tion that an officer violates the Fourth Amendment if he “unrea-

sonably create[s an] encounter that [leads] to a use of force” by

“entering a private residence late at night with no indication of

identity”), and Estate of Starks v. Enyart, 5 F.3d 230, 234 (7th Cir.

1993) (holding that an officer violates the Fourth Amendment if

he “unreasonably create[s an] encounter” in which an individual

would be “unable to react in order to avoid presenting a deadly

threat to [the officer]”); see also Aaron Kimber, Note, Righteous

Shooting, Unreasonable Seizure? The Relevance of an Officer's Pre-

Seizure Conduct in an Excessive Force Claim, 13 Wm. & Mary Bill

Rts. J. 651, 673 (2004) (“The Seventh Circuit has been inconsistent

in how it allows pre-seizure conduct to be utilized by a plain-

tiff.”). The district court acknowledged that “no case precisely

26 Nos. 14-2523 & 14-2808

identifies Blanchard’s conduct as the kind of ‘unreasonable

conduct’ that creates a dangerous situation,” but concluded

that it nevertheless would have been obvious to a reasonable

officer in Blanchard’s position. Dist. Ct. Decision and Order at

12 (July 17, 2014). Given the lack of clarity in cases in this area,

we disagree that Blanchard was on notice that his conduct

leading up to the encounter could itself be the basis for Fourth

Amendment liability. See Sheehan, 135 S. Ct. at 1775-76

(cautioning against defining clearly established law at a high

level of generality).

That does not mean that Blanchard’s pre-seizure conduct is

irrelevant to the Fourth Amendment claim. The sequence of

events leading up to the seizure is relevant because the

reasonableness of the seizure is evaluated in light of the totality

of the circumstances. Deering v. Reich, 183 F.3d 645, 649-52 (7th

Cir. 1999). For instance, the short period of time that elapsed

from Blanchard’s arrival to the confrontation, and his abrupt

action in kicking in the door, give context to John’s possession

of the knife that might be different if John had himself opened

the door holding the knife. The circumstances known by

Blanchard, or even created by him, inform the determination

as to whether the lethal response was an objectively reasonable

one. Id. But our caselaw does not clearly establish that an

officer may be liable under the Fourth Amendment solely for

his pre-seizure conduct that led to the encounter. See Graham,

490 U.S. at 395 (claim of excessive force in the course of a

seizure should be analyzed under the Fourth Amendment

reasonableness standard rather than under the substantive due

process approach); Carter, 973 F.2d at 1332(“[t]he Fourth

Amendment prohibits unreasonable seizures, not unreason-

Nos. 14-2523 & 14-2808 27

able, unjustified or outrageous conduct in general.”)

The second theory of liability considered by the district court

concerns whether Blanchard is entitled to qualified immunity

for using deadly force in the absence of probable cause to

believe that John was threatening him at the time. Under this

theory of liability, the issue is whether it is clearly established

law that Blanchard could not constitutionally use lethal force

against John in the circumstances facing Blanchard. On appeal,

Blanchard argues both that the record establishes that he had

probable cause to believe that John was raising the knife and

advancing, and that even absent that John’s possession of the

knife in those circumstances were sufficiently threatening that

he was entitled to qualified immunity. As we stated above, the

first argument impermissibly seeks a review of the district

court’s determination that there is a genuine issue of fact as to

whether John was advancing with the knife. Accordingly, we

review only whether Blanchard is entitled to qualified immu-

nity regardless of whether John was merely holding the knife

or advancing with it.

In contrast to the situation presented in Williams, in this

case, Blanchard resorted to the use of lethal force as an initial

matter, and he did so despite the possession of a taser by Such

who was present at the scene. There may have been reasons for

that choice, given the confined nature of the mobile home

including a hallway that was only 2-1/2 feet wide thus limiting

mobility, but the record is undeveloped as to that. We must

balance the nature of the force used—from lethal through the

spectrum of non-lethal options such as flash bang devices, bean

bags, pepper spray and tasers—with the governmental interest

at stake. Even focusing the reasonableness inquiry, as

28 Nos. 14-2523 & 14-2808

Blanchard urges, on only the shooting itself as opposed to the

second breach of the door that preceded it, the district court

properly denied qualified immunity.

It is well-established—and has been since long before the

shooting at issue here—that “a person has a right not to be

seized through the use of deadly force unless he puts another

person (including a police officer) in imminent danger or he is

actively resisting arrest and the circumstances warrant that

degree of force.” Weinmann, 787 F.3d at 448; Marion, 559 F.3d

at 705; Muhammed v. City of Chicago, 316 F.3d 680, 683 (7th Cir.

2002); Tennessee v. Garner, 471 U.S. 1, 11-12 (1985). Accordingly,

we have repeatedly recognized that officers could not use

significant force on nonresisting or passively resisting suspects.

Abbott, 705 F.3d at 732; Estate of Starks, 5 F.3d at 233. If Nancy’s

description is accurate, and we must credit her version at this

stage because the district court determined that it created a

genuine issue of fact, then deadly force was used here even

though John was merely passively resisting their entreaties,

and in the absence of any threats of violence by John toward

the deputies or anyone else. See Phillips v. Community Ins.

Corp., 678 F.3d 513, 525 (7th Cir. 2012) and Estate of Escobedo v.

Bender, 600 F.3d 770, 780-81 (7th Cir. 2010) (discussing conduct

constituting merely passive resistance). In fact, Nancy had

entered the room and engaged in physical contact with John,

and at no point did he threaten violence towards her nor did

she express any concern with such a possibility to the deputies.

Moreover, Such was able to see John through the outside

window, and could observe his behavior. At that time, there

was no indication that John posed a threat to others, and the

extent to which he posed a threat to himself is not established

Nos. 14-2523 & 14-2808 29

by this record, given that he was observed sitting, smoking a

cigarette, drinking a beer, walking and talking and not in

apparent immediate danger.

We addressed a strikingly similar factual scenario recently

in Weinmann, 787 F.3d 444. In that case, Susan Weinmann

called 911 to report that her husband, Jerome Weinmann, was

in the garage threatening to kill himself and had access to a

gun. Id. at 446. Within three minutes of arriving, the respond-

ing officer Deputy Patrick J. McClone decided to kick in the

garage door to make an unannounced entry. Id. Although

acknowledging that McClone never pointed the shotgun at

him, McClone argued that it was undisputed that he perceived

the weapon as being pointed in his direction, and he shot

Jerome four times. Id. at 447. We held that McClone was not

entitled to qualified immunity because the facts did not suggest

that Jerome had put another person in imminent danger or was

actively resisting arrest in circumstances warranting such force.

Id. at 448-49. McClone knew only that Jerome had access to a

firearm, was potentially suicidal, had not responded to the

attempt to speak with him, and that sounds from inside the

garage resembled pattering on cupboard doors. Id. at 449. We

deemed those facts insufficient to suggest anything more than

Jerome placing himself in imminent danger. Id. We also

rejected the argument that the force was justified because of

the danger inherent in entering an enclosed garage with a

single entrance. Id.

The analysis is the same here. Under this theory of liability,

Blanchard was faced with facts indicating that John posed a

potential threat to himself, but there were no facts indicating

30 Nos. 14-2523 & 14-2808

that he was a threat to others, and in fact his mother’s testi-

mony that she was able to enter the room, talk with him, and

hold his head indicates otherwise. Blanchard does not even

dispute that proposition. Instead, he argues once again that the

undisputed testimony established that John was shot because

he approached the officers with a knife in a threatening

manner. Blanchard fails to acknowledge that the district court

determined that there was a genuine dispute of fact as to that

matter, and that we cannot review that determination in this

interlocutory appeal. That dispute of fact casts doubt on the

contention that immediately after the door was kicked in a

second time, John voiced resistance and then walked toward

Blanchard with the knife, and as in Weinmann the mere

possession of the knife is insufficient to warrant summary

judgment. We are aware that officers responding to a scene in

which a suicidal person is locked in a room are faced with the

difficult determination as to whether delay in responding will

allow the person to further harm himself or to become aggres-

sive toward others. It is clearly established, however, that

officers cannot resort as an initial matter to lethal force on a

person who is merely passively resisting and has not presented

any threat of harm to others. Blanchard is not entitled to

qualified immunity under that theory of liability, and thus the

district court properly denied the motion for summary

judgment.

Accordingly, the decisions of the district courts in Williams

and Brown are AFFIRMED.