Payne, Barbara v. Pauley, Michael

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-2674

BARBARA PAYNE,

Plaintiff-Appellant,

v.

MICHAEL PAULEY,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 00 CV 3266—Charles R. Norgle, Sr., Judge.

____________

ARGUED APRIL 4, 2003—DECIDED JULY 9, 2003

____________

Before POSNER, EASTERBROOK, and ROVNER, Circuit

Judges.

ROVNER, Circuit Judge. Upon learning that her fifteen-

year-old son had crashed a truck into a house, Barbara

Payne rushed to the scene of the accident. There she en-

countered Chicago Heights Police Officer, Michael Pauley.

Both parties dispute what happened in the ensuing forty-

five minutes, but at the end of the day, Payne had been ar-

rested, handcuffed, and driven to the Chicago Heights police

station. Payne alleges that Pauley violated 42 U.S.C. § 1983

by arresting her without probable cause and by using

excessive force in carrying out her arrest. On Pauley’s

motion for summary judgment, the district court deter-

mined that, even construing the facts in the light most fa-

vorable to Payne, Officer Pauley had probable cause to ar-

2 No. 02-2674

rest Payne and used reasonable force in doing so. We do not

believe, however, that the district court properly viewed the

facts in the light most favorable to the nonmoving party,

Payne, and consequently, we reverse the judgment of the

district court.

I.

On May 31, 1998, Kyle Payne drove his uncle’s truck into

a house in Chicago Heights. Officer Pauley was the first

police officer to arrive on the scene of the accident. He de-

termined that Kyle Payne was fifteen years old and unli-

cenced and consequently, he arrested him. By this time a

crowd of between twenty and forty people had gathered in

the yard of the house that had been hit by the vehicle.

Shortly thereafter, a young man went to Barbara Payne’s

house, a half of a block away, and informed her that her son

had been in an accident. Barbara Payne rode her bicycle to

the scene of the accident. Eventually Payne was arrested,

handcuffed, placed in a police car, and taken to the Chicago

Heights police station where she was released a few hours

later when a relative paid her bail. She later sought treat-

ment for injuries she claimed she sustained during the ar-

rest. Thus end the facts on which both parties agree. The

majority of the dispute surrounds the events that occurred

between the time Payne arrived on the scene of her son’s

accident and the time she was placed in the police car.

Before we can recite the remaining facts of the case, we

must pause to make a legal determination regarding whose

version of the facts we will credit. Payne recites the famil-

iar language of summary judgment and asks us to view the

facts and make all reasonable inferences that flow from

them in the light most favorable to her, the party opposing

summary judgment. Ziliak v. AstraZeneca LP, 324 F.3d 518,

520 (7th Cir. 2003). Officer Pauley, on the other hand,

charts an unusual course for summary judgment. He be-

No. 02-2674 3

gins his statement of facts with the surprising admission

that “[t]here are clearly two stories in the present case,”

and then proceeds to tell his version of the facts. This ad-

mission arouses attention because under the Federal Rules

of Civil Procedure, a judge may grant summary judgment

for a moving party only where there are no genuine issues

of material fact in dispute and the moving party is entitled

to judgment as a matter of law. Fed. R. Civ. P. 56(c); Ziliak,

324 F.3d at 520. Where the parties present two vastly

different stories—as they do here—it is almost certain that

there are genuine issues of material fact in dispute.

On summary judgment a court may not make credibility

determinations, weigh the evidence, or decide which infer-

ences to draw from the facts; these are jobs for a factfinder.

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

Betaco, Inc. v. Cessna Aircraft Co., 32 F.3d 1126, 1138 (7th

Cir. 1994); Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035,

1041 (7th Cir. 1993). Rather, “[t]he court has one task and

one task only: to decide, based on the evidence of record,

whether there is any material dispute of fact that requires

a trial.” Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920

(7th Cir. 1994). Summary judgment is not appropriate “if

the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson, 477 U.S. at

248. We must look therefore at the evidence as a jury

might, construing the record in the light most favorable to

the nonmovant and avoiding the temptation to decide which

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

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

we have said many times, summary judgment cannot be

used to resolve swearing contests between litigants. Weeks

v. Samsung Heavy Indus., 126 F.3d 926, 933 (7th Cir.

1997); Giannopoulos v. Brach & Brock Confections, Inc., 109

F.3d 406, 410 (7th Cir. 1997); Wohl v. Spectrum Mfg., 94

F.3d 353, 358 (7th Cir. 1996); Jackson v. Duckworth, 955

F.2d 21, 22 (7th Cir. 1992). With these principles in mind,

4 No. 02-2674

we review the district court’s grant of summary judgment

de novo. Ziliak, 324 F.3d at 520.

Officer Pauley asks the court to credit his version of the

facts over Payne’s for two reasons. First, he claims that

Payne’s self-serving deposition testimony is without evi-

dentiary support and insufficient to preclude summary

judgment. Second, he asserts that her version of the facts

is simply implausible and therefore she must come forward

with more persuasive evidence to support her claim. At its

core, Pauley’s argument that Payne’s deposition testimony

is insufficient to defeat summary judgment is simply an-

other way of saying that her testimony is not credible.

Pauley is leading us into dangerous territory, and we have

warned before of falling for the trap of weighing conflicting

evidence during a summary judgment proceeding. See In re

High Fructose Corn Syrup Antitrust Litig., 295 F.3d 651,

655 (7th Cir. 2002), cert. denied 123 S. Ct. 1251, 1253, 1254

(2003). Of course Payne makes our task of suspending cred-

ibility determinations difficult by lodging some fairly out-

rageous accusations, including a claim that Officer Pauley

broke her wrist and that three officers struggled over her

arm for thirty minutes during the arrest. The former alleg-

ation she recants (see fn. 1, infra), and the latter is belied

by the dispatch records which indicate that two of the ar-

resting officers were on the scene for no more than seven

minutes. See fn. 2, infra. Despite the difficulty, we will be

true to our task on summary judgment and leave the credi-

bility determinations for the factfinder below.

As for the legitimacy of Payne’s deposition testimony as

evidence, a party opposing summary judgment may not rest

on the pleadings, but must affirmatively demonstrate that

there is a genuine issue of material fact for trial. Celotex

Corp. v. Catrett, 477 U.S. 317, 324 (1986). Payne sought to

demonstrate that there was a genuine issue of material fact

for trial by submitting excerpts from her deposition and

No. 02-2674 5

that of a witness to the events, Rasheedah Gray. There is

certainly nothing wrong with Payne’s deposition testimony

on its face. The summary judgment rule itself contemplates

that parties may submit deposition testimony as evidence

for purposes of determining whether a genuine issue of

material fact exists. See Fed. R. Civ. P. 56(c) (“The judg-

ment sought shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the mov-

ing party is entitled to judgment as a matter of law”) (em-

phasis supplied). See also Winskunas v. Birnbaum, 23 F.3d

1264, 1267 (7th Cir. 1994) (to ward off the grant of a sum-

mary judgment motion, the plaintiff can present deposition

testimony demonstrating the existence of a genuine issue

of material fact). We have routinely found that a nonmoving

party’s own affidavit can constitute affirmative evidence to

defeat a summary judgment motion. Wohl, 94 F.3d at 358;

Courtney v. Biosound, Inc. 42 F.3d 414, 418 (7th Cir. 1994);

Sarsha, 3 F.3d at 1041; Wilson v. Williams, 997 F.2d 348,

351 (7th Cir. 1993); Jackson, 955 F.2d at 22.

There is nothing inherently more self-serving about

Payne’s deposition and that of her witness than Pauley’s af-

fidavit and those of his police officer witnesses. In any case,

Payne “need not match [Pauley] witness for witness” or affi-

davit for affidavit, nor must she “persuade the court that

her case is convincing, she need only come forward with

appropriate evidence demonstrating that there is a pending

dispute of material fact.” Waldridge, 24 F.3d at 921.

The defendant points to a number of cases from this Cir-

cuit for the proposition that self-serving, uncorroborated,

and conclusory statements in testimony are insufficient to

defeat a motion for summary judgment. (Response Brief of

Defendant-Appellant at 15) (citing Weeks, 126 F.3d at 939;

Cowan v. Glenbrook Sec. Servs., Inc., 123 F.3d 438, 446 (7th

6 No. 02-2674

Cir. 1997); Filippo v. N. Ind. Pub. Serv. Corp., 141 F.3d 744,

749 (7th Cir. 1998); Edward E. Gillen Co. v. City of Lake

Forest, 3 F.3d 192, 196 (7th Cir. 1993)). It is not the self-

serving nature of the affidavits, however, that sealed their

fate in these cases. After all, most affidavits submitted for

these purposes are self-serving. Instead, these affidavits

fail to thwart summary judgment because they are not

based on personal knowledge as required by both the Fed-

eral Rule of Civil Procedure on summary judgment, Rule

56(e) (“[s]upporting and opposing affidavits shall be made

on personal knowledge”), and by Federal Rule of Evidence

602 (“A witness may not testify to a matter unless evidence

is introduced sufficient to support a finding that the wit-

ness has personal knowledge of the matter.”). Furthermore,

although personal knowledge may include reasonable infer-

ences, those inferences must be “grounded in observation or

other first-hand personal experience. They must not be

flights of fancy, speculations, hunches, intuitions, or ru-

mors about matters remote from that experience.” Visser v.

Packer Eng’g Assoc., 924 F.2d 655, 659 (7th Cir. 1991) (en

banc).

In the cases that the defendant cites—and in many em-

ployment discrimination cases for that matter—the plaintiff

unsuccessfully attempts to thwart summary judgment by

speculating as to the defendant/employer’s state of mind.

See Filippo, 141 F.3d at 750 (employee’s speculation that

union retaliated against her for running for local union

president not sufficient to create genuine issue of material

fact to defeat summary judgment motion); Cowan, 123 F.3d

at 444 (perpetually tardy employee could not defeat motion

for summary judgment with mere inference that termina-

tion was due to racial animus rather than record of tardi-

ness); Weeks, 126 F.3d at 939 (employee’s assumption that

he would have lifelong employment could not defeat sum-

mary judgment where employment agreement and subse-

quent documents made clear that he was an at-will em-

No. 02-2674 7

ployee). See also Mills v. First Fed. Sav. & Loan Assoc. of

Belvidere, 83 F.3d 833, 841-42 (7th Cir. 1996) (employee’s

subjective belief that she was terminated due to her age

could not defeat summary judgment motion of employer

who had concrete record of employee’s poor work perfor-

mance); Cliff v. Bd. of Sch. Comm’rs of Indianapolis, 42

F.3d 403, 412 (7th Cir. 1994) (terminated employee’s

conclusory assertions of race, age, and sex discrimination

could not defeat motion for summary judgment where

employer submitted numerous unsatisfactory perform-

ance evaluations).

In the other case cited by the defendants, Edward E.

Gillen Co., 3 F.3d at 192, the court was not faced with duel-

ing affidavits or depositions as we are, but rather with the

question of waiver. In Edward E. Gillen, the district court

concluded that a construction company had conceded that

all of its damages were delay damages by failing to clearly

argue otherwise in its briefs. Id. at 195. On appeal the con-

struction company attempted to demonstrate that it had

preserved its claim by pointing to an affidavit that made

the conclusory claim—without identifying any specific in-

stances of damages—that some of its damages were unre-

lated to delay. Id. at 196. This claim failed, not because the

affidavit was self-serving, but because the Federal Rules of

Civil procedure require the nonmoving party to “set forth

specific facts showing that there is a genuine issue for

trial.” Fed. R. Civ. P. 56(e). Conclusory allegations, unsup-

ported by specific facts, will not suffice. See Lujan v. Nat’l

Wildlife Fed’n, 497 U.S. 871, 888 (1990). In addition to

lacking personal knowledge, the Weeks and Fillipo affida-

vits failed on the Rule 56(e) specificity requirement as well.

Weeks’ testimony failed to set forth any specific represen-

tations made by his employer from which a promise of

lifetime employment could be inferred, and instead he

referred only to the general idea that Asian tradition

embraces lifetime employment. Weeks, 126 F.3d at 939.

Fillipo claimed that her union refused to represent her

8 No. 02-2674

in her grievances, but she failed to allege with any specific-

ity that she actually filed the necessary form to initiate

union representation. Filippo, 141 F.3d at 749.

In this case in contrast, Payne’s account is not based on

speculation, intuition, or rumor. She has submitted a very

detailed factual account of the incident based upon her first-

hand experience with Officer Pauley. Those facts conflict

with the facts presented by Officer Pauley. Where the

material facts specifically averred by one party contradict

the facts averred by a party moving for summary judgment,

the motion must be denied. Lujan, 497 U.S. at 888.

Pauley also asserts that, because the factual context

renders Payne’s claims implausible, she must come forward

with more persuasive evidence to support her claim than

would otherwise be necessary. See McDonnell v. Cournia,

990 F.2d 963, 967 (7th Cir. 1993). There is nothing inher-

ently implausible, however, in Payne’s account. It may be

less credible, perhaps, than Officer Pauley’s claims, but as

we discuss at length above, issues of credibility cannot be

resolved at the summary judgment stage. Payne’s claims

are not so incredible or implausible that a reasonable jury

could not find in her favor.

We hope this discussion lays to rest the misconception

that evidence presented in a “self-serving” affidavit is never

sufficient to thwart a summary judgment motion. Provided

that the evidence meets the usual requirements for evi-

dence presented on summary judgment—including the

requirements that it be based on personal knowledge and

that it set forth specific facts showing that there is a

genuine issue for trial—a self-serving affidavit is an ac-

ceptable method for a non-moving party to present evi-

dence of disputed material facts.

In sum, in reviewing a motion for summary judgment

where each party’s testimony relays a different version of

the facts, we must view those facts in the light most favor-

able to the party opposing the motion. As a result, we will

No. 02-2674 9

fill in the remainder of the relevant story with Payne’s ver-

sion of the facts, although we emphasize that in doing so,

we do not vouch for their truth. See Herzog v. Village of

Winnetka, 309 F.3d 1041, 1044-45 (7th Cir. 2002):1

When Payne arrived at the scene of the accident, she saw

her son walking around in a circle, dazed and disoriented.

A crowd of twenty-five to forty onlookers had gathered

around the scene and appeared to Payne to be angry with

Officer Pauley. Payne waited with her son Kyle next to

Pauley’s squad car. When he returned to the squad car,

Pauley arrested Kyle, placed him in handcuffs, and put him

in the back of the police car. Payne had no further contact

with her son. After receiving permission from Officer

Pauley, Payne retrieved her insurance information from the

car and gave the information to the owner of the damaged

property. It was at this point that the yelling began. Boiled

1

We note that Payne’s version of the facts has morphed through

the course of litigation and is cast slightly differently in the Plain-

tiffs’ Memorandum of Law in Response to Defendants’ Motion for

Summary Judgment, in the Plaintiff ’s Local Rule 56.1(b)(3)(B)

Statement of Additional Facts That Require the Denial of Sum-

mary Judgment, and the Statement of Facts in Payne’s brief on

appeal. Since we are reviewing the district court’s grant of sum-

mary judgment, we will view the facts as they were presented to

the district court. For the most part, the various versions merely

emphasize different aspects of the events and do not contradict

each other, with one notable exception. In her Complaint, the

plaintiff claimed to have suffered a fractured wrist as a result of

the arrest. In her Local Rule 56.1(b)(3)(A) Response to the Defen-

dant’s Statement of Facts, the plaintiff admitted that she never,

in fact, fractured her wrist. Plaintiff ’s Local Rule 56.1(b)(3)(A) Re-

sponse to the Defendant’s Statement of Facts at ¶24. Payne is ad-

monished that, although for purposes of summary judgment we

are viewing the facts in the light most favorable to her, if she is

later found to have willfully misrepresented those facts, she will

be heavily sanctioned.

10 No. 02-2674

down to the relevant facts, Payne claims that Officer

Pauley lost his temper on three separate occasions during

his time on the scene. During the first episode, Officer

Pauley began to badger her while she went to retrieve the

insurance information to give to the property owner and

subsequently became irate and began yelling and scream-

ing at her. His next eruption occurred when Payne, after

seeking Officer Pauley’s permission, unsuccessfully at-

tempted to remove the truck from the bushes in front of the

damaged house. According to Payne, she abandoned her

attempt immediately upon discovering that the truck would

not move off of the hedges and her actions caused no fur-

ther damage to the property. Nevertheless, she claims that

Pauley’s torrent of abusive language, cursing, and racially

derogatory comments swelled. During this time, Payne

maintains that she did not argue back, did not swear, and

did not raise her voice. She merely told Officer Pauley that

his comments about African Americans were not true. At

some point after she emerged from the truck, Pauley ran to-

ward her and, by “hitting” his chest and stomach against

her body, caused her to stumble backwards. Then, Pauley

unsnapped his holster and held his balled fists over his

head as if preparing to strike Payne. The crowd grew more

hostile, yelling “hit her, hit her. If you hit her, you know

you are going down.” Pauley did not hit Payne with his

fists, but announced to her that she was going to be ar-

rested, to which Payne responded that she had no intention

of running away. Pauley continued his barrage of deroga-

tory statements. Payne merely turned her head.

At this point, two more police officers arrived on the

scene. For approximately half an hour, Pauley and the as-

sisting officers grappled over Payne’s arm.2 According to

2

According to police dispatch records submitted by the defendant

on summary judgment, the assisting officers were on the scene

(continued...)

No. 02-2674 11

Payne, the struggle occurred not because she was resisting

the arrest, but because the officers were arguing over who

would handcuff her. Eventually Pauley grabbed her left

arm, jerked it into handcuffing position, forced her arm be-

hind her back, slammed the handcuff down on her wrist,

jerked her wrist, and tightened the handcuffs until Payne

could not feel her hands. Payne protested that the hand-

cuffs were too tight, that she could not feel her hands, and

that she was in pain, but the police officers did not loosen

the handcuffs or remove them until she arrived at the po-

lice station. An officer at the police station filled out a phys-

ical examination form and noted that Payne complained

that her left wrist and fingers were hurting and going

numb.3

2

(...continued)

for no more than six or seven minutes. Nevertheless, a jury is en-

titled to believe Payne’s testimony over the dispatch records. We

leave this issue of credibility to the jury.

3

Of course Officer Pauley’s story differs significantly. In his

version he never hollered at Payne, never badgered her, swore at

her, used derogatory language or hit or bumped her in any man-

ner, never unsnapped his holster, never raised his fists or threat-

ened to hit her, and did not yank her arm or otherwise treat

Payne roughly while arresting her. Instead he claims that Payne

screamed obscenities at him, disobeyed his orders to stay away

from the squad car, and disobeyed his orders to stop trying to

move the vehicle from the damaged property. He also claims that

she incited the crowd and resisted arrest. As we have already con-

cluded, we cannot choose the version of the story that seems more

logical based on the pleadings and testimony before us. It is the

task of the district court judge, and ours reviewing the motion de

novo, to give Payne the benefit of the doubt. We have ignored cer-

tain facts from Payne’s various iterations either because they are

not relevant to the determination of the summary judgment mo-

tion or because the evidence is not admissible. Evidence presented

to defeat a summary judgment motion need not be in admissible

(continued...)

12 No. 02-2674

Upon release, Payne sought treatment at a local emer-

gency room where she was diagnosed with mild swelling

and bruising, and later received treatment from various

physicians for injuries resulting from the force used during

her arrest. Payne underwent two surgical procedures to

treat carpal tunnel injuries which she claims she sustained

during the arrest. As of February 8, 2002, she was still un-

able to work due to her injuries.

After the arrest, Pauley signed a criminal complaint in

which he averred that Payne knowingly obstructed his per-

formance as a police officer. The complaint claimed that he

asked Payne to move away from the car so that the tow

truck could pull it from the house, but she refused.

II.

Payne maintains that Officer Pauley violated her Fourth

Amendment rights by arresting her without probable cause

and by using excessive force in effectuating the arrest. Of-

ficer Pauley counters that he had probable cause to arrest

Payne for obstructing a police officer or for disorderly con-

duct, and that he did not use excessive force in arresting

her. Pauley argues, in the alternative, that even if he did

not have probable cause to arrest Payne, as a government

official performing discretionary functions, he was entitled

3

(...continued)

form, but it must be admissible in content. Stinnett v. Iron Works

Gym/Executive Health Spa, Inc., 301 F.3d 610, 613 (7th Cir.

2002). Consequently, Payne’s attempts to describe the subjective

feelings or motivations of Officer Pauley cannot be credited. See

Friedel v. City of Madison, 832 F.2d 965, 970 (7th Cir. 1987)

(plaintiffs statements regarding what they “felt to be the case” not

admissible evidence in opposition to motion for summary judg-

ment).

No. 02-2674 13

to qualified immunity on both the arrest claim and the ex-

cessive force claim.

To determine whether Officer Pauley is entitled to quali-

fied immunity, we must first ask whether the facts alleged,

taken in the light most favorable to Payne, show that Of-

ficer Pauley violated a constitutional right. Saucier v. Katz,

533 U.S. 194, 201 (2001); Beauchamp v. City of Noblesville,

320 F.3d 733, 742 (7th Cir. 2003). If so, we must then ask

whether the right was clearly established at the time of the

alleged injury. Saucier, 533 U.S. at 201; Finsel v.

Cruppenink, 326 F.3d 903, 906 (7th Cir. 2003). The relevant

inquiry in determining whether a right is clearly estab-

lished is whether it would be clear to a reasonable officer

that his conduct was unlawful in the situation the officer

confronted. Saucier, 533 U.S. at 202. We will evaluate each

of Payne’s claims using this two-step process, bearing in

mind that the doctrine of qualified immunity leaves “ample

room for mistaken judgments” by police officers. Malley v.

Briggs, 475 U.S. 335, 343 (1986).

We begin with Payne’s claim that Officer Pauley lacked

probable cause to arrest her and therefore violated her

Fourth Amendment rights. In order to have probable cause

for an arrest, law enforcement agents must reasonably be-

lieve, in light of the facts and circumstances within their

knowledge at the time of the arrest, that the suspect had

committed or was committing an offense. United States v.

Hayes, 236 F.3d 891, 894 (7th Cir. 2001). The test is an ob-

jective one and evaluates whether probable cause existed on

the facts as they appeared to a reasonable police officer,

even if the reasonable belief of that officer is ultimately

found to be incorrect. Kelly v. Myler, 149 F.3d 641, 646 (7th

Cir. 1998).

Officer Pauley claims that at the time of the arrest he

reasonably believed that Payne was obstructing his duties

as a police officer. Under Illinois law, it is unlawful to

14 No. 02-2674

“knowingly resist[ ] or obstruct[ ] the performance by one

known . . . to be a peace officer.” 720 ILCS 5/31-1. It is well

settled under Illinois law—and was well settled at the time

of Payne’s arrest—however, that the resistance must be

physical; mere argument will not suffice. People v.

Weathington, 411 N.E.2d 862, 863-64 (Ill. 1980); People v.

Raby, 240 N.E.2d 595, 599 (1968); People v. Long, 738

N.E.2d 216, 222 (Ill. App. 2000); People v. Martinez, 717

N.E.2d 535, 538 (Ill. App. 1999); People v. Hilgenberg, 585

N.E.2d 180, 183 (Ill. App. 1991); Ryan v. County of DuPage,

45 F.3d 1090, 1093 (7th Cir. 1995)(collecting cases). In fact,

the First Amendment protects even profanity-laden speech

directed at police officers. City of Houston v. Hill, 482 U.S.

451, 461 (1987). Police officers reasonably may be expected

to exercise a higher degree of restraint than the average

citizen and should be less likely to be provoked into misbe-

havior by such speech. Id. at 462.

In evaluating whether Pauley had probable cause to ar-

rest, the district court concluded that Payne engaged in ob-

scenity-laced argument with Officer Pauley, incited the

crowd, refused to follow Pauley’s instructions by attempting

to enter his squad car, and attempted to move the truck

after he had instructed her not to do so. (Order at 8-10). In

coming to these conclusions, the district court failed to view

the facts in the light most favorable to Payne. In fact,

Payne denies each of these facts and asserts that she did

not shout or swear at Officer Pauley; she did not attempt to

speak to her son once he was placed in the police car; she

did not disobey any orders from Officer Pauley regarding

moving the truck; and she did not resist arrest, or incite the

crowd.4 It is true that Rasheedah Gray, a witness produced

4

The district court interpreted Payne’s statement that she “de-

fended herself using her free speech rights” (See Defendant’s

Motion for Summary Judgment, Ex. C at p. 62) as an admission

(continued...)

No. 02-2674 15

by Payne, corroborated some of Officer Pauley’s claims, in

particular, the claim that Payne swore at Officer Pauley,

argued with him, and that she made it difficult for him to

arrest her. The court cannot impute Gray’s rendition of the

facts to Payne simply because Payne was the one to identify

Gray as a witness. We must consider the facts in the light

most favorable to Payne, and based on the facts recited by

Payne, Officer Pauley could not have reasonably believed

that he had probable cause to arrest Payne for obstructing

a police officer. Of course if a judge or jury determines that

Payne misrepresented the facts, not only must the court’s

conclusions change accordingly, but Payne will be subject

to sanctions as well.

Officer Pauley claims that even if he did not have proba-

ble cause to arrest Payne for obstructing a police officer, he

had probable cause to arrest her for the related offense of

disorderly conduct. In Illinois, a person commits the mis-

demeanor of disorderly conduct if “he knowingly: (1) Does

any act in such unreasonable manner as to alarm or disturb

another and to provoke a breach of the peace; . . .” 720 ILCS

5/26-1(a)(1).5

Again, we must credit Payne’s version of the facts in

which she claims that she did not argue with Pauley, she

did not swear at him, did not yell, and she did not goad the

4

(...continued)

that she argued with Pauley. Order at 8. Payne denies having

argued with Pauley and certainly could have used her “free speech

rights” to communicate with Pauley in a non-combative manner.

In fact, Pauley claims that she merely responded to his racial

insults by saying “[n]o, that’s not true.” (Defendant’s Motion for

Summary Judgment, Ex. C at p. 62). Furthermore, even if she

had used her “free speech rights” to argue with Pauley, as de-

scribed above, it is well established under Illinois law that mere

argument with a police officer does not constitute obstruction.

5

The other sections of the statute are not relevant in this case.

16 No. 02-2674

crowd. Given these facts, Officer Pauley had no probable

cause to arrest Payne for disorderly conduct. Even had

Payne argued with Officer Pauley, Illinois courts have time

and again held that arguing with a police officer, even if

done loudly, or with profane or offensive language, will not

in and of itself constitute disorderly conduct. People v.

Trester, 421 N.E.2d 959, 960-61 (Ill. App. 1981); People v.

Justus, 372 N.E.2d 1115, 1117 (Ill. App. 1978); People v.

Gentry, 363 N.E.2d 146, 150 (Ill. App. 1977); People v.

Douglas, 331 N.E.2d 359, 363 (Ill. App. 1975); City of

Chicago v. Blakemore, 305 N.E.2d 687, 689 (Ill. App. 1973).

Police officers must be more thick skinned than the ordi-

nary citizen and must exercise restraint in dealing with the

public. They “must not conceive that every threatening or

insulting word, gesture, or motion amounts to disorderly

conduct.” Justus, 372 N.E.2d at 1117 (internal citation

omitted). Furthermore, arguing with a police office does not

evolve into disorderly conduct merely because a crowd gath-

ers to watch the argument. Id. at 1118; Douglas, 331

N.E.2d at 363; Gentry, 363 N.E.2d at 150. Of course the ar-

gument is only one factor to be considered; the nature of the

surrounding circumstances may also come into play. Justus,

372 N.E.2d at 1117; Gentry, 363 N.E.2d at 150; Douglas,

331 N.E.2d at 363; Biddle v. Martin, 992 F.2d 673, 677 (7th

Cir. 1998). According to the facts, as passed through our

summary judgment filter, it was Officer Pauley and not

Payne who incited the crowd by mistreating Kyle Payne and

using derogatory language. It would be inherently unfair if

an officer could rile up a crowd by mistreating a citizen in

front of the crowd, and then could arrest that citizen for

creating the disturbance. In short, there are questions of

material fact regarding the demeanor of the crowd and the

threat to public order. See, e.g., Kies v. City of Aurora, 156

F. Supp. 2d 970, 985 (N.D. Ill. 2001) (dispute over the

status of the crowd and the threat to public order precluded

a determination of whether plaintiff’s actions threatened a

No. 02-2674 17

breach of the peace and consequently whether the police

officer was entitled to qualified immunity, therefore

precluding a grant of summary judgment). Based on

Payne’s facts, Pauley had no probable cause to arrest

Payne. Because we find that Officer Pauley had no probable

cause to arrest Payne for disorderly conduct, we need not

decide whether the district court’s use of the related offense

doctrine was appropriate.

Payne has successfully passed the first hurdle of the

qualified immunity test: taking the facts in the light most

favorable to her, she has shown that Officer Pauley violated

her Fourth Amendment rights by arresting her without

probable cause. Officer Pauley is immune from suit, how-

ever, if those rights were not clearly established at the time

of her arrest such that it would have been clear to a rea-

sonable officer that Pauley’s conduct was unlawful. Saucier,

533 U.S. at 202. According to Payne’s rendition of the facts,

she did not argue, swear, incite, obstruct, or resist. Based

on these facts, no reasonable officer could have concluded

that she was obstructing a police officer or engaged in

disorderly conduct. Officer Pauley is not entitled to quali-

fied immunity for arresting Payne without probable cause.

Turning now to Payne’s excessive force claim, we analyze

allegations that police officers used excessive force under

the Fourth Amendment and its reasonableness require-

ment. Smith v. Ball State Univ., 295 F.3d 763, 770 (7th Cir.

2002). A court determines whether an officer has used ex-

cessive force in effectuating an arrest based on a standard

of “objective reasonableness,” that is from “the perspective

of a reasonable officer on the scene, rather than with the

20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386,

396-97 (1989). A police officer’s use of force is unconstitu-

tional if, “judging from the totality of circumstances at the

time of the arrest, the officer used greater force than was

reasonably necessary to make the arrest.” Lester v. City of

Chicago, 830 F.2d 706, 713 (7th Cir. 1987). The inquiry is

18 No. 02-2674

fact specific and balances the intrusion on the individual

against the governmental interests at stake. The specific

facts a court should consider include the severity of the

crime at issue, whether the suspect poses an immediate

threat to the safety of the officers or others, and whether

the suspect is actively resisting arrest or attempting to

evade arrest by flight. Graham, 490 U.S. at 396.

Again, the district court erred by crediting Officer

Pauley’s version of events when considering the excessive

force claim. The district court considered the reasonable-

ness of the force used in light of the fact that Payne had ar-

gued with and directed profanities against Pauley, refused

to obey his orders, agitated the crowd, and resisted arrest.

(Order at 11, 14-15). But these are not facts viewed in the

light most favorable to Payne. Payne, in fact, denies each

one. The district court also chose to believe that the hand-

cuffing procedure lasted only a few minutes, as Officer

Pauley alleged, rather than the thirty minutes that Payne

alleged. Furthermore, in considering the severity and

source of Payne’s injuries, the court below credited the tes-

timony of Pauley’s medical expert over Payne. It is the job

of the jury, and not the district court judge at summary

judgment, to determine which party’s evidence to credit.

See Wilson, 997 F.2d at 350 (“[a]lthough a factfinder might

ultimately give more weight to the opinion of a physician

than to a pre-trial detainee and another inmate, to make

that decision at the summary judgment stage usurps the

role of the factfinder.”)

Payne alleges that Pauley unsnapped his holster and held

his arms over his head as if to strike her and that he ran at

her knocking into her body with his stomach and chest. She

also alleges that, although she volunteered to be arrested,

Officer Pauley fought with the other officers over Payne’s

arm for thirty minutes, eventually forcing her arms behind

her back, twisting her arm, and over-tightening the hand-

cuffs. As a result of the handcuffing incident and the way

No. 02-2674 19

the officers fought over her arm, she alleges she received

significant injuries.

The Supreme Court has noted that “[t]he calculus of rea-

sonableness 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. Never-

theless, even given this flexibility, Officer Pauley’s force in

arresting a woman who was not threatening to harm the

police officer or anyone else at the scene, was not resisting

or evading arrest, was not attempting to flee, and was

charged with such minor offenses, was not objectively rea-

sonable. See Herzog, 309 F.3d at 1042-43 (refusing to loosen

plaintiff’s chafing handcuffs constitutes excessive force in

case where complainant had violated no law, was arrested

without probable cause and did not resist); Brown v. Vill.

of Evergreen Park, No. 02 C 0236, 2002 WL 31844991, at *4

(N.D. Ill. Dec. 18, 2002) (defendant alleged sufficient facts

to support a claim of excessive force where he was stopped

for no reason, did not resist arrest, was completely submis-

sive and yet handcuffs applied so tightly he suffered nerve

damage);6 see also, Kukla v. Hulm, 310 F.3d 1046, 1050 (8th

6

At oral argument, counsel for Payne asked us to clarify the rule

in this Circuit for citing unpublished district court opinions. Al-

though, as Payne’s counsel noted, our opinions have been less

than consistent regarding this issue, our Circuit Rule has re-

mained consistent and clear and states as follows: “[e]xcept to the

purposes set forth in Circuit Rule 53(b)(2)(iv), no unpublished

opinion or order of any court may be cited in the Seventh Circuit

if citation is prohibited in the rendering court.” Circuit Rule 53(e).

As there is no rule in the Northern District of Illinois barring

citations to unpublished opinions (see Kingvision Pay Per View,

Ltd. v. Boom Town Saloon, Inc., 98 F. Supp. 2d 958, 959, n.1 (N.D.

(continued...)

20 No. 02-2674

Cir. 2002) (whether police used excessive force was issue for

jury where handcuffs were so tight that plaintiff sprained

wrist, shoulder, and elbow, where plaintiff had committed

no offense, he posed no safety threat, and made no show of

resistance); Mickle v. Morin, 297 F.3d 114, 121-22 (2d Cir.

2002) (holding that rational juror could find use of force ex-

cessive where handcuffing caused bruising and dislocated

rotator cuff and plaintiff’s only offense was making non-

emergency calls to 911); Kostrzewa v. City of Troy, 247 F.3d

633, 640-41 (6th Cir. 2001) (refusing to dismiss excessive

force complaint where plaintiff was arrested for making an

illegal left-hand turn and application of handcuffs made

wrists swollen, red, and painful); LaLonde v. County of

Riverside, 204 F.3d 947, 959-60 (9th Cir. 2000) (allowing

issue of excessive force to go jury where officers responding

to noise complaint applied tight handcuffs and used pepper

spray); Heitschmidt v. City of Houston, 161 F.3d 834, 838-40

(5th Cir. 1998) (holding that, on the basis of the plead-

ings, the court could not conclude that the force exerted was

reasonable where the police officer placed the plaintiff in

tight handcuffs for four and a half hours, where plaintiff

was not a target of the investigation, he did not attempt to

flee, and police had no reason to suspect him of wrongdo-

ing).

Having established the threshold question regarding the

constitutional right under the Fourth Amendment, we must

now complete the qualified immunity inquiry by determin-

ing whether it would have been sufficiently clear to a rea-

sonable officer that he used excessive force in the situation

he confronted. At the time of the arrest, it was clearly es-

tablished that “police officers do not have the right to shove,

6

(...continued)

Ill. 2000)), nothing would prohibit a litigant from citing these un-

published district court opinions in this Court.

No. 02-2674 21

push, or otherwise assault innocent citizens without any

provocation whatsoever.” Clash v. Beatty, 77 F.3d 1045,

1048 (7th Cir. 1996). It was also well established that it

was unlawful to use excessively tight handcuffs and vio-

lently yank the arms of arrestees who were not resisting

arrest, did not disobey the orders of a police officer, did not

pose a threat to the safety of the officer or others, and were

suspected of committing only minor crimes. See Hill v.

Miller, 878 F. Supp. 114, 116-17 (N.D. Ill. 1995) (denying

summary judgment on excessive force claim where police of-

ficer pushed complainant against police car and handcuffed

him so tightly that he suffered nerve damage where suspect

violated no law, complied fully with officer’s instructions,

and did not resist arrest); Ingram v. Jones, No. 95 C 2631,

1995 WL 745849, at *11 (N.D. Ill. Nov. 29, 1995) (denying

defendants’ motion to dismiss excessive force claim where

woman alleged that police officer forcefully grabbed and

handcuffed her where she had committed no crime, did not

resist, and fully complied with all of the officer’s requests),

modified on other grounds by No. 95 C 2631, 1997 WL

323538 (N.D. Ill. June 9, 1997); Tennen v. Shier, No. 94 C

2127, 1995 WL 398991, at *7 (N.D. Ill. June 30, 1995) (rea-

sonable factfinder could find officer used excessive force in

grabbing complainant’s arm, and yanking him around by

the arm, where he had violated no law and posed no

physical threat to the officer); see also Martin v. Heideman,

106 F.3d 1308, 1312-13 (6th Cir. 1997) (though amount of

force used was allegedly greater than in instant case,

stating that overly tight handcuffing constitutes excessive

force); Palmer v. Sanderson, 9 F.3d 1433, 1436 (9th Cir.

1993) (refusing to grant summary judgment for police

officers where tight handcuffs caused pain and bruising

and plaintiff passed field sobriety tests and had violated

no law).

It is true, as Pauley points out in his brief, that there are

other cases in which courts have not found that the applica-

tion of tight handcuffs constituted excessive force, but after

22 No. 02-2674

reviewing those cases we find that the factual scenarios are

distinguishable either because the subject resisted arrest,

failed to obey orders, was accused of a more serious or vio-

lent crime, or because the officers used far less force than

Payne alleges.

In this case, according to Payne’s account, Officer Pauley

confronted a woman who posed no danger to Officer Pauley

or to the public, who did not resist arrest, and who was

alleged to have committed a very minor, non-violent crime.

If the facts as alleged by Payne are found to be true, then

and only then, should it have been clear to Officer Pauley,

or to any reasonable officer under these circumstances, that

it would be unlawful to use the amount of force he did to

arrest Payne.

III.

At this juncture we must accept the facts in the light most

favorable to Payne, although we emphasize that if a

factfinder concludes that the events at issue did not occur

as Payne alleges, our provisional conclusions regarding

probable cause to arrest and use of excessive force cannot

stand. Nevertheless, because we find that there are genuine

issues of material fact that cannot be resolved in a sum-

mary judgment proceeding, we reverse the district court’s

grant of Officer Pauley’s motion for summary judgment

REVERSED.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—7-9-03