Sallenger, Mary v. Oakes, Brian

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 05-3470

MARY SALLENGER, AS THE ADMINISTRATOR OF

THEESTATE OF ANDREW B. SALLENGER, DECEASED,

Plaintiff-Appellee,

v.

BRIAN OAKES, JAMES ZIMMERMAN, AND

JASON OLIVER,

Defendants-Appellants.

____________

Appeal from the United States District Court

Central District of Illinois.

No. 03-3093—Jeanne E. Scott, Judge.

____________

ARGUED SEPTEMBER 14, 2006—DECIDED JANUARY 10, 2007

____________

Before CUDAHY, MANION, and ROVNER, Circuit Judges.

CUDAHY, Circuit Judge. Andrew Sallenger, who suffered

from mental illness, died on April 30, 2002, while the

defendants were placing him under arrest. Mary Sallenger,

his mother and the administrator of his estate, brought

this lawsuit against the City of Springfield and the three

police officers involved in this incident, among other

parties, alleging a claim under 42 U.S.C. § 1983 pursuant

to the Fourth Amendment’s right to be free from excessive

force, among other claims. The issue in this case is

whether Sergeant Zimmerman, Officer Oakes and Officer

2 No. 05-3470

Oliver are entitled to qualified immunity. The district

court determined that they were not. We agree and affirm

the district court’s decision to deny the individual defen-

dants’ motion for summary judgment with respect to the

Fourth Amendment excessive force claim.

I. Background

In the early morning hours of April 30, 2002, Andrew

Sallenger, who was mentally ill, experienced a severe

psychotic episode. That night, Andrew Sallenger was

staying at the home of his mother, Mary Sallenger, the

Administrator of Andrew’s estate and Appellee in the

present case. Ms. Sallenger’s daughter Kim Nolan and

her four children were also spending the night at

Ms. Sallenger’s home. After midnight, Andrew awakened

the household with his screams and disturbing behavior.

Ms. Sallenger, Ms. Nolan and Ms. Nolan’s children left

the home, and Ms. Nolan called 911 at 1:49 a.m.

According to the transcript of the exchange with the 911

operator, Ms. Nolan informed the operator that her

brother was “completely naked and keeps on yelling at

us . . . .” She asked the 911 operator to dispatch paramed-

ics to Ms. Sallenger’s home. She also notified the operator

that her brother was “schizophrenic bipolar manic depres-

sive” and that earlier in the day she had gone to the

state’s attorney to ask about having Andrew involuntarily

committed.

Sergeant James Zimmerman, Officer Brian Oakes and

Officer Jason Oliver (collectively “the officers”) were

immediately dispatched to Ms. Sallenger’s home. They

arrived shortly after 2:00 a.m. Ms. Sallenger, Ms. Nolan

and Ms. Nolan’s children were waiting outside of the

residence when they arrived. Ms. Nolan informed the

officers that her brother was mentally ill. Ms. Sallenger

No. 05-3470 3

told the officers that she wanted the paramedics, not the

officers, to assist Andrew. Ms. Nolan informed the officers

that they could enter through the back door of the resi-

dence, which was unlocked. Lastly, she told Officer Oakes

that Andrew was throwing things around the house,

chasing the cat and chasing the other members of the

household while naked.

Sergeant Zimmerman testified that Officer Oakes

informed him that Andrew had a mental problem and

that he was big and strong. Officer Oliver testified that

Oakes and Zimmerman mentioned a conflict Andrew had

had with the Springfield Police Department (“the Depart-

ment”) officers a few days before on April 28, 2002. Officer

Oliver also testified that one of the family members told

Officer Oakes and Sergeant Zimmerman that Andrew

“would probably fight [them].” Andrew and the officers

were all large men. Andrew weighed 262 pounds and was

approximately 6’ tall. Sergeant Zimmerman was 5’ 10” tall

and weighed 260 pounds. Officer Oakes was 5’ 10” tall

and weighed 220 pounds. And Officer Oliver stood 6’ 3” tall

and weighed 215 pounds. Officers Oakes and Oliver were

both weightlifters and could bench-press approximately

275 pounds. At the time of the incident, the Department

policy was to treat all potential arrestees the same way,

regardless of their mental condition. None of the officers

was specifically trained in how to respond to mentally ill

individuals.

The officers entered the home with Sergeant Zimmerman

in the lead. Sergeant Zimmerman and Officer Oliver

testified that at that time they believed they would arrest

Andrew for disorderly conduct. Officer Oakes testified that

he did not intend to arrest Andrew at the time they

entered the house. Sergeant Zimmerman announced the

officers’ entrance. The officers used flashlights to navigate

their way through the house, which was dark. The officers

made their way to his bedroom. When they first saw

4 No. 05-3470

Andrew, he was sitting cross-legged on the floor of his

bedroom, completely naked, with his back against the

side of his bed, and his right side facing the officers. The

officers could hear Andrew muttering something about

colors and fishing. Sergeant Zimmerman recalled that

there were no lights on in his bedroom; Officers Oliver

and Oakes remembered a small bedroom lamp as being on.

Despite Sergeant Zimmerman’s repeated announce-

ments, Andrew did not appear to be aware of the officers’

presence. Andrew first acknowledged them by saying,

“Hey, what are you guys doing here?” According to the

officers, Andrew then threw a small, white object resem-

bling an ashtray that landed close to Sergeant

Zimmerman.1 After acknowledging the officers’ presence,

Andrew stood up and approached the officers, who were

standing about five to six feet away from Andrew. Accord-

ing to Sergeant Zimmerman, Andrew stood up, swore at

them, rushed at Zimmerman, grabbed his shoulder radio

equipment and knocked the flashlight out of his right

hand. Officer Oakes, who was behind Zimmerman, testi-

fied that Andrew swore at the officers, threatened to kill

them, clenched his fists and came at them with his fists

up. Officer Oliver, who was behind Oakes, testified that

Andrew swore at the officers, clenched his fists,

approached in a “boxing position,” stopped in front of

Zimmerman and started to reach for him.

At that time, Officer Oakes sprayed oleoresin capsicum

(OC) spray, commonly known as pepper spray, into An-

drew’s face. Some of the spray also hit Zimmerman’s face.

Sergeant Zimmerman pushed Andrew backward, and both

1

Ms. Sallenger disputes this claim based on the fact that the

crime scene investigator did not find any object that met this

description when he conducted a search of the bedroom after the

incident.

No. 05-3470 5

of them fell into the bedroom with Sergeant Zimmerman

on top of Andrew. Andrew then managed to turn himself

onto his stomach. Officer Oakes grabbed Andrew’s right

arm, and Sergeant Zimmerman grabbed his left. At the

same time, Officer Oakes attempted to control Andrew’s

legs. As Andrew tucked his arms under him, the officers

struggled with Andrew to maneuver his arms behind

his back so that they could handcuff him. During the

struggle, the officers repeatedly told Andrew that he

was under arrest and commanded him to stop resisting

arrest. Andrew repeatedly told the officers to leave and

threatened to kill them.

Andrew managed to bring himself up onto his hands

and knees. Officer Oliver put his knee across Andrew’s

shoulder blades to try to push him back down on the

ground. Andrew managed to lunge to the bed, lifting his

torso on the bed, with his knees on the floor. All three

officers followed Andrew to the bed. Andrew tucked his

arms under his torso to prevent handcuffing. During the

move to the bed, the lamp was knocked over. Officer

Oakes testified that he threw his flashlight onto the bed

to illuminate the room. Ms. Nolan testified that she saw

the bedroom light go out and then witnessed what she

described as a flashlight beam “moving around . . . like

a hitting motion . . . .”

Soon after Andrew was on the bed, Officer Oliver and

Sergeant Zimmerman were able to maneuver Andrew’s

arms behind his back and handcuff him. Before Andrew

was handcuffed, the officers applied several types of

force, which were increasingly severe, to get him to comply

with their orders. First, Officer Oliver used several

pressure-point techniques, which were ineffective. Ser-

geant Zimmerman used an armbar technique in order to

maneuver Andrew’s left arm into a position where hand-

cuffs could be placed. Second, both Officer Oliver and

Officer Oakes administered closed-fist blows to Andrew.

6 No. 05-3470

Officer Oliver struck Andrew’s right shoulder two or three

times. Officer Oakes struck Andrew’s right common

peroneal area, the site of a nerve behind the right thigh,

with two sets of triple punches. Third, Officer Oakes

struck Andrew with three sets of triple blows with the

flashlight in Andrew’s right common peroneal area.

According to the officers, despite being handcuffed,

Andrew continued to struggle. He attempted to pull his

hands apart, and he threatened to kill the officers unless

they removed his handcuffs. Andrew also kicked Officer

Oakes several times. After he was handcuffed, Officers

Oakes and Oliver continued to exert additional force,

beyond open-hand control, on Andrew. Officer Oliver

delivered two closed-fist punches to Andrew’s shoulder

area and two blows with the flashlight to Andrew’s upper

arm. Officer Oliver testified that he thought Andrew was

reaching for Oliver’s duty belt. Officer Oakes delivered a

fourth set of triple blows with the flashlight to Andrew’s

right common peroneal area. Officer Oakes testified that

after this fourth set of blows Andrew “stopped kicking,

stopped trying to move.”

Sergeant Zimmerman left the bedroom to wash the OC

spray out of his eyes. He returned to check on the situa-

tion. After hearing from Officers Oakes and Oliver that

everything was all right, Sergeant Zimmerman left again

to flush the OC spray from his eyes. When Sergeant

Zimmerman returned again, Officer Oakes give him his

car keys and asked him to retrieve the hobble he kept

in his police car. A hobble is a cord that is looped around

the lower legs and then connected to a strap which is

attached to handcuffs.

At the time of the incident, the Department allowed, and

even directed, officers to use hobbles in some situations,

namely “in cases in which a prisoner is displaying or has

indicated signs of a hostile and combative nature.” Officer

No. 05-3470 7

Oakes’s hobble was not issued by the Department, rather,

he had purchased it from a retail website. The Depart-

ment did not offer training on the use of the hobble, and

none of the officers were trained in the use of a hobble,

although Officer Oakes testified that he had read the

instructions and had seen other officers use one. Sergeant

Zimmerman testified that he knew that it was important

to turn a person restrained in a hobbled position on his

side “to make sure that the airway is clear and that [the

arrestee] can still breathe.” Officer Oakes was not aware

until after the incident in question that a hobble could

create a risk of positional asphyxiation.

Andrew was still on the bed, with his knees on the floor

and his body in a kneeling position, when Sergeant

Zimmerman returned with the hobble. Officer Oliver had

his right knee on Andrew’s right shoulder area, his right

hand pressing on Andrew’s left shoulder, and his left hand

pulling up on the handcuff chain. Officer Oakes testified

that he was still trying to control Andrew’s feet. Sergeant

Zimmerman and Officer Oakes then placed the hobble on

Andrew. Officer Oakes testified that he pulled the strap

connecting the leg restraint to the handcuffs tight enough

so that his “toes . . . were no longer touching the ground;

they were elevated, more or less . . . [and] [h]is lower legs

from below his knees were . . . pointing towards his

butt . . . .” After the hobble was placed, all three officers

released Andrew and stepped away. Sergeant Zimmerman

and Officer Oliver stated that Andrew continued to

struggle.

At some point, Sergeant Zimmerman noticed that

Andrew was not breathing. Sergeant Zimmerman offered

a different account than Officers Oakes and Oliver as to

the position of Andrew’s body at this time. Sergeant

Zimmerman testified that he rolled Andrew off the bed

and onto his side after the hobble was placed. Officer

Oakes testified that Andrew was hobbled with his torso

8 No. 05-3470

leaning up against the bed and that he “remained in that

position” after he was hobbled. Oakes further testified that

Andrew was not moved off the bed until after Sergeant

Zimmerman recognized that Andrew was no longer

breathing. Officer Oliver also testified that Andrew was

not rolled off of the bed until after Sergeant Zimmerman

asked if Andrew was still breathing. Lieutenant Mark

Bridges, who arrived at the scene shortly before the

officers realized Andrew was not breathing, also testified

that Andrew was hobbled and leaning against the bed.

Ms. Nolan and the three defendants offered different

testimony about the length of time between the hobble

being placed and the discovery that Andrew was no longer

breathing. Zimmerman, Oakes and Oliver all testified

that the time between the hobbling and their realization

that Andrew was not breathing was only a few seconds.

Ms. Nolan’s account challenges this timing. She stated

that she witnessed Sergeant Zimmerman retrieve the

hobble from Officer Oakes’s police car, return with it to

the residence and then come out some time later to wipe

off his face. Ms. Nolan further testified that she heard

Andrew scream three times. She then followed Sergeant

Zimmerman back into the house and to Andrew’s bedroom.

She recounted that when she reached Andrew’s bedroom,

she turned on the overhead light and saw Andrew

handcuffed and hobbled with his head and chest on the

bed and his knees on the ground. Ms. Nolan then testi-

fied that she started to scream, “. . . oh my God, you killed

my brother, you killed my brother.” She testified that the

officers did not check for Andrew’s pulse until she came

into the bedroom and started screaming. Officer Oakes

testified that Ms. Nolan came into the bedroom after

Andrew was handcuffed but before he was hobbled.

After the officers determined that Andrew was not

breathing and had no pulse, they removed the hobble, and

Andrew’s right hand was uncuffed. At that point CPR was

No. 05-3470 9

administered. Andrew was transported to St. John’s

hospital in Springfield, Illinois. He never regained con-

sciousness and was declared brain dead on May 1, 2002.

According to an autopsy performed by Dr. Kent

Harshbarger, M.D., J.D., the cause of death was “a

cardiorespiratory arrest during prone police restraint due

to excited or agitated delirium. The death [was] contrib-

uted to by clinical history of mental illness, cardiomegaly

[enlarged heart], fatty liver, and obesity.” Dr. Harshbarger

explained that “excited or agitated delirium” is character-

ized by “agitation, hostility, bizarre or hyperactive behav-

ior, paranoia, shouting, thrashing, ranting and usually

performing feats of exceptional strength or endurance

without apparent fatigue.” Dr. Harshbarger concluded

that Andrew’s death was “likely related to the various

neurophysiologic or neurochemical stressors acting upon

underlying natural disease processes as opposed to any

clinically relevant reduction in oxygenation during the

period of restraint.” He also noted Andrew’s enlarged

heart, which weighed 550 grams in contrast to the normal

male heart’s weight of 350 grams, as a risk factor for

sudden cardiac arrest. As for using prone restraint tech-

niques, Dr. Harshbarger, testified:

Many investigators focus on the potential for “posi-

tional asphyxia” or reduction in blood oxygenation as

the underlying cause of death, however, the data to

date does not confirm significant lowering of blood

oxygen in healthy volunteer subjects. The test subjects

do demonstrate a prolonged pulse recovery time when

in the prone and “hobbled” position confirming a

physiologic mechanism affecting the heart that is

related only to body positioning.

After examining Andrew’s physical injuries, Dr.

Harshbarger concluded that “there were no injuries

identified internally or externally, at the time of autopsy,

10 No. 05-3470

which would explain a sudden death.” Dr. Harshbarger

acknowledged that “the bruises [on Andrew’s body] are

significant . . . many of the contusions are large and of

great force. Particularly in the arms, and the lateral sides

of the arms, lateral sides of the thighs, exactly where they

should be in someone trying to be restrained. [But]

[t]hey’re not lethal.” Dr. Harsburger also testified that

one of Andrew’s head injuries was consistent with a

flashlight or closed-fist blow.

Mary Sallenger filed a lawsuit against the City of

Springfield, the Springfield Police Department and sev-

eral members of the Springfield Police Department,

including Officer Brian Oakes, Sergeant James Zim-

merman and Officer Jason Oliver, in both their official

capacities and as individuals.2 Among other claims, Ms.

Sallenger alleged violation of Andrew’s rights under the

First, Fourth, Fifth, Sixth, Eighth and Fourteenth Amend-

ments to the United States Constitution, pursuant to 42

U.S.C. § 1983. Defendants Oakes, Zimmerman and Oliver

filed a motion for summary judgment on grounds of

qualified immunity. The plaintiff did not contest the

individual defendants’ summary judgment motion with

respect to her claims under the First, Sixth and Eighth

Amendments, and those claims were dismissed. The

district court granted the defendants’ motion for summary

judgment with respect to the Fourth Amendment claim for

failure to provide medical care, as well as the Fourteenth

Amendment claims but denied it with respect to the

Fourth Amendment excessive force claim. Therefore, the

2

Claims against the Department, as well as the individual

defendants in their official capacities, were dismissed with

prejudice by the district court’s October 8, 2003 Order. On

January 28, 2005, the plaintiff voluntarily dismissed Defendant

James Wangard with prejudice.

No. 05-3470 11

only claim relevant to this appeal is the Fourth Amend-

ment excessive force claim pursuant to 42 U.S.C. § 1983.

II. Discussion

A. Jurisdiction

Before reaching the issue of qualified immunity, there

is an issue of appellate jurisdiction. The plaintiff contends

that the defendants are seeking review of the district

court’s findings of facts, which is precluded by the collat-

eral order doctrine.

Recognizing the urgency of denials of qualified immu-

nity, summary judgment on these grounds is deemed a

“final judgment” under 28 U.S.C. § 1291 and is immedi-

ately appealable. Mitchell v. Forsyth, 472 U.S. 511, 525

(1985); Jones v. Wilhelm, 425 F.3d 455, 466 (7th Cir. 2005).

There is an important limitation to this principle, however.

Under the collateral order doctrine, the Court of Appeals

may consider only issues of law and may not consider any

case which raises a genuine issue of material fact on

appeal. Johnson v. Jones, 515 U.S. 304, 313 (1995). As the

Supreme Court further explained in Behrens v. Pelletier,

516 U.S. 299, 313 (1996), “determinations of evidentiary

sufficiency at summary judgment are not immediately

appealable merely because they happen to arise in a

qualified-immunity case.” However, a case is appealable

when it involves “a dispute concerning an ‘abstract issu[e]

of law’ relating to qualified immunity, typically the issue

whether the federal right allegedly infringed was ‘clearly

established’ . . . .” Id. (quoting Johnson, 515 U.S. at 317).

In the present case, the district court determined that

“there exist genuine issues of material fact as to whether

the force used by Sergeant Zimmerman, Officer Oakes, and

Officer Oliver was excessive.” Sallenger v. City of Spring-

field, No. 03-3093, 2005 WL 2001502, *21 (C.D. Ill. Aug. 4,

12 No. 05-3470

2005). But, we have earlier held that a district court’s

finding of genuine issues of fact does not always preclude

appellate review. Leaf v. Shelnutt, 400 F.3d 1070, 1080-81

(7th Cir. 2005); see also McKinney v. Duplain, 463 F.3d

679, 688 (7th Cir. 2006). “[W]hen the outcome of a ques-

tion of law. . . does not depend on the outcome of a dis-

puted factual question, we may review whether the district

court correctly determined the question of law that it

considered.” Leaf, 400 F.3d at 1078. In conducting such a

review, the appellate court simply adopts the facts as

specified by the district court. Id.; McKinney, 463 F.3d at

688. Importantly, though, a defendant in such a case

must accept the facts as found by the district court in

order for us to have jurisdiction to hear the appeal.

McKinney, 463 F.3d at 690. In other words, a defendant

appealing the denial of a motion for summary judgment

may only appeal this judgment if she accepts the district

court’s version of the facts.

Toward the end of their opening brief here, the defen-

dants question a number of facts as found by the district

court. However, they acknowledge that they are not ask-

ing this court to review the district court’s version of the

facts. “[W]ithout asking this Court to revisit the District

Court’s findings with regard to disputed material facts, the

officers must take issue with some of the assumptions

made by the District Court in its analysis.” Appellants’

Brief at 33. Moreover, in their response to the appellee’s

motion to dismiss, the defendants explicitly state: “It is not

necessary for this Court to re-visit the facts found by the

District Court in order to decide [the qualified immunity

issue], nor do defendants ask the Court to do so.” Appel-

lants’ Response to Appellee’s Motion to Dismiss at 2.

Further, the appellants conceded at oral argument that

they accepted the district court’s version of the facts for

summary judgment purposes. Therefore, we can decide

qualified immunity as a matter of law without review of

No. 05-3470 13

the district court’s findings of facts. The appellee’s motion

to dismiss for lack of jurisdiction is therefore denied.

B. Qualified Immunity

We review a district court’s denial of summary judg-

ment de novo. Leaf, 400 F.3d at 1077-78. Summary

judgment should be granted where the “pleadings, deposi-

tions, 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 moving

party is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(c). The evidence and all inferences that reason-

ably can be drawn from the evidence are construed in the

light most favorable to the non-moving party, here, the

plaintiff. Leaf, 400 F.3d at 1078.

Governmental actors performing discretionary func-

tions are entitled to qualified immunity and are “shielded

from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitu-

tional rights of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In

Saucier v. Katz, 533 U.S. 194, 200 (2001), the Supreme

Court articulated a two-part inquiry to determine whether

a government actor is entitled to qualified immunity. First,

the plaintiff must present evidence that, taken in the

light most favorable to the plaintiff, would allow a reason-

able fact finder to determine that he has been deprived of

a constitutional right. Id. at 201. If the plaintiff meets that

burden, we must determine whether the particular

constitutional right was clearly established at the time of

the alleged violation. Id. If the right was clearly estab-

lished, the government actor is not entitled to qualified

immunity.

Here, with respect to the first part of the inquiry, the

plaintiff alleges that Andrew’s Fourth Amendment right to

14 No. 05-3470

be free from unreasonable seizures was violated. This

claim must be analyzed under the Fourth Amendment’s

objective reasonableness standard. Graham v. Connor, 490

U.S. 386, 395, 397 (1989). “Determining whether the force

used to effect a particular seizure is reasonable under the

Fourth Amendment requires a balancing of the nature

and quality of the intrusion on the individual’s Fourth

Amendment interests against the countervailing govern-

mental interests at stake.” Id. at 396 (citations and

quotation marks omitted). This analysis is “not capable of

precise definition or mechanical application.” Id.

To determine whether the force used to effect a seizure

is unreasonable, we much examine the “totality of the

circumstances” surrounding the incident. Tennessee v.

Garner, 471 U.S. 1, 8-9 (1985); Estate of Phillips v. City of

Milwaukee, 123 F.3d 586, 592 (7th Cir. 1997). “[T]he

severity of the crime at issue, whether the suspect poses

an immediate threat to the safety of the officers or others,

and whether he is actively resisting arrest or attempting

to evade arrest by flight” are specific factors for courts to

consider. Graham, 490 U.S. at 396. Pertinent to this case,

we have previously held that mental illness may also

be relevant to the reasonableness inquiry. Abdullahi v.

City of Madison, 423 F.3d 763, 770 (7th Cir. 2005). Impor-

tantly, all of these facts and circumstances “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.

Viewing the facts in the light most favorable to the

plaintiff for summary judgment purposes, the district

court determined the facts involving the officers’ use of

force to be as follows:

[T]he evidence is that the officers delivered repeated,

closed-fist blows and blows with flashlights to the back

of Andrew’s shoulders and thighs after Andrew was

No. 05-3470 15

handcuffed, that the officers continued to strike

Andrew and hobbled him after he had stopped trying

to kick or move, and that the officers did not immedi-

ately put him on his side, to assist his breathing, after

hobbling him.

Sallenger, 2005 WL 2001502, at *21. Given these facts, the

district court concluded that the officers’ use of force was

objectively unreasonable, and therefore, Andrew’s right to

be free from unreasonable seizure under the Fourteenth

Amendment had been violated. We agree.

We focus on the force exerted by the officers in attempt-

ing to place Andrew under arrest. First, the officers

“delivered repeated, closed-fist blows and blows with

flashlights to the back of Andrew’s shoulders and thighs

after Andrew was handcuffed.” Id. (emphasis added). The

officers do not deny this use of force. Both Officer Oakes

and Office Oliver provided testimony that they adminis-

tered punches and blows after Andrew had been

handcuffed. Cf. Estate of Phillips, 123 F.3d at 593 (grant-

ing qualified immunity by relying, in part, on the fact that

“the officers did not punch, slap, kick or otherwise deliver

a blow to the [arrestee’s] body”). Although the defendants

deny any strikes to Andrew’s head, the medical evidence

suggests that Andrew’s head injuries were consistent

with a flashlight or closed-fist blow. This blow may

constitute deadly force which is unreasonable unless “the

suspect threatens the officers with a weapon or there is

probable cause to believe that he has committed a crime

involving the infliction or threatened infliction of serious

physical harm . . . .” Garner, 471 U.S. at 11; see also

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

Andrew did not threaten the officers with a weapon, nor

was there probable cause to believe that he had committed

a crime involving serious physical harm.

Moreover, Sergeant Zimmerman testified that after

Andrew was handcuffed, he left Andrew’s bedroom on two

16 No. 05-3470

occasions to wash out the pepper spray from his eyes.

Zimmerman’s departure from the bedroom raises a ques-

tion of fact as to the degree of control Officer Oakes and

Officer Oliver had over Andrew after he was handcuffed.

His ability to leave the bedroom suggests that Officer

Oliver and Officer Oakes had sufficient control

over Andrew at that time to render the additional

punches and blows unnecessary, and therefore, unreason-

able. Although closed-fist blows and blows with the

flashlight may have been necessary at first, this does not

mean that this force was still justified after the handcuffs

had been secured. See Frazell v. Flanigan, 102 F.3d 877,

885 (7th Cir. 1996) (determining that degree of force

justified earlier in the encounter was not justified after

arrestee was restrained), overruled on other grounds by

McNair v. Coffey, 279 F.3d 463 (7th Cir. 2002); Ellis v.

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

that officer may have been justified in shooting arrestee

when bag was thrown at him but not after it had landed

at his feet).

Second, “the officers continued to strike Andrew and

hobbled him after he had stopped trying to kick or move.”

Officer Oakes provided conflicting testimony as to An-

drew’s movements before and after the placement of the

hobble. Although he first testified that Andrew stopped

moving after the fourth set of flashlight blows, he later

testified, consistent with that of Officer Oliver and Ser-

geant Zimmerman, that Andrew continued to struggle

during and after the placement of the hobble. This incon-

sistency raises a genuine issue of material fact as to the

reasonableness of the placement of the hobble and contin-

ued strikes. Depending on the circumstances, hobbling

an individual after he had ceased resisting arrest could

be objectively unreasonable. Moreover, continued

punches and flashlight blows after Andrew had stopped

moving is also objectively unreasonable. See Frazell, 102

No. 05-3470 17

F.3d at 885 (noting that “it is one thing to use force in

subduing a potentially dangerous or violent suspect, and

quite another to proceed to gratuitously beat him”).

And, third, “the officers did not immediately put him on

his side, to assist his breathing, after hobbling him.” The

testimony from the officers as to this third fact relied on

by the district court is also conflicting. Officers Oakes and

Oliver, as well as a third police officer who arrived at the

scene shortly after the defendants realized Andrew was

not breathing, all testified that Andrew was hobbled,

leaning against the bed. Only Sergeant Zimmerman

testified that he had rolled Andrew off the bed and posi-

tioned him on his side after placing the hobble. Failing to

place Andrew in the proper position after hobbling him,

especially in light of the evidence that Andrew had stopped

moving at the time of the hobbling, could be deemed

excessive by a jury. Cf. Estate of Phillips, 123 F.3d at 594

(noting that the officers did not “hog-tie” the arrestee-

defendant when they restrained him in a prone position).

In combination, if not separately, these three facts are

sufficient to allow a reasonable fact finder to determine

that the force exerted by the officers was objectively

unreasonable, thereby depriving Andrew of his Fourth

Amendment right to be free from unreasonable seizure.

We must now determine whether Andrew’s right to be

free from the excessive force exerted by the officers was

“clearly established” at the time of the incident. If the right

was not clearly established, the officers are still entitled to

qualified immunity.

To be “clearly established,” the right in question must

be “sufficiently clear that a reasonable official would

understand that what he is doing violates that right.

This is not to say that an official action is protected by

qualified immunity unless the very action in question

has previously been held unlawful; but it is to say

18 No. 05-3470

that in the light of pre-existing law the unlawfulness

must be apparent.”

Miller v. Jones, 444 F.3d 929, 934 (7th Cir. 2006) (quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The

officers argue that the use of the hobble was not clearly

established as unconstitutional since there are no cases

from this circuit which have called the use of hobbles

into question. Moreover, the defendants cite authority

from our sister circuits holding that the use of a hobble

was not clearly established as constitutionally infirm so as

to deny police officers qualified immunity. See, e.g., Garrett

v. Athens-Clarke County, 378 F.3d 1274 (11th Cir. 2004);

Cruz v. City of Laramie, 239 F.3d 1183 (10th Cir. 2001).

Although the cases relied on by the defendants do

suggest that the mere use of a hobble was not clearly

established as constitutionally suspect, this does not speak

to the totality of circumstances surrounding the use of the

hobble on Andrew. Here, the alleged excessive force does

not solely, or perhaps even primarily, involve the use of the

hobble. Rather, here, the officers repeatedly struck Andrew

with closed-fist blows and blows with a flashlight after he

was handcuffed; they continued to strike him after he had

stopped moving and placed him in a hobble; and, they

failed to put him immediately on his side after they

hobbled him. The question is not whether Andrew’s right

to be free from the officers’ use of the hobble was clearly

established; rather, the issue is whether Andrew’s right to

be free from the whole range of excessive force as described

by the district court was clearly established.

In the first part of our inquiry, we determined that the

officers’ use of force was objectively unreasonable. We

further conclude that Andrew’s right to be free from the

excessive force inflicted on him by the officers was “suffi-

ciently clear that a reasonable official would understand

that what he [was] doing violate[d] that right.” Jones, 444

No. 05-3470 19

F.3d at 934; see also Clash v. Beatty, 77 F.3d 1045, 1048

(7th Cir. 1996) (holding that a showing that force was “so

plainly excessive” is sufficient to meet the clearly estab-

lished requirement). Viewing the facts in the light most

favorable to the plaintiff, a reasonable officer would have

known that administering closed-fist punches and flash-

light blows, including ones to the head, after the arrestee

was handcuffed, continuing to strike him after he had

stopped resisting arrest and failing to place him in the

proper position after hobbling him violated the individual’s

Fourth Amendment right to be free from excessive force.3

Accordingly, the officers are not entitled to qualified

immunity.

“[S]ince the Graham reasonableness inquiry ‘nearly

always requires a jury to sift through disputed factual

contentions, and to draw inferences therefrom, we have

held on many occasions that summary judgment or

judgment as a matter of law in excessive force cases should

be granted sparingly.’ ”Abdullahi, 423 F.3d at 773 (quoting

Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002)). A jury

3

Placing an individual in a hobble after he has stopped resist-

ing arrest could also constitute a Fourth Amendment violation

depending on the circumstances. See Cruz v. City of Laramie, 239

F.3d 1183, 1189 (10th Cir. 2001) (holding that “the fourth

amendment protection against excessive force includes the

protection of an individual’s right to be free from a hog-tie

restraint in situations such as the one confronting the officers

herein”). But see Mayard v. Hopwood, 105 F.3d 1226, 1228 (8th

Cir. 1997) (holding that the force used to take the plaintiff into

custody and place her in the squad car, which included hobbling

her, was objectively reasonable); Garrett v. Athens-Clarke

County, 378 F.3d 1274, 1280-81 (11th Cir. 2004) (holding

that officers’ use of the hobble was not objectively unreason-

able when they “took advantage of a window of opportunity” in

hobbling the arrestee after pepper spray caused him to become

compliant).

20 No. 05-3470

may ultimately decide that the force exerted by Sergeant

Zimmerman, Officer Oakes and Officer Oliver was rea-

sonable, but this is for the jury to decide, not us. See Ellis,

999 F.2d at 247.

III. Conclusion

For the foregoing reasons, we AFFIRM the district court’s

denial of the defendants’ motion for summary judgment.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—1-10-07