McNair, Victor R. v. Coffey, Sean

In the

United States Court of Appeals

For the Seventh Circuit

No. 00-1139

Victor R. McNair and Tre K. McNair,

Plaintiffs-Appellants,

v.

Sean Coffey,

Defendant-Appellee.

On Remand from the

Supreme Court of the United States.

Submitted August 15, 2001--Decided January 29, 2002

Before Cudahy, Coffey, and Easterbrook,

Circuit Judges.

Easterbrook, Circuit Judge. Frazell v.

Flanigan, 102 F.3d 877, 886-87 (7th Cir.

1996), held that, "once a jury has

determined under the Fourth Amendment

that the officer’s conduct was

objectively unreasonable, that conclusion

necessarily resolves for immunity

purposes whether a reasonable officer

could have believed that his conduct was

lawful." Our initial decision in this

case followed Frazell and concluded that

a jury verdict in plaintiffs’ favor on

their claim that defendant used excessive

force in arresting them precluded any

possibility of qualified immunity for the

arresting officer. McNair v. Coffey, 234

F.3d 352 (7th Cir. 2000). After Saucier

v. Katz, 121 S. Ct. 2151 (2001), held

that an officer may be immune from

damages even if the court has found him

liable under an entirely objective

approach applying a previously announced

rule of law, the Supreme Court remanded

this case to us for further

consideration. 121 S. Ct. 2545 (2001).

Plaintiffs contend that we should

maintain our position despite that

decision, but we conclude that it

requires a change in outcome as well as

analysis.

Officer Coffey had probable cause to

believe that the McNair brothers had not

paid parking tickets, and he activated

his cruiser’s lights to pull them over.

An arrest on this basis was proper. See

Whren v. United States, 517 U.S. 806

(1996). Coffey also suspected them of

drug trafficking, but of this he had

nothing more than a suspicion that turned

out to be unfounded. Despite seeing the

cruiser’s flashing lights, the McNairs

did not pull over for some time. At trial

they contended that they had delayed

because they wanted to get out of an

unsavory neighborhood before

surrendering, but this reason is not

relevant; people ordered to stop (on

probable cause to arrest) must halt

immediately; they cannot make their own

decisions about when and where they will

surrender. See Dye v. Wargo, 253 F.3d 296

(7th Cir. 2001); see also Sherrod v.

Berry, 856 F.2d 802, 805 (7th Cir. 1988)

(en banc).

Because it was dark (after 5 p.m. on

December 20), the neighborhood posed

risks, and the McNairs did not

immediately stop, Coffey called for

backup. Given the risks entailed even in

ordinary traffic stops, see Uniform Crime

Reports: Law Enforcement Personnel Table

18 (2000) (94 officers killed in traffic

stops between 1990 and 1998), this was a

sensible decision. When the McNairs

finally stopped, they were surrounded by

eight squad cars and told to get out with

their hands up; many officers leveled

weapons at the McNairs. But they were not

roughed up; matters were handled

peaceably. Victor McNair (the driver) was

issued citations for operating a vehicle

with a suspended registration and for

failing to stop when directed; both

McNairs were released within an hour. The

jury determined that Officer Coffey

violated the fourth amendment by

arranging for a show of force that was

needlessly frightening; each plaintiff

was awarded $5,000 to compensate for the

shock and indignity of the situation.

Neither in the district court nor on

appeal did Coffey take issue with the

jury’s verdict; this uncontested finding,

coupled with the holding of Frazell, led

to the conclusion that Coffey could not

receive qualified immunity.

According to Saucier, the first question

whenever a public official asserts

qualified immunity must be whether that

official violated the Constitution at

all. 121 S. Ct. at 2155-56. The Court

assumed, when writing Saucier, that this

decision would be made before trial; it

did not inquire what happens if the

official concedes that his conduct was

unconstitutional (as Coffey did, by not

contesting the jury’s verdict) and

contends only that the right was not

clearly established "in light of the

specific context of the case". Id. at

2156. It is hard to see how these can be

separated when the defendant’s concession

influences the inquiry. For the

underlying constitutional question, made

context-specific, must be something like:

"Does an excessive show of force, as

opposed to an excessive use of force,

violate the fourth amendment when

undertaken in a dangerous neighborhood

after a suspect fails to surrender on

demand?" Then the immunity question would

be whether an affirmative answer to this

question is "sufficiently clear that a

reasonable official would understand that

what he is doing violates that right."

Ibid., quoting from Anderson v.

Creighton, 483 U.S. 635, 640 (1987). It

is hard to answer the latter question

about a reasonable public official’s

understanding if the former question has

been framed poorly, answered incorrectly,

or, in this appeal, not posed in the

first place. Yet Saucier insists that it

be posed and answered.

We assume that the jury resolved all

factual disputes in the McNairs’ favor.

Juries are not authorized, however, to

determine the substance of the

Constitution. Taken in the light most

favorable to the verdict, the record

shows an over-the-top response by the

police department as an entity: too many

cars, too many gun muzzles on display. It

does not show that Officer Coffey

directed this response or controlled the

conduct of the other officers at the

scene; to the extent the record speaks to

the question, it shows that Coffey did no

more than radio for backup. (He denied at

his deposition having any control over

the number of cars that would be sent or

the other officers’ conduct when they ar

rived, and the jury was not asked to

determine whether this answer was

truthful.)

Coffey was entitled to support from

other police; the McNairs do not even

argue that the fourth amendment requires

all arrests to be made without

assistance. If the policy of the police

department were to display or use

excessive force, then the McNairs might

have a claim under Monell v. New York

Department of Social Services, 436 U.S.

658 (1978). But they do not argue that

the department had such a policy, and

Fitchburg, Wisconsin, the unincorporated

area near Madison that employed Officer

Coffey, has not been made a defendant.

Thus only Coffey’s actions matter, and

with respect to these the most that could

be said (taking all of the evidence in

the light most favorable to the verdict)

is that Coffey recognized that many other

officers might answer his call, and that

he did nothing to prevent them from

surrounding the McNairs, drawing their

weapons, and otherwise displaying force

that under the circumstances was

intimidating and frightening.

Yet nothing in the fourth amendment

specifies how many officers may respond

to a call. The number of officers is not

independently a "seizure" of any kind.

The McNairs were eventually stopped, and

thus seized, compare California v. Hodari

D., 499 U.S. 621 (1991), with Brower v.

Inyo County, 489 U.S. 593 (1989), but

that seizure was supported by probable

cause, and the McNairs do not contend

that its duration was excessive. Given

Atwater v. Lago Vista, 532 U.S. 318

(2001), which holds that the Constitution

tolerates full custodial arrests for

fine-only offenses, no such contention

could succeed. So the seizure is

unexceptionable, and plaintiffs do not

contest any kind of search.

There remains the possibility that a

seizure reasonable at the outset may

become "unreasonable" because implemented

in a needlessly frightening manner. One

must be careful of equating fright-

inducing aspects with "unreasonableness,"

however. That approach comes

uncomfortably close to overlaying a

shocks-the-conscience standard of

substantive due process on the objective

standard of the fourth amendment. We did

that in Gumz v. Morrissette, 772 F.2d

1395 (7th Cir. 1985), but overruled Gumz

two years later after concluding that

fourth amendment analysis should depend

on an objective assessment of the

officers’ conduct, rather than a

subjective assessment of the suspect’s

reaction to that conduct. See Lester v.

Chicago, 830 F.2d 706 (7th Cir. 1987).

Accord, Graham v. Connor, 490 U.S. 386

(1989). Although Sacramento v. Lewis, 523

U.S. 833, 842-45 (1998), held that a

shocks-the-conscience approach is

appropriate when no seizure occurs, a

seizure did take place in this case. Thus

the fourth amendment supplies the right

perspective. Plaintiffs recognize this;

they do not make any substantive-due-

process claim.

Viewing matters through the objective

reasonableness standard, we conclude

that, even taking the record in the light

most favorable to the McNairs, a jury

could not properly have found that

Officer Coffey personally behaved

unreasonably. Good practice may have

called for sending fewer cars, the better

to maintain patrol coverage throughout

the jurisdiction, and good community

relations may counsel leaving revolvers

in their holsters unless necessary. But

the Constitution does not displace state

and local governments as the source of

wise police practices, and it certainly

does not fasten liability on individual

officers who call for aid whenever too

many colleagues respond. Just as police

may order occupants out of their vehicles

to promote safety in a traffic stop, see

Pennsylvania v. Mimms, 434 U.S. 106

(1977); Maryland v. Wilson, 519 U.S. 408

(1997), and may take suspects into

custody for trivial offenses, see

Atwater, so they may call extra cars to

the scene to ensure that violence does

not erupt--especially after a suspect in

a rough neighborhood refuses to stop when

directed. Plaintiffs have not cited even

one post-Graham decision holding that an

excessive number of squad cars or drawn

guns can violate the fourth amendment by

giving fright or offense, if the seizure

is supported by probable cause and

otherwise reasonable. At least two--one

from this circuit--hold that a simple

display of force along these lines does

not violate the fourth amendment. See

Sharrar v. Fesling, 128 F.3d 810 (3d Cir.

1997); Wilkins v. May, 872 F.2d 190 (7th

Cir. 1989). We have found only one

contrary decision, Robinson v. Solano

County, 218 F.3d 1030 (9th Cir. 2000),

and this has been vacated on the grant of

rehearing en banc, 229 F.3d 931 (9th Cir.

2000).

Our point is not that Coffey and the

other officers necessarily behaved

"reasonably" in the tort sense. State law

might or might not have afforded the

McNairs some remedy. Our point, rather,

is that the fourth amendment does not

duplicate the tort of negligent

infliction of emotional distress, a

source of civil liability developed at

common law long after the Constitution’s

adoption. The Supreme Court has held that

this tort should not be engrafted onto

statutes enacted early in the last

century. See, e.g., Consolidated Rail

Corp. v. Gottshall, 512 U.S. 532 (1994)

(no liability under the fela for emotional

injury unless the victim also suffers

physical injury). See also Aiello v.

Providian Financial Corp., 239 F.3d 876

(7th Cir. 2001) (violation of the

automatic stay in bankruptcy does not

entitle the debtor to damages for

emotional distress). Treating the fourth

amendment as anticipating the torts of

negligent and intentional infliction of

emotional distress would have even less

support. Graham, the Court’s

authoritative discussion of excessive

force, repeatedly says or assumes that

there cannot be excessive force without

some force, referring variously to

"physically abusive governmental

conduct," 490 U.S. at 394, "physical

force," id. at 391 n.5, and force

"applied" to a suspect, id. at 392. The

McNairs are not victims of "physically

abusive governmental conduct."

The use of a swat team to make a traffic

stop could have consequences under the

fourth amendment. If, for example, a

suspect’s consent to search were prompted

by fear that the officers would react

violently to a refusal, then the consent

would be deemed involuntary and set

aside. If edgy officers opened fire, that

too could lead to liability. But

plaintiffs do not trace any search or

other touching to Officer Coffey’s radio

call for backup. The seizure was lawful

(because supported by probable cause).

Although we do not foreclose the

possibility that the circumstances of an

arrest could become "unreasonable"

without the application of physical

force, nothing in the circumstances of

this case approaches that line, so it is

unnecessary to determine where it may be

located. It is enough to say that a

reasonable officer in Coffey’s position

would not have understood that what he

was doing violated the McNairs’ rights

under the fourth amendment and therefore

cannot be required to pay damages. The

district court reached this conclusion

also, and its judgment is

affirmed.

CUDAHY, Circuit Judge, concurring. As

the majority points out, Saucier v. Katz,

121 S. Ct. 215 (2001), is a matrix that

ill-fits the present case since one of

the principal goals of Saucier is to

avoid trials of constitutional claims

barred by qualified immunity. Here the

trial has already occurred but becomes a

virtual nullity under the rules

prescribed by Saucier as best as they can

be implemented in this topsy-turvy

situation. I am none too sure what

Saucier requires here: whether a finding

of qualified immunity will do or whether

one may look behind the jury verdict,

which Officer Coffey does not contest, to

exculpate him entirely. Apart from the

unappealed verdict, a finding that he did

not violate the Constitution seems quite

supportable. In that connection, Judge

Coffey has performed a real service by

attempting to reconstruct a detailed sce

nario of Officer Coffey’s activities

during the evening in question and by

offering an interpretation of events from

Officer Coffey’s perspective.

I am troubled, however, by what seem to

me to be ambiguities in the majority’s

treatment of displays (as opposed to the

actual use) of force in relation to the

strictures of the Fourth Amendment.

Although the majority eventually concedes

that "we do not foreclose the possibility

that the circumstances of an arrest could

become ’unreasonable’ without the

application of physical force," Slip

Opinion, at 7, it elsewhere follows an

unbroken course of minimizing this

possibility. For example, at one point it

states, "One must be careful of equating

fright-inducing aspects with ’unreasonableness.’"

Slip Opinion, at 5. This seems to me to

be carrying the requirement of

objectivity to an extreme. The mental

state of the terrorized is at least one

measure of the objective reasonableness

of the terror applied. Physical injury is

not a necessary element of a claim for

excessive force. But the absence of

physical injury is an important

circumstance in the totality of the

circumstances measuring the

reasonableness of the force displayed.

In California v. Hodari D., 499 U.S.

621, 626 (1991), the Court held that an

arrest requires either the use of

physical force, or the submission to an

assertion of authority. Thus, there can

be no seizure unless the person

seizedactually yields to a show of

authority. See id. Hodari D. clarifies a

line of Fourth Amendment cases that held

that a seizure occurs when an officer

restrains a suspect by a show of

authority. See generally Graham v.

Connor, 490 U.S. 386, 395, n. 10 (1989)

(a "’seizure’ triggering the Fourth

Amendment’s protections occurs only when

government actors have, ’by means of

physical force or show of authority, . .

. in some way restrained the liberty of a

citizen.’") (citing Terry v. Ohio, 392

U.S. 1, 19, n.16 (1986)); INS v. Delgado,

466 U.S. 210, 215 (1984) (same); United

States v. Mendenhall, 446 U.S. 544, 553

(1980) (adhering to "the view that a

person is ’seized’ only when, by means of

physical force or a show of authority,

his freedom is restrained"). Hodari D.

requires, for the triggering of Fourth

Amendment protection, that the suspect

actually submit to the show of authority.

Clearly, these cases make no distinction,

as a matter of principle, between the use

of physical force and its display,

provided that the suspect submits.

Seizures of persons must satisfy the

reasonableness standard of the Fourth

Amendment. See Graham v. Connor, 490 U.S.

386, 395 (1989) (holding that "all claims

that law enforcement officers have used

excessive force--deadly or not--in the

course of an arrest, investigatory stop,

or other ’seizure’ of a free citizen

should be analyzed under the Fourth

Amendment and its ’reasonableness’

standard."). In determining whether a

seizure is reasonable, the court must

engage in an objective inquiry. See id.

at 397 ("[T]he question is whether the

officers’ actions are ’objectively

reasonable’ in light of the facts and

circumstances confronting them, without

regard to their underlying intent or

motivation."). The absence of physical

injury is clearly relevant to the

determination whether the use or display

of force is constitutionally excessive.

See Gumz v. Morrissette, 772 F.2d 1395,

1401 (7th Cir. 1985) (noting that "the

presence of some physical evidence is

certainly relevant" to the determination

whether the use of force was

constitutionally excessive), overruled on

other grounds by Lester v. City of

Chicago, 830 F.2d 706 (7th Cir. 1989);

Sharrar v. Fesling, 128 F.3d 810 (3d Cir.

1997) (extending Gumz’s rationale to an

excessive display of force claim).

Sharrar, which involved perhaps the most

frightening show of force of any reported

case, still does not support the

proposition that there can be no

excessive force without physical injury.

In Sharrar, the plaintiffs were arrested

by a SWAT team which displayed a threat

of force and used extreme tactics (that

did not result in physical injury to

three of the victims). See 128 F.3d at

821. Analyzing the case under Graham’s

objective reasonableness standard, the

majority held that the extreme measures

did not rise to the level of a

constitutional violation. Id. The Sharrar

court, however, did note that the case

was a close one, implying, of course,

that a contrary outcome was not

foreclosed. See id. at 822./1 And, this

observation is certainly incompatible

with any suggestion that a display of

force that does not result in physical

injury could in principle never violate

the Fourth Amendment. Further, the

Sharrar court explicitly stated that it

did not agree that "the absence of

physical injury necessarily signifies

that the force [used] has not been

excessive." Id. And the court noted that,

"Although there are decisions of this

court that found the use of force

excessive, notwithstanding the absence of

extensive physical contact and permanent

physical injury, the circumstances here

are distinguishable." Id. at 821.

Therefore, it would be incorrect to

dismiss the present circumstances

entirely on the basis that they merely

involve a display of force without

physical impact.

In any event, as I have suggested, it is

not clear exactly how Saucier should be

applied to the present facts but the

plausible interpretation employed here

points to affirmance of the judgment.

FOOTNOTE

/1 The dissent in Sharrar disagreed only with this

holding, arguing that if the case went to trial,

a jury could find that the use of the SWAT team

was objectively unreasonable. See 128 F.3d at

832-33.

COFFEY, Circuit Judge, concurring in judgment and

dissenting in part./1

I. INTRODUCTION

This case has an extended procedural history.

Two African-American brothers, Victor and Tre

McNair, brought suit in the Circuit Court of Dane

County in February 1999, alleging that Officer

Sean Coffey of the Fitchburg Police Department

practiced racial discrimination; committed the

torts of assault, battery, and false

imprisonment; and deprived them of their Fourth

Amendment rights by initiating a traffic stop of

their vehicle on December 20, 1997. After Coffey

removed this case to federal court, the McNairs

voluntarily dismissed their claim of

discrimination, and Coffey thereafter moved for

summary judgment on the claim of excessive force,

raising the defense of qualified immunity./2

The qualified immunity motion was denied, and

this case went to trial in early November 1999.

On two occasions during trial, Coffey again

raised the defense of qualified immunity--in a

motion for directed verdict following the

plaintiffs’ case/3 and in a motion for directed

verdict following the close of all evidence at

the trial/4--arguing that the facts taken in the

light most favorable to the McNair brothers were

insufficient to sustain a jury’s finding that he

violated the Fourth Amendment and could not have

reasonably believed that his conduct was lawful.

These motions also were denied. Following five

hours of deliberation, the jury found in favor of

Officer Coffey on the claims of assault, battery,

and false imprisonment, but found in favor of the

McNairs on their claim of excessive force. The

jury awarded each of the plaintiffs $5,000, for

a total of $10,000 in compensatory damages.

Seven days after the jury verdict, Coffey filed

a motion to alter or amend the judgment, again

raising the issue of qualified immunity--this for

the fourth time./5 The trial judge granted the

motion. The McNairs appealed to the U.S. Court of

Appeals for the Seventh Circuit, and a panel of

the court reversed the district judge, quoting

and following the holding of Frazell v. Flanigan,

102 F.3d 877, 886-87 (7th Cir. 1996), reasoning

that "once a jury has determined under the Fourth

Amendment that the officer’s conduct was

objectively unreasonable, that conclusion

necessarily resolves for immunity purposes

whether a reasonable officer could have believed

that his conduct was lawful." McNair I, 234 F.3d

352, 355 (7th Cir. 2000). Thereafter, Coffey

filed a petition for a writ of certiorari with

the Supreme Court of the United States.

Afterconsideration, the Court granted the writ

and returned this matter to the appellate court

on remand "for further consideration in light of

Saucier v. Katz," a case which reversed a Ninth

Circuit decision employing the same reasoning as

our opinion in Frazell. The Saucier Court stated,

in pertinent part, as follows:

A court required to rule upon the qualified

immunity issue must consider, then, this

threshold question: Taken in the light most

favorable to the party asserting the injury, do

the facts alleged show the officer’s conduct

violated a constitutional right? This must be the

initial inquiry. . . . If no constitutional right

would have been violated were the allegations

established, there is no necessity for further

inquiries concerning qualified immunity.

121 S.Ct. 2151, 2156 (2001).

In the penultimate sentence of its opinion, the

majority in this case overturns the decision in

McNair I and seems to hold that Officer Coffey is

entitled to qualified immunity because "a

reasonable officer in Coffey’s position would not

have understood that what he was doing violated

the McNairs’ rights" under the Fourth Amendment.

The majority, by drawing attention to whether

Coffey believed he was acting within the

boundaries of the law, suggests by its very

language that Coffey is entitled to qualified

immunity because the law was unsettled at the

time of his conduct, and thus implies that Coffey

did violate the Fourth Amendment.

I agree with the majority’s decision only

insofar that the jury’s verdict must be set

aside. However, I believe, unlike the majority,

that the Supreme Court has made it clear in their

remand and directed us to undertake a

thoroughreview of the record. Upon review, I

would dismiss this case on the basis that the

McNairs failed to establish that Officer Coffey’s

conduct violated their constitutional rights,

despite the jury verdict to the contrary. I am

convinced, as a matter of law, that the McNairs

failed to produce sufficient evidence to warrant

submitting their Fourth Amendment claims to the

jury in the first instance. We in McNair I should

have ended our inquiry there. Accordingly, while

I concur in the judgment of this court, my

decision rests on grounds other than those stated

by the majority. I am forced to write separately

because I believe that our prior decision in

McNair I, as well as the majority opinion, fails

to recite facts sufficient to sustain our

holding, misstates important aspects of the

record, and misconstrues relevant case law

concerning the extent of the Fourth Amendment’s

protection against unreasonable seizures.

Therefore, I must respectfully dissent from

certain portions of the majority opinion.

My concurrence and dissent addresses two issues.

First, in Part II of this opinion, I analyze the

McNairs’ excessive force claim in light of the

rich factual record, which establishes that

Officer Coffey and other patrolmen in the same

position would have reasonably believed that the

McNairs were a risk to the officers as well as

the general public. I explain that Officer Coffey

cannot personally be held responsible for the

display of force made by the law enforcement

officers from Fitchburg or the other

jurisdictions, who responded to his call for

backup assistance, any more than he would be

responsible for a misdeed by one of the officers

while on the scene, because the actions of these

other patrolmen were beyond his control. I then

conclude that, in any event, this simple display

of force was a reasonable response to the

potentially dangerous safety risk posed by the

McNairs. Accordingly, I am convinced that the

display of force and the subsequent seizure of

the McNair brothers was accomplished within the

parameters of the United States Constitution and

not in violation thereof.

Then, in Part III, I respectfully dissent from

the majority’s suggestion that plaintiffs

alleging excessive force cannot prevail on a

Fourth Amendment claim if they "are not victims

of physically abusive governmental conduct."/6

Ante at 7. I am of the opinion that this is an

overbroad statement of the law. I agree with the

proposition that, if a suspect is apprehended

without suffering any physical injuries, it is

likely that the police acted reasonably. However,

as I explain more fully later in this opinion,

post at 40-41, at least two cases from this

Circuit--including one written by the author of

the majority opinion--support the proposition

that a seizure resulting from an alleged

excessive display of force, standing alone, might

possibly violate the Fourth Amendment. See United

States v. Jones, 214 F.3d 836 (7th Cir. 2000);

Williams v. O’Banner, 1997 U.S. Dist. LEXIS 6873,

1997 WL 264361 (N.D. Ill. 1997).

II. THE MCNAIRS’ FOURTH AMENDMENT CLAIM

"Qualified immunity is ’an entitlement not to

stand trial or face the other burdens of litigation.’"

Saucier, 121 S.Ct. at 2156 (quoting Mitchell v.

Forsyth, 472 U.S. 511, 526 (1985)). This right

"is effectively lost if a case is erroneously

permitted to go to trial." Id.

As noted previously, on three separate occasions

prior to the jury verdict--(1) in a motion for

summary judgment; (2) in a motion for directed

verdict following the plaintiffs’ case; and (3)

in a motion for directed verdict following the

close of all evidence--Coffey raised the defense

of qualified immunity, arguing that the facts

taken in the light most favorable to the McNair

brothers were insufficient to sustain a jury’s

finding that he violated the Fourth Amendment and

could not have reasonably believed that his con

duct was lawful. The district court denied each

of these motions only to grant Coffey’s post-

verdict Motion To Alter Or Amend Judgment on the

basis that "a reasonable police officer could

have believed that the high risk procedure

Defendant Officer Coffey used was lawful based on

the law [in existence] when force was [displayed]

in this case." (Doc. No. 103 at 6.)

As explained previously, although Coffey’s

motion for summary judgment, based on qualified

immunity, explicitly argued that, "if the court

were to rule that Officer Coffey’s actions may

somehow have violated the plaintiffs’ Fourth

Amendment rights, it could not be fairly said

that a reasonable police officer in his position

would have known that his conduct was forbidden

by law," (Doc. No. 34 at 15), the trial judge

denied the motion on the basis that the presence

of "factual disputes concerning the defendant’s

conduct" precluded summary judgment. (Doc. No. 55

at 8.) Yet the law was equally settled before and

after trial; likewise, my review of the record

convinces me that the proposed finding of facts

submitted by Coffey at summary judgment, and

undisputed by the McNairs, were identical to the

material facts developed at trial./7 It is

difficult, therefore, to reconcile the judge’s

decision before trial to deny the motion for

qualified immunity with his decision after trial

to grant the motion for qualified immunity

notwithstanding the jury verdict. Indeed, if we

are to preserve the fundamental benefit that

qualified immunity confers on governmental

officials performing the difficult task of

navigating the hazy borders between permissible

and impermissible activity, i.e., avoiding the

burdens of needless litigation and trial, we are

compelled to observe that the trial judge erred

by failing to grant Officer Coffey’s motion for

summary judgment and dismiss this case more than

two years ago. See Egebergh v. Nicholson, 272

F.3d 925, 927 (7th Cir. 2001) (police officers

"are entitled to immunity before trial . . . if

the facts are construed as favorably to the

plaintiff as the record permits, [and] they still

are entitled to immunity-- in which event they

shouldn’t be put to the burden of a trial that

might cast the facts in a light unnecessarily

more favorable to them.")

A. The Issue and Standard of Review

After granting Officer Coffey’s writ of

certiorari, the Supreme Court vacated our prior

opinion and remanded this case "for further

consideration in light of Saucier v. Katz, 121

S.Ct. 2151 (2001)." 121 S.Ct. 2545 (2001).

Saucier, in turn, states as follows:

In a suit against an officer for an alleged

violation of a constitutional right, the

requisites of a qualified immunity defense must

be considered in proper sequence. . . . Qualified

immunity is an entitlement not to stand trial or

face the other burdens of litigation. . . . A

court required to rule upon the qualified

immunity issue must consider, then, this

threshold question: Taken in the light most

favorable to the party asserting the injury, do

the facts alleged show the officer’s conduct

violated a constitutional right? This must be the

initial inquiry. In the course of determining

whether a constitutional right was violated on

the premises alleged, a court might find it

necessary to set forth principles which will

become the basis for holding that a right is

clearly established. This is the process for the

law’s elaboration from case to case, and it is

one reason for our insisting upon turning to the

existence or nonexistence of a constitutional

right as the first inquiry. The law might be

deprived of this explanation were a court simply

to skip ahead to the question of whether the law

clearly established that the officer’s conduct

was unlawful in the circumstances of the case.

121 S.Ct. at 2155-56 (internal citations omitted;

emphasis supplied).

Thus, Saucier directs us to ask whether

Coffey’s conduct, viewed in the light most

favorable to the jury verdict, rises to the level

of a Fourth Amendment violation as a matter of

constitutional law. Only if this initial question

is answered in the affirmative are we to consider

whether a law enforcement officer in Coffey’s

position on December 20, 1997 would,

nevertheless, have reasonably believed that his

conduct was lawful./8 Id. at 2156. Yet the

majority opinion fails to answer the first

question that Saucier requires us to ask. The

majority contends that Coffey did not "take issue

with the jury’s verdict" and, therefore,

"concedes that his conduct was unconstitutional."

Ante at 3. This statement is confusing. I wish to

emphasize that on three separate occasions prior

to the verdict--(1) in a motion for summary

judgment; (2) in a motion for directed verdict

following the plaintiffs’ case; and (3) in a

motion for directed verdict following the close

of all evidence--Coffey did argue that his

display of force was protected by the Fourth

Amendment, even if all of the McNairs’ evidence

was accepted as true. Thus, because I am: (1)

mindful of the fact that Coffey has adequately

preserved his right to challenge the legal

sufficiency of the jury verdict against him; (2)

cognizant of our discretionary authority to

review the entire record; (3) obligated by

Saucier to clarify the boundaries of the law by

considering in every instance whether "the facts

alleged show the officer’s conduct violated a

constitutional right," 121 S.Ct. at 2156; and (4)

instructed by the Court to review this case in

light of Saucier, I am prepared to answer the

question "head on" of whether the McNair brothers

were the subject of an unreasonable seizure.

Conducting such an analysis complies with the

Saucier Court’s ultimate goal of establishing

legal principles that remove uncertainty in the

case law, guiding public officials in their daily

conduct, and protecting all but the plainly

incompetent or those who knowingly break the law

from future nettlesome lawsuits.

Indeed, although the district court dismissed

this case on the basis of qualified immunity, I

believe the more proper course in this instance

is to set aside the verdict on the independent,

clear, and more compelling basis of the

insufficiency of the evidence. Qualified immunity

is an appropriate and accepted method for

disposing of cases prior to trial, rather than

after trial, because "the denial of a qualified

immunity defense is the only procedural vehicle

a defendant can use to bring to us at the

pretrial stage, instead of after final judgment,

any question relating to the merits." Hartley v.

Parnell, 193 F.3d 1263, 1271 (11th Cir. 1999).

Conversely, because the advantage of qualified

immunity is "effectively lost if a case is

erroneously permitted to go to trial," Mitchell,

472 U.S. at 526, qualified immunity in the

context of a trial is indistinguishable from

other affirmative defenses that come into play

only if the plaintiff establishes that the

defendant has violated his rights.

Thus, it is a non-sequitur for us at the late

stage of this litigation to cloak our decision in

the language of immunity. When considering

Coffey’s post-verdict motion, I am convinced that

we should use the same legal analysis as other

cases, with the initial inquiry being whether

there were sufficient facts to support the

verdict rendered, in light of the applicable law.

I agree that if the facts substantiated the view

that Coffey violated the Constitution, then the

proper recourse would be through the doctrine of

immunity. But because his actions were reasonable

in the first instance, he is entitled to a ruling

that affirmatively characterizes his conduct as

lawful and prudent, without any discussion of a

defense that implies the existence of a valid

antecedent claim against him. See Hartley, 193

F.3d at 1273-74 (Hoeveler, J., concurring). Based

on the law of the land and my review of the

evidence adduced at trial, I agree with the law

enforcement officer that this case should never

have gone to trial and, furthermore, should never

have been submitted to the jury. See Egebergh,

272 F.3d at 926-27.

Our inquiry is whether the record contains a

legally sufficient evidentiary basis from which

a jury could have reasonably derived its verdict.

In doing so, we must consider the entire record,

without reweighing the evidence or judging the

credibility of the witnesses. Tice v. Lampert

Yards, Inc., 761 F.2d 1210, 1213 (7th Cir. 1985).

Sitting as an appellate tribunal, we assume that

the jury resolved all genuine factual disputes in

favor of the McNairs, id., but at the same time,

as I read the law, we cannot ignore the court

record containing unequivocal, undisputed,

andunimpeached evidence that is favorable to

Officer Coffey and relevant to the legal

sufficiency of the McNairs’ case. See McGee v.

Bauer, 956 F.2d 730, 735-36 (7th Cir. 1992)

(reversing jury award; dismissing case on the

basis of undisputed facts and the court’s

independent determination of the scope of the

Procedural Due Process Clause); see also

Chesapeake & Ohio Ry. Co. v. Martin, 283 U.S.

209, 216 (1931) (jury is not "at liberty, under

the guise of passing upon the credibility of a

witness, to disregard his testimony, when from no

reasonable point of view is it open to doubt.");

Ford v. Childers, 855 F.2d 1271, 1274 n.4 (7th

Cir. 1988) (en banc). Even after drawing

inferences in the light most favorable to the

verdict, I am convinced, as a matter of law, that

Officer Coffey’s conduct did not violate the

Constitution.

B. Verdict Forms and Interrogatories

in Qualified Immunity Cases

Before reviewing the evidence, however, I must

pause and comment upon how defense counsel’s

unorthodox strategy prejudiced Officer Coffey and

complicated our review of this case on appeal. In

cases of this nature, defense counsel is

responsible for timely preparing and presenting

proper interrogatories for the trial judge to

submit to the jury. Sadly, defense counsel failed

to supply the trial judge with instructions and

specific factual interrogatories related to the

material contested facts presented at trial. See

Fed. R. Civ. P. 49(b). Instead, both parties took

the easy but fatal way out (to the detriment of

the jury’s deliberative process) and presented

the trial judge with only a general verdict form

containing the following question: "Did Defendant

Sean Coffey use excessive force during the course

of the December 20, 1997 traffic stop of

Plaintiff Victor McNair [and Plaintiff Tre

McNair], which deprived [them] of [their] Fourth

Amendment right[s] to be free from unreasonable

seizure?" Counsel neglected to object to the

verdict form’s amorphous question, which

improperly invited the jury to usurp the role of

the court and resolve constitutional issues in

the form of a legal conclusion devoid of

reference to specific facts, i.e., what

constitutes the precise amount of force that may

be displayed in response to the circumstances

surrounding the safety risk Coffey

reasonablybelieved to have been posed by the

McNairs to the police and the public at large.

See McGee, 956 F.2d at 735.

It is a basic premise of our legal system that

juries are the triers of fact only; it is for the

judge, not the jury, to interpret the law and to

draw the line in the sand separating conduct that

is protected and unprotected under the

Constitution. In other words, the plaintiff must

convince the court that the facts found by the

jury are sufficient to trigger the protections of

the Fourth Amendment as a matter of law. See id.

at 735-36.

This case presents an issue similar to that in

McGee, which involved the Due Process Clause of

the Fourteenth Amendment. Plaintiff McGee alleged

a due process violation when a building inspector

posted a sign declaring McGee’s house

uninhabitable without having previously offered

him the right to participate in a hearing. We

found error with the trial court’s limited jury

instruction that McGee was entitled to damages if

the jury was convinced that he was deprived of

his property without due process of law. See id.

at 735 ("[t]he jury was instructed that McGee

should prevail . . . if he proved . . . [t]hat

the alleged deprivation occurred without due

process of law.") We held that this instruction

was impermissible because it "essentially asked

the jury to decide what process McGee was due in

regards to the alleged deprivation." Id. Jurors

without the benefit of legal education, training

and experience are not expected to be qualified

to interpret a constitutional question dealing

with the precise substantive guarantees of the

Due Process Clause. We stated that "[w]hat

process is due under the Constitution is a legal

question that the judge should resolve. The judge

then should put to the jury any factual questions

relating to the application of that standard. The

jury’s conclusion that McGee did not receive ’due

process of law’ does not inform our analysis of

what process was due." Id.

Certainly, the reasoning of McGee applies to

the facts in the case before us. During the

trial, the McNairs raised a constitutional issue,

alleging an excessive display of force. At the

close of the McNairs’ case, upon proper motion

and with the aid of respective counsel, the trial

judge was obligated to initially inquire whether

the plaintiffs produced any facts sufficient to

allow a jury to determine whether Patrolman

Coffey violated their Fourth Amendment rights.

Before sending the case to the jury, and after

taking into consideration the facts and the law

applicable thereto, the attorneys were obligated

to submit, and the court was likewise obligated

to present the jury with special interrogatories

that would have then allowed the court to: (1)

understand what precisely occurred on December

20, 1997; and (2) determine, in light of those

particular findings and the applicable law,

whether such a violation in fact occurred. See

Rakovich v. Wade, 850 F.2d 1180, 1202 n.15 (7th

Cir. 1987) (en banc); Gros v. Port Washington

Police Dist., 944 F. Supp. 1072, 1084 (E.D.N.Y.

1996) ("[u]nresolved factual questions bearing on

qualified immunity should be decided . . . on

special interrogatories.")

Here, the issue is whether the McNairs proved

at trial that Officer Coffey displayed excessive

force. As previously discussed, after resting

their cases, the parties should have provided the

trial judge with special interrogatories and

requests that the jurors be instructed, prior to

their deliberations, that the parties agreed that

Officer Coffey was the sole patrolman on duty,

seated in his car in the dark of winter around

5:30 p.m., in an area stipulated to as having a

high crime rate, including drug trafficking; and

that Officer Coffey encountered the McNairs among

a group of three other individuals standing on a

street corner near an apartment known to be the

site of illegal drug activity. (Appellants’ Br.

at 6-7; Appellee’s Br. at 1-3.) See 9A Wright &

Miller, Federal Practice & Procedure sec. 2506 at

174-76 (1995) (discussing jury instructions

related to undisputed facts). Then, the specific

questions asked of the jury should have included,

but not necessarily been limited to: "According

to the evidence presented, would a patrolman in

Officer Coffey’s position have reasonably

believed that: (1) the McNairs and this crowd

dispersed shortly after seeing Officer Coffey’s

police vehicle, with some members of the group

retreating towards the apartment?; (2) a third

suspect may have been present in the McNair

vehicle outside Coffey’s field of vision?; (3)

the McNairs should have seen and heard Coffey’s

emergency lights and sirens, yet disregarded

these observations and continued driving for one

mile or more?; (4) the McNairs pulled into a gas

station lot, where customers were present, which

was within walking distance of a residential

neighborhood?; and (5) furthermore, as a result

of their seizure, did the McNairs suffer any

physical injuries while they were detained for

approximately one hour for questioning?" The

jury’s responses then should have served as the

basis for the district judge’s determination of

whether Officer Coffey’s actions were reasonable

as a matter of constitutional law. See Rakovich,

850 F.2d at 1202 n.15; 9A Wright & Miller, supra

sec.sec. 2511-13 at 217-35.

Because of defense counsel’s failure to request,

much less tender any proposed special

interrogatories to the trial judge, the jury was

improperly instructed and ill-informed.

Nevertheless, I cannot agree with the wild-eyed

speculation and supposition offered by

plaintiffs’ counsel that the McNairs must prevail

because the jury necessarily determined that "a

reasonable officer would never have believed the

McNairs were drug dealers or posed any sort of

threat." (Appellants’ Rule 54 Stmt. at 5 n.5.)

Counsel’s argument is misdirected in at least two

respects. First, although counsel sets up a

strawman, i.e., his drug dealer argument, and

proceeds to flail away at it, the dispositive

issue is not whether the McNairs were drug

dealers. Rather, the controlling question is

whether Officer Coffey acted reasonably at the

time, in light of his knowledge,

information,experience, and perceptions of the

seriousness of the totality of the circumstances

confronting him. Saucier, 121 S.Ct. at 2155-56;

Smith v. City of Chicago, 242 F.3d 737, 743-44

(7th Cir. 2001). In addition, as I stated

earlier, the jury’s conclusion that Coffey used

"excessive force" must be supported with specific

evidence offered at trial. To the extent that

undisputed and unimpeached evidence established

material facts showing, as a matter of law, that

Officer Coffey was justified in his belief that

the McNairs posed a risk to himself and to the

community, the uninformed jury’s finding that

Coffey violated the Fourth Amendment, in response

to the inane, sweeping question, "Did Defendant

Sean Coffey use excessive force during the course

of the December 20, 1997 traffic stop of

Plaintiff Victor McNair [and Plaintiff Tre

McNair], which deprived [them] of [their] Fourth

Amendment right[s] to be free from unreasonable

seizure?", is useless and highly prejudicial to

Officer Coffey. See McGee, 956 F.2d at 735-36;

Dual Mfg. & Eng’g v. Burris Indus., 619 F.2d 660,

667 (7th Cir. 1980) (en banc).

C. The Search and Seizure Clause

Turning to the merits, the Fourth Amendment

protects citizens against unreasonable searches

and seizures. Police may seize a person only if

there is probable cause. The power to seize

"necessarily carries with it the right to use

some degree of physical coercion or threat

thereof to effect it," Graham v. Connor, 490 U.S.

386, 396 (1989), and "[f]ollowing Graham, we

analyze all excessive force claims stemming from

an arrest or other seizure by the police under a

Fourth Amendment ’objective reasonableness’

standard." Ellis v. Wynalda, 999 F.2d 243, 246

(7th Cir. 1993).

The Graham analysis focuses on whether the

officer’s actions were objectively reasonable "in

light of the facts and circumstances confronting

[him], without regard to [his] underlying intent

or motivation." Graham, 490 U.S. at 397. We must

place ourselves in the shoes of the patrolman at

the time he made the decision to call for backup

assistance, in light of his knowledge,

experience, and perception of the possibly

volatile situation confronting him. Sherrod v.

Berry, 856 F.2d 802, 804-05 (7th Cir. 1988) (en

banc). We judge the reasonableness of his actions

based upon the information he possessed at the

time, rather than with the 20/20 vision of

hindsight. Id. We balance the amount of

forcedisplayed against the danger posed to the

arresting officer and the community if the

suspect resists or flees. McDonald v. Haskins,

966 F.2d 292, 294 (7th Cir. 1992). Among

therelevant factors to consider are the nature of

the crime for which the suspect is being pursued,

the threat posed to the safety of the officers

and to the community, and whether the suspect is

actively resisting or attempting to evade arrest

by flight. Graham, 490 U.S. at 396; post at 42.

"The calculus of reasonableness must embody

allowance for the fact that police officers are

often forced to make split-second judgments--in

circumstances that are tense, uncertain, and

rapidly evolving--about the amount of force that

is necessary in a particular situation." Graham,

490 U.S. at 396-97. Moreover, "[n]ot every push

or shove, even if it may later seem unnecessary

in the peace of a judge’s chambers, violates the

Fourth Amendment." Id. at 396.

Officer Coffey was the sole law enforcement

officer on the scene. I believe that overwhelming

material evidence, almost none of which is

disputed, established at trial that Coffey--as

any reasonable officer would do in like

circumstances--would have called for backup

assistance at a time when he had reason to

believe the McNairs posed a serious risk to

himself and to the general public. Furthermore,

based on the record before me, it is patently

obvious that Coffey’s decision to call for backup

assistance, which resulted in the display of

force objected to in the arrest of the McNairs,

was eminently reasonable. I review this evidence

to add to the majority’s brief recitation of

facts and to make clear the reasonableness of

Coffey’s actions. I then explain why I conclude,

from my discretionary review of the record, that

Officer Coffey did not violate the McNairs’

Fourth Amendment rights.

1. The McNairs were a risk to

Officer Coffey and the general public

On the night of December 20, 1997, Officer Sean

Coffey had been a law enforcement officer for

approximately 2 years. He was routinely assigned

to the Allied-Dunns Marsh neighborhood in the

community of Fitchburg, Wis., which is neither a

village, town nor city, but, rather, is an

unincorporated area of 18,000 people adjoining

the city of Madison, Wis. Even the McNairs

concede that Coffey correctly perceived that the

area around Rosenberry Road and Thurston Lane in

Fitchburg is an undesirable area, with a crime

rate that is higher than normal, that has been

the site of "armed robberies, burglaries, damage

to property," "person crimes, batteries,

assaults," and "a lot of drug activity." (Tr. 2-

140.) Indeed, in the plaintiffs’ own words,

"[d]rug dealing and other criminal activity is

known to have occurred in the neighborhood."

(Appellants’ Br. at 6.) This troubling situation

occurred between 5 and 5:30 p.m. in the dark of

winter. The streetlights were activated and the

black shadows of night had long past set.

Coffey was parked in an empty parking lot

across the street from the location where he

first sighted the people later identified as the

McNair brothers, Victor and Tre. As he was

looking out onto Thurston Lane, observing the

traffic and keeping tabs on the activity in the

area, he noticed a Mitsubishi Galant vehicle

parked at the curb. Coffey, while seated as the

sole occupant in his squad car, observed at least

five young people standing on the sidewalk,

apparently looking at this automobile. Coffey

decided to investigate the scene and then drove

alongside the people and the automobile. As he

did so, at least two or three individuals

standing on the sidewalk departed the area and

proceeded towards an apartment known to be a site

of illegal drug activity on the corner of

Thurston and Rosenberry. Coffey stated that he

believed he saw the McNair brothers and a third

person enter the Mitsubishi and proceed to drive

off in the opposite direction of the squad car.

Coffey stated that the congregation of people on

a street corner in this crime-prone area of

Fitchburg, accompanied by the almost immediate

dispersal of several men towards the apartment

after they had in all probability sighted his

squad car, made him suspicious as to whether

there was possible illegal drug activity afoot.

(Tr. 2-50, 2-89; Appellee’s Br. at 2-3.)

Coffey decided to pursue the McNair car. He

radioed the Fitchburg police headquarters and

asked the dispatcher for an owner and license

plate I.D., to ascertain whether the legal owner

resided in the immediate area, and if he had any

outstanding warrants or a prior police record. As

the vehicle continued to travel for several

hundred feet along the frontage road towards an

on-ramp for the Madison Beltline expressway,

there was but one vehicle between the Mitsubishi

and Coffey’s police vehicle. The dispatcher

responded and advised that the vehicle belonged

to a Victor McNair and that its state motor

vehicle registration was suspended for unpaid

traffic citations. At this point, after receiving

this information, Coffey had probable cause to

stop the vehicle. See Wis. Stat. sec. 346.04(1).

Once the car made its way to the top of the on-

ramp, and was rapidly approaching the expressway,

Coffey maneuvered his squad car so that he was

immediately behind the McNair vehicle. At this

time, Coffey activated his emergency lights,

hoping to direct the McNairs to pull over, and

also activated the video camera positioned on top

of his police car. The McNairs refused to comply

with the officer’s signal and instead continued

driving for an unspecified distance at about 55

mph, keeping up with the flow of traffic. After

another five or six seconds while the suspects’

refused to obey a lawful command by a police

officer, Coffey turned on his emergency siren.

The traffic was normal, and Officer Coffey was

close enough behind the vehicle to allow him to

form the opinion, based on his knowledge,

experience, and perceptions at the time, that the

McNairs could readily hear his siren and see the

flashing, colored overhead lights. Indeed, as the

videotape of the chase reflects, at least one

vehicle can be observed pulling over to the side

of the road, with its blinkers on, pursuant to

law. Moreover, while on the Beltline, other cars

traveling in the same direction were observed

moving over to the traffic lane furthest from

Officer Coffey’s squad car, thus suggesting that

other vehicles in the immediate area also heard

and saw the police sirens and lights.

Under this escalating and evolving scenario, I

am convinced that Coffey must have been

reasonably concerned for his safety and what lie

ahead of him as he proceeded to make a valid

arrest of a fleeing suspect. Coffey testified

that he thought he saw three people enter the

Mitsubishi when it was parked on Thurston and

Rosenberry, but from his observation of the

occupants of the car during this pursuit, he was

able to observe the silhouettes of only two

individuals. He testified that he believed the

third person might have crouched down below the

rear window vision line, attempting either to

obtain a weapon or possibly secrete drugs or drug

paraphernalia. I believe that Coffey’s fears were

well-founded: the police are trained to assume

that a person who conceals himself from view may

well be doing so to establish an advantage in an

attempt to overpower or ambush an approaching

officer. (Tr. 2-153 to -154.)

The situation with the fleeing suspects

continued to deteriorate, as the McNairs

persisted for almost another mile along the

Beltline highway in their attempted flight from

the officer, despite the squad car’s flashing

lights and blaring sirens directing them to pull

over, before they finally exited onto an off-

ramp. Because the McNairs refused to stop in a

timely fashion, it was reasonable for the officer

to assume that they were fleeing in an attempt to

avoid arrest. In addition, Coffey gave undisputed

testimony that, while an individual apprehended

on the highway is somewhat constrained by

speeding traffic and concrete barriers, a suspect

who pulls over in a residential area is able to

flee on foot much more easily, should he be so

inclined. (Id.) For these reasons, I believe it

is, at best, improper to state, as plaintiffs’

naive counsel does, that Officer Coffey was

effectuating a routine traffic stop and could not

have "reasonably believed the McNairs . . . were

trying to evade or elude him." (Appellants’ Br.

at 20.) As the Supreme Court explained in

California v. Hodari D., 499 U.S. 621 (1991), we

know from "proverbial common sense" that the

ordinary law-abiding citizen yields upon a

policeman’s lawful order to halt. Id. at 623 n.1;

see also Mays v. City of E. St. Louis, 123 F.3d

999, 1003 (7th Cir. 1997) ("if police are

forbidden to pursue, then many more suspects will

flee--and successful flights not only reduce the

number of crimes solved but also create their own

risks for passengers and bystanders.")

After leaving the expressway, the McNair car

proceeded along the frontage road. Since the

operator of the vehicle failed to stop within a

reasonable distance, Coffey radioed his Fitchburg

headquarters and advised that he was switching

over to the Dane County police network to request

additional officer support from other nearby

municipalities. Fitchburg is an unincorporated

area with a very small police force, suffering

from financial problems and insufficient law

enforcement personnel to handle a possibly

dangerous and violent situation of this nature.

There is no evidence in this record to suggest

that Coffey knew how many officers from nearby

municipalities would hear his call for

assistance, much less respond to it. If the

officers were preoccupied on other assigned

police duties within their respective

jurisdictions, or off-call during the relevant

time period, they would not be able to respond to

a request for help. Coffey, who was working

alone, without a partner, radioed for a "10-80"

when the McNairs pulled off the Beltline and

began traveling down the off-ramp. A 10-80 is a

police procedure referred to as a "high-risk

vehicle contact." In other words, it means the

requesting officer believes that he is involved

in a dangerous situation that requires backup

assistance. The record reflects that Coffey has

called for 10-80 assistance only in dire

situations. Indeed, Coffey testified that, while

he has handled hundreds of traffic stops in the

past, he has radioed for 10-80 assistance no more

than four times in his entire career. (Tr. 2-

152.)

The McNair vehicle continued along the frontage

road for several tenths of a mile, approaching a

Citgo gas station soon after Coffey made his

request for backup assistance. Shortly

thereafter, the auto decelerated and signaled the

driver’s intention to turn into the station. The

McNairs entered the station’s small lot, which

was occupied by other vehicles and customers. The

McNairs pulled up adjacent to one of the gas

pumps, immediately adjacent to others pumping

gas. Coffey testified that he pulled in directly

behind the McNair vehicle. There was reason to be

concerned about the safety of the bystanders in

the congested lot and the nearby residential

neighborhood, because if the suspects attempted

to escape, misdirected gun shots might strike

innocent civilians or possibly ignite any

flammable liquids in the vicinity.

I share Officer Coffey’s concerns about police

and public safety. I am convinced that Coffey, on

single assignment without a partner, had more

than sufficient information, knowledge, and

experience (2 years on the force) to be

concerned and believe that the McNairs posed an

immediate threat to his own safety as well as the

general public. To review, from Coffey’s

perspective, the McNairs behaved somewhat

suspiciously on Thurston Lane when they were

first observed mulling around with a crowd of

people in a high-crime area after dark, with a

known drug apartment a mere stone’s throw away;

they exhibited behavior consistent with illegal

drug activity; they were operating a motor

vehicle on a public highway in violation of state

law; they disobeyed lawful directions, thus

requiring the officer to pursue them for over a

mile in his squad car with its emergency lights

on and the siren blasting away; there was

possibly a third passenger hiding somewhere in

the vehicle with them, outside Coffey’s line of

vision; and when the fleeing suspects finally did

pull over, they drove into a crowded gas station

adjoining a residential area, where unsuspecting,

law-abiding customers and homeowners could be

harmed and definitely placed in a lethal

situation if the suspects persisted in their

attempt to flee and violence erupted.

It is important to note that between 1990 and

1999, a total of 6,048 law enforcement officers

were assaulted, and 94 were killed, at the scene

of a traffic stop or during a traffic pursuit.

FBI Uniform Crime Reports, Law Enforcement

Personnel, tbls. 18, 38 (2000). We have

previously stated that proper respect for these

statistics "underscore[s] our reluctance to

second-guess an officer’s split-second judgment"

when faced with potentially explosive situations.

Sherrod, 856 F.2d at 807 n.2 (en banc). In the

same vein, we have described it as "beyond

dispute that drug traffickers are often armed and

dangerous and that they sometimes shoot

policemen." United States v. Ocampo, 890 F.2d

1363, 1369 (7th Cir. 1989). Such precedent,

coupled with the aforementioned facts, justifies

Officer Coffey’s testimony that the McNairs and

another person may have been involved in drug

activity and may very well have been armed and

dangerous. It is irrelevant, of course, that

Coffey’s beliefs ultimately proved to be in

error; the reasonableness of Coffey’s decision to

call for additional backup assistance "must be

judged from the perspective of a reasonable

officer on the scene, rather than with the 20/20

vision of hindsight." Graham, 490 U.S. at 396.

Moreover, even were I to accept Plaintiffs’

argument that the jury concluded that Coffey had

no reason to suspect that the McNairs were

trafficking narcotics, and also discredited

Coffey’s testimony about his belief that a third

individual was hiding in their vehicle, two

crucial undisputed facts remain. First, from his

position alone in the squad car, Coffey saw the

McNairs in the dark of a winter night talking to

a group of people in a high-crime area in the

immediate vicinity of a known drug house. Within

seconds after seeing Coffey in his police

vehicle, the McNairs departed the scene and

several of the remaining bystanders retreated

towards the house. Under these circumstances,

such unprovoked flight upon noticing the police

produces reasonable suspicion that some type of

criminal activity involving the McNairs may have

been afoot. Illinois v. Wardlow, 528 U.S. 119

(2000). Second, the McNairs’ subsequent,

prolonged, and unabated flight in the face of the

existence of probable cause raises alarm in and

of itself. It is of no consequence that the

McNairs claim to have been driving away from

Coffey because they wanted to pull over in a

well-lighted area; Coffey had no way to know the

McNairs’ intentions./9 (Tr. 2-57 to -58.)

Moreover, law-abiding, responsible motorists do

not disregard signals from police vehicles unless

they are trying to avoid apprehension, and,

should they choose to do so, "no right is

guaranteed by federal law that one will be free

from circumstances where he will be endangered by

the misinterpretation of his acts." Sherrod, 856

F.2d at 805 (en banc).

2. Officer Coffey’s display of force was

reasonable

Once the McNairs stopped at the gas station,

Coffey’s personal involvement in the arrest was

limited to: instructing the suspects over the

loudspeaker to place their hands on the roof on

the inside of the car; ordering the nearby

customers pumping gas to clear the immediate

area; and waiting for his backup officers to

arrive at the scene and allow him to place them

under arrest. It is inconceivable to suppose that

such a proper display of lawful authority,

standing alone without even an allegation of the

use of excessive physical force, violates the

Fourth Amendment. See Gumz v. Morrissette, 772

F.2d 1395, 1400-01 (7th Cir. 1985); Holland v.

Harrington, 268 F.3d 1179, 1191 (10th Cir. 2001)

(en banc); see also State v. Richardson, 156

Wis.2d 128 (Wis. 1990). Mindful of these facts

and the applicable case law, and in compliance

with the Supreme Court’s mandate on remand, I

agree and concur with the decision of my

colleagues to set aside the jury verdict,

although I reach this result for separate and

distinct reasons.

I see no merit to the plaintiffs’ legal claim,

based on nothing but speculation and a foundation

of quicksand, that Defendant Coffey violated the

Fourth Amendment by calling for backup help with

the knowledge that his fellow officers’ response

would be unreasonable. Coffey gave undisputed

testimony at trial that he did not request any

specific number of squad cars or officers to

respond to his call for backup assistance. Coffey

also gave the unchallenged testimony that he

neither knew how many officers would respond, nor

how quickly much less whether, in fact, they

would respond at all. Nor did he give any

directions, signals or orders to the officers as

to what actions they should take once they

arrived upon the scene. (Tr. 2-98 to -99; 2-154

to -156.) Admittedly, seven officers driving

separate squad cars responded to Coffey’s 10-80;

four of these officers exited their vehicles and

aimed their loaded weapons at the McNair

brothers. Yet it is apparent that Coffey did not

personally control the acts of other Fitchburg

patrolmen, much less the law enforcement officers

from the outlying areas. Furthermore, the

officers’ collaborative display of firearms

conformed with standard police procedures in all

respects, and the McNairs never have argued that

the procedures themselves authorize an

unreasonable response to an officer’s call for

assistance. Cf. Monell v. New York Dep’t of Soc.

Servs., 436 U.S. 658 (1978); Yang v. Hardin, 37

F.3d 282, 285 (7th Cir. 1994); Byrd v. Brishke,

466 F.2d 6, 10 (7th Cir. 1972).

Finally, even assuming that the actions of the

officers on the scene could be somehow attributed

to Officer Coffey, I am of the opinion that the

combined response of all the officers would still

pass Fourth Amendment muster. We are fighting a

war on drugs at a time when the population is

increasingly desensitized to violence, and

assaults against police officers are frequently

applauded or even encouraged by certain elements

of pop culture. An officer, working alone at

night without a partner, who has probable cause

and encounters what he believes to be three

suspects acting suspiciously and fleeing from the

vicinity of a known drug house, is entitled to

seize the suspects using greater force than is

usually necessary during a routine traffic stop.

At the time of the seizure, none other than the

arresting officer and, perhaps, an officer

assisting, laid a hand upon either of the McNairs

except to take them into custody and eventually

charge Victor McNair with failing to obey an

officer’s sign or signal and driving with a

suspended license. "Where the undue force

underlying an excessive force claim primarily

consists of an abstract demonstration of force

and not its actual use, a justified finding of

liability under sec. 1983 would be most unusual."

Gumz, 772 F.2d at 1401. The McNairs were in

custody for less than an hour at the scene; they

were never conveyed to the station and booked;

and they experienced only momentary fright during

the hour or so following their seizure, along

with some later disgust they attributed to their

subjective belief of having been victimized. They

did not complain at the time of their arrest, nor

did they file a formal complaint with the

department any time thereafter. They testified

that they never sought counseling or visited a

doctor, never missed any work or any jam sessions

with the music group to which they belonged, and

never experienced any subsequent physical or

emotional problems. Indeed, they failed to

produce even one single independent witness to

corroborate their allegations of mental anguish

and emotional distress. Because of the lack of

objective evidence, and for the reasons

previously stated, the jury verdict must be set

aside and this case dismissed. See id. (reversing

jury award in display of force case); see also

Richard v. City of Harahan, 6 F. Supp.2d 565,

573-74 (E.D. La. 1998) (granting summary judgment

when plaintiff "offered no psychological,

medical, or other corroborating evidence to

establish an injury.")

Very recently, the Seventh Circuit sustained a

summary judgment ruling that an officer used

reasonable force in a case that is far more

egregious and troubling than this one. The police

in Smith, 242 F.3d at 744, activated their sirens

and followed a suspect for twelve blocks before

he finally decided to pull over and comply with

the officer’s directions. We reasoned that the

suspect’s actions created the appearance of

flight, thereby "justifying the use of a higher

degree of force to protect the community and the

officers than that needed for someone who

committed only a minor traffic violation." Id.

The police forcibly pulled the man from his

vehicle, pinned his arms behind his back, slammed

him against the hood of the vehicle, and

handcuffed him. We held that the "officers’ use

of force here was not high, let alone excessive"

under the circumstances. Id. Moreover, it was of

no consequence that the man claimed he did not

commit a traffic violation, hear the siren, or

know he was being followed by police (they were

in plainclothes and an unmarked car) because we

assessed the factual situation from the officer’s

point of view at the time of the arrest, not the

suspect’s, as case law mandates./10 See id.

The show of force by Officer Coffey and his

summoned assisting partners in this case pales in

comparison to the force outlined above in Smith,

even though the McNairs potentially posed a far

more serious safety risk to the law enforcement

officials involved--as well as to the general

public. Accordingly, in light of Gumz and Smith,

and for the foregoing reasons, I am convinced

that no rational, properly instructed jury could

have found in the McNairs’ favor on their

constitutional claim. All of Officer Coffey’s

actions were reasonable under the United States

Constitution. Therefore, the district judge

should have dismissed this suit at the outset,

when Coffey first filed for summary judgment.

III. THE OUTER LIMITS OF

THE FOURTH AMENDMENT

Though I agree that this case should be

dismissed, I have reservations about the author

of the majority’s overbroad, categorical

statement that a citizen must be victimized by

"physically abusive governmental conduct" in

order to state a constitutional claim for

damages. Ante at 7. The presence or absence of

physical injuries, of course, is an important

factor in determining whether the police have

acted reasonably. Indeed, in cases like this one,

when the police have probable cause to arrest

suspects who are fleeing from custody and may

possibly be armed and dangerous, a Fourth

Amendment claim raised by victims who have

suffered no physical injuries should be deemed

frivolous. Yet, based on the record and the

question posed by the Supreme Court’s remand, I

see no need to reach an issue that is not before

us, possibly create tension with decisions in

Jones, 214 F.3d 836, and Williams, 1997 WL

264361, and leave the impression that an

excessive display of force, when divorced from

its actual use, can never rise to the level of a

freestanding Fourth Amendment violation.

Accordingly, I must dissent from the majority’s

opinion to the contrary.

In Gumz, 772 F.2d at 1401, we expressly

declined to hold that "some type of bodily injury

is an absolute requirement to sec. 1983 liability

based on an excessive force claim." Indeed, our

own precedents suggest that there may arise

exceptional circumstances that could conceivably

produce a successful Fourth Amendment claim

absent any use of force. For example, the

majority in Jones opined that a suspect would

have had "a serious" likelihood of success in a

Fourth Amendment damages claim when the police,

after complying with the knock-and-announce rule,

took a battering ram to the suspect’s front door

and temporarily stunned the suspect by detonating

a flash-bang device in the room where the suspect

was standing and a child may have been

present./11 Jones, 214 F.3d at 837-38 ("[i]f

this were a damages action seeking compensation

for injury to the occupants or the door, the

claim would be a serious one.") Id. at 838. It

made no difference to the majority that a flash-

bang inflicts no physical injuries and is only

"a-non-lethal device that produces a flash and a

gunshot-type noise that stuns and disorients for

about six to eight seconds." Id. at 840 n.4

(Coffey, J., concurring in judgment and

dissenting in part). Similarly, in Williams, 1997

WL 264361 at *7, the district court denied a

motion for qualified immunity when the record

recounted that an officer held a gun to the head

of an arrestee and threatened to "’blow his

brains out’ if he caused trouble," even though

the man was unarmed, handcuffed, and cooperative

at the time. The arrestee had been taken into

custody in Georgia; the officer was transporting

the man to Illinois and became unreasonably

angered and took unacceptable action when the man

stated that he had neither received an

extradition hearing nor waived his right to the

same. Id. at *1.

Wilkins v. May, 872 F.2d 190 (7th Cir. 1989),

which is cited in the majority opinion for the

proposition that "a simple display of force . .

. does not violate the Fourth Amendment," ante at

6, relies on outdated case law and is arguably

inapposite. Wilkins cites a series of Fifth

Circuit cases suggesting that physical injuries

are required when the allegedly excessive force

occurs during an otherwise proper arrest. Id. at

193-94. These cases, however, were decided under

the pre-Graham "shocks the conscience" standard,

which we have noted "constitutes an even higher

burden for plaintiffs than the objective

reasonableness test." McDonald, 966 F.2d at 294.

More recent Fifth Circuit authority has limited

the cases cited by Wilkins, recognizing that a

citizen can possibly succeed on a Fourth

Amendment claim, even when he or she suffered no

physical injuries and was seized on probable

cause. Petta v. Rivera, 143 F.3d 895, 907-09 (5th

Cir. 1998); Richard, 6 F. Supp.2d at 573-74. And,

in any event, our holding in Wilkins was that the

Fourth Amendment does not apply to claims of

police abuse occurring during the time frame

transpiring between a suspect’s arrest and

conviction. See Brokaw v. Mercer County, 235 F.3d

1000, 1018 n.14 (7th Cir. 2000); Reed v. City of

Chicago, 77 F.3d 1049, 1052 (7th Cir. 1996).

Graham’s totality-of-the-circumstances inquiry

accounts for the fact that officers frequently

are called upon to make split-second decisions,

and are entitled to draw their weapons in a

manner reasonably calculated to protect their own

safety and the safety of the general public, when

called upon, in order that they might carry out

their lawful duties in a proper manner. We must

take into consideration the officer’s knowledge,

experience, and understanding of the law,

analyzing the officer’s actions in light of all

relevant factors, including but not limited to:

the seriousness of the crime and the existence of

probable cause; the officer’s knowledge of the

suspect’s police record and previous behavior

upon encountering the police; the presence

ofresistance or flight; the age of the suspect

(child or adult); the appearance of the officer

(undercover, in assault gear, or standard

uniform); the time of day and place of the

arrest; the manner in which the weapons were

displayed; the use of verbal threats or

profanity; and the presence and number of

suspects or bystanders. See, for example,

McDonald, 966 F.2d at 294-95; Gumz, 772 F.2d at

1397-98; Williams, 1997 WL 264361 at *6-7;

Holland, 268 F.3d at 1192-95; Sharrar v. Felsing,

128 F.3d 810, 821-22 (3d Cir. 1997); and Black v.

Stephens, 662 F.2d 181, 188 (3d Cir. 1981)--all

of which have applied these factors in cases

involving allegations of an excessive display of

force.

To support its argument that there can be no

Fourth Amendment violation without the use of

physical force, the majority’s author cites to

decisions interpreting FELA and the Bankruptcy

Code. Ante at 6-7. I fail to understand the

relevancy of these decisions, advanced without

any elaboration by the majority, for these

statutes are intended to guard against entirely

separate and distinct evils than does the Fourth

Amendment, and thus are far removed from our

Fourth Amendment analysis or discussion. FELA’s

central purpose is to protect workers "from

physical invasions or menaces," Conrail Corp. v.

Gottshall, 512 U.S. 532, 556 (1994), and the

Bankruptcy Code’s protection "is financial in

character; it is not protection of peace of

mind," Aiello v. Providian Fin. Corp., 239 F.3d

876, 879 (7th Cir. 2001). By comparison, "[t]he

overriding function of the Fourth Amendment is to

protect personal privacy and dignity against

unwarranted intrusion by the State." Schmerber v.

California, 384 U.S. 757, 767 (1966); see also

Holland, 268 F.3d at 1179 ("the interests

protected by the Fourth Amendment" include "a

person’s ’sense of security’ and individual

dignity.")

When Officer Coffey attempted to arrest the

McNairs, and they were foolishly attempting to

flee from him in the dark of night, the

responding officers had grounds to establish

probable cause and to seize the McNairs using

whatever reasonable means were necessary.

However, I am reluctant to agree with the author

of the majority opinion, in the absence of

additional facts and without the benefit of

briefing and oral argument by the parties, that

the immediate risk of serious injury or death due

to the slip of a finger, a stumble, or some other

mishap can be cavalierly disregarded. See, e.g.,

Jones, 214 F.3d at 837-38; Williams, 1997 WL

264361 at *7.

At the same time, I am troubled with and, thus,

cannot accept the full implications of Judge

Cudahy’s statement that there is "no distinction,

as a matter of principle, between the use of

force and its display, provided that the suspect

submits." Ante at 9. Nor do I agree with his re

lated argument that a suspect’s subjective

reaction to an officer’s display of force is

probative evidence that an officer behaved in an

objectively unreasonable manner. Although Judge

Cudahy believes that "[t]he mental state of the

terrorized is at least one measure of the

objective reasonableness of the terror applied,"

id. at 8, plaintiffs can all too easily fabricate

claims of mental anguish and emotional trauma,

and I am of the opinion that a suspect

cannotestablish constitutional injury if he is

unable to corroborate his self-serving

allegations with objective evidence, such as

medical testimony or outward manifestations of

harm. See Richard, 6 F. Supp.2d at 573-74.

IV. CONCLUSION

I conclude that it may be possible (yet

unlikely) for an excessive display of force in

the modern era to violate the Fourth Amendment.

Accordingly, I respectfully dissent from those

portions of the majority opinion that would

extinguish the possibility of a Fourth Amendment

claim based on injuries resulting from an

unreasonable show of force. However, I concur

with the majority’s decision to set aside the

jury verdict and affirm the district court’s

dismissal of this case. Because Officer Sean

Coffey acted reasonably and within the framework

of the Constitution, this case should be

dismissed as a matter of law for a failure of

proof.

As a final matter, I note that Officer Coffey

is entitled to recover his appellate costs, as

well as his costs before the district court, as

the prevailing party in this lawsuit. When the

trial judge calculated Coffey’s costs prior to

McNair I, they totaled a modest $1,508.11; I

assume he has incurred additional expenses over

the thirteen months since that decision was

rendered. In the same vein, I point out that the

district court’s order awarding sec. 1988

attorney’s fees of $103,292.34 to Plaintiffs

following McNair I--an inflated sum representing

more than ten times the amount won by Plaintiffs

at trial--must be vacated.

FOOTNOTES

/1 I wish to make clear that I neither know nor am

I acquainted with or related to Appellee Sean

Coffey.

/2 In the section of their brief titled "Victor R.

McNair Was Not Deprived Of His Fourth Amendment

Rights," Coffey’s attorneys argued, "We believe

Officer Coffey’s response to the situation

presented to him by the plaintiffs was

objectively reasonable as a matter of law, both

under the Fourth Amendment and as prudent police

work." (Doc. No. 34 at 6, 9.) The motion was

denied.

/3 Coffey’s attorney raised an oral motion for

directed verdict at the close of the plaintiffs’

case, stating, "Your Honor, now that the

plaintiffs have rested their case, we believe

that there is no legally sufficient evidentiary

basis for a reasonable jury to find for the

plaintiffs on the issue of reasonableness of

Officer Coffey’s actions. No excessive force has

been proved by the plaintiffs, and under the

controlling law, we believe the plaintiffs’

excessive force claims cannot be maintained and,

therefore, need to be dismissed." (Doc. No. 98

Ex. A at 2 (Tr. 2.)) The motion was denied.

/4 Prior to the conference on jury instructions,

Coffey’s attorney notified the court, "I renew my

Rule 50 motion that now that the entire case has

been heard, we’re entitled to a judgment of

dismissal as a matter of law." (Id. Ex. B at 5

(Tr. 5.)) The motion was denied.

/5 In a post-trial Rule 59(e) motion, Coffey’s

attorneys sought to alter or amend the verdict on

the basis of qualified immunity. They argued

that, "as shown by Officer Coffey’s training and

by court precedents, a reasonable police officer

could well have believed the force he used

against the plaintiffs was constitutional." (Doc.

No. 93 at 10.) The court granted the motion,

finding that "a reasonable police officer could

have believed that the high risk procedure

Defendant Officer Coffey used was lawful based on

the law on December 20, 1997 when force was used

in this case." (Doc. No. 103 at 6.)

/6 The majority seems to be of the opinion that an

excessive display of force "could have

consequences under the Fourth Amendment" only if,

for example, "a suspect’s consent to search were

prompted by fear that the officers would react

violently to a refusal," or if "edgy officers

opened fire." Ante at 7.

/7 Various affidavits and depositions were presented

to the district court at summary judgment,

demonstrating the absence of any genuine issue of

material fact for trial. I discuss these relevant

facts throughout my opinion. They are cited in

Defendant’s Second Proposed Findings of Fact

paras. 6-15, 18-33, 35-60, 64-66, 68-78 and

107-09, which were not the subject of any

objection by Plaintiffs, and those portions of

id. paras. 61-63, 67, 79, which were not the

subject of legitimate objection by Plaintiffs.

See also the depositions and affidavits cited in

Plaintiffs’ Proposed Additional Findings Of Fact

paras. 22, 25-27, 31, 33-42, 44-45.

/8 My concurring colleague states in his opinion

that he is "none too sure what Saucier requires

here . . . ". Ante at 8.

I believe that, although Coffey’s Rule 59(e)

motion does not argue that the jury verdict was

based on legally insufficient evidence, we may

still consider the purely legal question of

whether Coffey violated the Fourth Amendment. We

are vested with discretion to review the record

in its entirety and address the district court’s

ruling on any ground fairly supported therein.

See Bakalis v. Golembeski, 35 F.3d 318, 321-22

(7th Cir. 1994) (invoking court’s discretionary

power of review in qualified immunity case);

Shields v. Burge, 874 F.2d 1201, 1210 n.2 (7th

Cir. 1989) (same; granting immunity on grounds

raised in district court but not on appeal).

Furthermore, as pointed out above, I believe

that the Supreme Court mandated that we consider

whether the McNairs proved a constitutional

violation, in light of the relevant law applied

to the circumstances of this case. See Saucier,

121 S.Ct. at 2155-56 ("A court required to rule

upon the qualified immunity issue must consider,

then, this threshold question: Taken in the light

most favorable to the party asserting the injury,

do the facts alleged show the officer’s conduct

violated a constitutional right? This must be the

initial inquiry. . . . If no constitutional right

would have been violated were the allegations

established, there is no necessity for further

inquiries concerning qualified immunity.")

/9 The record reflects that the McNairs less than

credibly claimed to have been comfortable

visiting the dangerous, high-crime Allied-Dunns

Marsh neighborhood for social purposes

immediately prior to their arrest, yet fled the

scene because they feared encountering a police

officer in full uniform, occupying a clearly

designated police squad car in the same vicinity,

who was entrusted with ensuring their safety.

(Appellants’ Br. at 8-9.)

/10 Smith was decided on March 6, 2001, which was

long after the night of the McNairs’ arrest on

December 20, 1997. However, at no point in their

Circuit Rule 54 statement--which was filed on

August 15, 2001 (after the Smith decision)--do

the McNairs argue that Smith is inconsistent with

any of our decisions rendered prior to December

20, 1997.

/11 Jones, a drug dealer, sought to suppress marijua-

na, cocaine, and drug paraphernalia obtained

after the police executed a search warrant of his

home. Three or four officers barged into the

house after breaking down an unlocked door with

a battering ram and setting off a flash-bang

device that distracted Jones and left him tempo-

rarily stunned or disoriented. 214 F.3d at 837-

38. Because the police were lawfully on the

premises, having served a valid search warrant,

we denied the motion to suppress, reasoning that

the evidence would inevitably have been discov-

ered, despite the majority’s agreement with "the

strength of the contention that the officers

behaved inappropriately." Id. at 838.