Michael Kingsley v. Stan Hendrickson

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 12-3639

MICHAEL B. KINGSLEY,

Plaintiff-Appellant,

v.

STAN HENDRICKSON, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 3:10-cv-00832-bbc — Barbara B. Crabb, Judge.

____________________

SUBMITTED JULY 24, 2015 ∗ — DECIDED SEPTEMBER 8, 2015

____________________

Before RIPPLE and HAMILTON, Circuit Judges, and

STADTMUELLER, District Judge. ∗∗

∗After examining the briefs and record, we have concluded that oral ar-

gument is unnecessary. The appeal therefore is submitted on the briefs

and record. See Fed. R. App. P. 34(a)(2).

∗∗ Of the United States District Court for the Eastern District of Wisconsin,

sitting by designation.

2 No. 12-3639

PER CURIAM. This matter is before the court on remand

from the Supreme Court of the United States. On June 22,

2015, the Court vacated our judgment and remanded the case

to us for further proceedings. Pursuant to our Circuit Rule 54,

the parties now have submitted statements of their respective

positions. For the reasons set forth in this opinion, we now

vacate the judgment of the district court and remand this case

to the district court for a new trial.

A.

We assume familiarity with the decision of the Supreme

Court, Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), and with

the earlier decision of this court, Kingsley v. Hendrickson, 744

F.3d 443 (7th Cir. 2014), and therefore we only briefly summa-

rize those proceedings here. Bringing his action under 42

U.S.C. § 1983 against various officials at the Monroe County

Jail in Sparta, Wisconsin, Mr. Kingsley claimed that jail offi-

cials had used excessive force in applying a Taser to him while

he was held as a pretrial detainee at the facility. The jury

found for the defendants. Mr. Kingsley appealed to this court,

claiming that he had been prejudiced by the instructions

given to the jury. In particular, Mr. Kingsley maintained that

the district court had erred by instructing the jury that he was

required to establish the subjective intent of the officers. In af-

firming the judgment of the district court, we determined that

the jury “instructions were not an erroneous or confusing

statement of the law of this circuit.” Kingsley, 744 F.3d at 445.

Specifically, we held that relevant Supreme Court precedent

directed us to evaluate an excessive force claim by a pretrial

detainee using the Due Process Clause of the Fourteenth

Amendment. Looking to our own cases, we concluded that

No. 12-3639 3

“some consideration of [the] intent” of the officers was sup-

ported in our cases, but that “it is limited in significant meas-

ure by the fact that it is discernable from objective considera-

tions.” Id. at 452 (emphasis in original). One of our number

dissented.

Resolving a split among the circuits on that issue, the Su-

preme Court vacated our decision and held “that a pretrial

detainee must show only that the force purposely or know-

ingly used against him was objectively unreasonable” and

that no showing regarding the defendant’s state of mind is

required. Kingsley, 135 S. Ct. at 2473. The court then remanded

the case to this court and directed us to determine whether

the district court’s error could be characterized as harmless

based “in part on the detailed specifics of th[e] case.” Id. at

2477. The Court then remanded the case to this court and di-

rected that we address that issue.

In his Rule 54 statement, Mr. Kingsley submits that we

ought to remand this case to the district court for a new trial

on his excessive force claim against Sergeant Stan Hendrick-

son and Deputy Fritz Degner. The defendants take a different

position; in their view, the decision of the Supreme Court en-

titles them to qualified immunity. Alternatively, they submit

that any error in the instructions was harmless.

B.

With this background, we now follow the direction of the

Supreme Court and address the question of harmless error.

“[I]n order to obtain a new trial based on an incorrect jury in-

struction, [an appellant] must establish both that the instruc-

4 No. 12-3639

tions failed to properly state the law and that he was preju-

diced by the error because the jury was likely to be misled or

confused.” Davis v. Wessel, 792 F.3d 793, 798 (7th Cir. 2015)

(alterations in original) (internal quotation marks omitted). 1

As the Supreme Court noted, 2 this question is usually a fact-

intensive inquiry that requires assessment of the entire rec-

ord.

We have undertaken the required scrutiny of the record

and are convinced that the error in this case cannot be charac-

terized as harmless. True, many of the factors to which the

district court invited the jury’s attention were the same factors

that a jury would assess under the objective standard now

mandated by the Supreme Court. Nevertheless, those factors

were suggested to the jury not in the context of applying them

to an objective test but as circumstantial evidence from which

an inference of reckless or malicious intent might be drawn.

Moreover, given the evidence of record, the jurors might well

have decided that, although the officers had acted in an objec-

tively unreasonable manner, they did not have the subjective

intent required by the erroneous instruction. That is, the ju-

rors might well have concluded that the officers acted in an

objectively unreasonable manner in their effort to handle a

manacled prisoner, a conclusion supported by the testimony

of Mr. Kingsley’s expert. Nevertheless, the jury also might

have concluded that the officers, while unreasonable in their

approach, did not have a reckless or malicious intent.

1See also Johnson v. Gen. Bd. of Pension & Health Benefits of United Methodist

Church, 733 F.3d 722, 733 (7th Cir. 2013), cert. denied, 135 S. Ct. 92 (2014).

2 Kingsley v. Hendrickson, 135 S. Ct. 2466, 2477 (2015).

No. 12-3639 5

Under the Supreme Court’s holding, Mr. Kingsley should

prevail if he is able to establish that the officers acted in an

unreasonable manner—without regard to their subjective in-

tent. The evidence of record would have supported a finding

for him under that theory, but the jury was told that it also

had to find the officers had a proscribed intent. This last re-

quirement increased, significantly, his burden of proof. The

error was not harmless.

C.

The defendants next suggest that they should be able to

avoid retrial because they are entitled to qualified immunity.

Their argument is a nuanced one. In their view, the decision

of the Supreme Court, resolving a circuit split in its decision

in this case, altered the substantive law of liability. Because

there was a division among the circuits on the state of the law

at the time that they acted, they contend that they cannot be

held liable for their actions.

Although the matter of qualified immunity was brought

to the attention of the Court, its instructions to us make no

mention of our returning to this issue. In any event, we do not

believe that this defense is a viable one here. In § 1983 actions,

“[q]ualified immunity shields government officials from civil

damages liability unless the official violated a statutory or

constitutional right that was clearly established at the time of

the challenged conduct.” Taylor v. Barkes, 135 S. Ct. 2042, 2044

(2015) (internal quotation marks omitted). Under this stand-

ard, “[a]n officer cannot be said to have violated a clearly es-

tablished right unless the right’s contours were sufficiently

definite that any reasonable official in [his] shoes would have

6 No. 12-3639

understood that he was violating it, meaning that existing

precedent ... placed the statutory or constitutional question

beyond debate.” City & Cty. of San Francisco, Cal. v. Sheehan,

135 S. Ct. 1765, 1774 (2015) (second and third alteration in

original) (citation omitted) (internal quotation marks omit-

ted). To address this question, the Supreme Court has in-

structed us that we must define the right in question with a

sufficient degree of particularity. 3 Thus, in this case, the scope

of the right in issue must be drawn more narrowly than the

right of a pretrial detainee to be free from excessive force dur-

ing his detention; instead, we must examine whether the law

clearly established that the use of a Taser on a non-resisting

detainee, lying prone and handcuffed behind his back, was

constitutionally excessive.

Here, the facts surrounding the underlying incident are in

sharp dispute. When those facts are construed in the light

most favorable to Mr. Kingsley, see Saucier v. Katz, 533 U.S.

194, 201 (2001), a reasonable officer was certainly on notice at

the time of the occurrence that Mr. Kingsley’s conduct did not

justify the sort of force described in his account. According to

Mr. Kingsley, he was not resisting the officers in a manner

that justified slamming his head into the wall, using a Taser

while he was manacled, and leaving him alone after use of

that instrument. Our precedent makes clear that when the of-

ficers applied the Taser to Mr. Kingsley in May 2010, use of

the Taser violated Mr. Kingsley’s right to be free from exces-

sive force if he was not resisting. See Lewis v. Downey, 581 F.3d

3See, e.g., City & Cty. of San Francisco, Cal. v. Sheehan, 135 S. Ct. 1765, 1775–

76 (2015); Brousseau v. Haugen, 543 U.S. 194, 198–99 (2004); Anderson v.

Creighton, 483 U.S. 635, 639–40 (1987).

No. 12-3639 7

467, 478–79 (7th Cir. 2009) (denying qualified immunity to of-

ficers who applied a Taser to a pretrial detainee lying “prone

on [a] bed, weakened, and docile,” in response to his refusal

of an order to get out of bed); Brooks v. City of Aurora, Ill., 653

F.3d 478, 487 (7th Cir. 2011) (noting that prior cases had estab-

lished the illegality of the use of pepper spray on an arrestee

who was “already … handcuffed and … offering no physical

resistance” or was “lying face down … with both arms hand-

cuffed behind his back” (internal quotation marks omitted));

see also Sallenger v. Oakes, 473 F.3d 731, 741–42 (7th Cir. 2007)

(noting, in its evaluation of the officers’ conduct for immunity

purposes, that the fact that the force was applied after the ar-

restee was handcuffed was a significant factor in denying im-

munity); cf. Forrest v. Prine, 620 F.3d 739, 745 (7th Cir. 2010)

(finding force was not unconstitutionally excessive when

Taser was applied “where the officers were faced with aggres-

sion, disruption, [and] physical threat” and where plaintiff

“posed an immediate threat to safety and order within the

jail” (alteration in original) (internal quotation marks omit-

ted)).

If we were to accept the defendants’ argument here, we

would untether the qualified immunity defense from its

moorings of protecting those acting in reliance on a standard

that is later determined to be infirm. Here, before and after the

Supreme Court’s decision in this case, the standards for the

amount of force that can be permissibly employed remain the

same. To accept the defense of qualified immunity here, we

would have to accept the dubious proposition that, at the time

the officers acted, they were on notice only that they could not

have a reckless or malicious intent and that, as long as they

acted without such an intent, they could apply any degree of

force they chose. As we have noted, however, the law clearly

8 No. 12-3639

established that the amount of force had to be reasonable in

light of the legitimate objectives of the institution.

Accordingly, the judgment of the district court is reversed,

and the case is remanded for further proceedings in accord-

ance with this opinion.

REVERSED and REMANDED