George Dawson v. Michael Brown

In the

United States Court of Appeals

For the Seventh Circuit

No. 15-1517

GEORGE H. DAWSON,

Plaintiff-Appellant,

v.

MICHAEL BROWN, Springfield Illinois

Police Department,

Defendant-Appellee.

Appeal from the United States District Court for the

Central District of Illinois.

No. 3:12-cv-03330-RM-TSH — Richard Mills, Judge.

ARGUED SEPTEMBER 11, 2015 — DECIDED OCTOBER 7, 2015

Before BAUER, WILLIAMS, and HAMILTON, Circuit Judges.

BAUER, Circuit Judge. Plaintiff-appellant, George H. Dawson

(“Dawson”), filed a six-count complaint that included, among

other claims, a civil rights action pursuant to 42 U.S.C. § 1983

against Officers Michael Brown and Chance Warnisher of the

Springfield Police Department for use of excessive force. The

district court granted summary judgment in favor of the

defendants on all six counts. On appeal, Dawson only chal-

2 No. 15-1517

lenges the district court’s grant of summary judgment in favor

of Officer Brown on the excessive force claim. For the reasons

that follow, we affirm.

I. BACKGROUND

On the evening of December 14, 2011, Officer Steve Stirmell

of the Jerome Police Department observed a white pickup

truck speeding on Iles Avenue. Officer Stirmell followed the

truck and activated his sirens. The driver of the truck, Greg

Dawson (“Greg”), ignored the sirens and continued driving.

As a result, Officer Stirmell radioed for assistance. Around

10:28 p.m., Officer Brown of the Springfield Police Department

received a dispatch regarding Greg’s vehicle fleeing from

Officer Stirmell. Officer Warnisher of the Springfield Police

Department also received a dispatch regarding the pursuit.

Both officers responded to assist Officer Stirmell.

Eventually, Greg drove to his father’s house on Lowell

Avenue in Springfield, Illinois. Dawson is Greg’s father. When

Greg arrived at the house, he ran from his truck and jumped

the fence into his father’s backyard. At this point, Officer

Stirmell ceased pursuit and began searching Greg’s truck.

Shortly thereafter, Officers Brown and Warnisher, as well as

four or five other officers, arrived at the house. Several officers,

including Officer Warnisher, then searched the backyard to

locate Greg. The officers knew Greg had refused to stop for

Officer Stirmell, but were also under the mistaken impression

that Greg had an outstanding arrest warrant for involvement

with dangerous drugs.1

1

The officers had confused him with a different Greg Dawson.

No. 15-1517 3

Sometime after the officers arrived, Dawson (who had been

asleep in his home) received a call from his neighbor that police

were in his yard. Dawson went out and saw several officers

standing outside his front door. The officers asked Dawson

whether he knew where Greg was, to which he replied he did

not. Dawson stepped out of his house and sat on the front

stoop. Dawson’s front stoop faced out towards Lowell Avenue,

while his driveway was parallel to his stoop and ran along the

side of his house and led into a detached garage in the back. At

an officer’s request, Dawson called Greg’s cell phone to locate

him, but Greg did not answer. Dawson remained outside and

answered the officers’ other questions. He informed them that

he was 72 years old, and that his son had no involvement in

drug dealing. While Dawson was speaking with the police

from his front stoop, Greg re-appeared down the street

running towards the side door of Dawson’s house that faced

the driveway.

At this point, the depositions of Dawson, Officer Brown,

Officer Stirmell, and Officer Warnisher differ on the exact

details of what occurred.

According to Dawson’s deposition testimony, after he saw

Greg run towards the side door of the house, he got up from

the front stoop and went around the corner of the house. Once

he rounded the corner, he observed Officer Warnisher and

possibly another officer attempting to arrest Greg on the

driveway outside the side door of the house; Greg was

physically resisting arrest. During the struggle, Dawson

observed Officer Warnisher use his taser on Greg. Since Greg

continued to resist arrest, Dawson believed Officer Warnisher

was going to deploy it on Greg a second time. As a result,

4 No. 15-1517

Dawson walked up to Officer Warnisher and “showed [his]

hands” to indicate he did not have any weapons. As he

approached, he stated, “Please don’t kill him.” Dawson came

within three or four feet of Officer Warnisher, who was still

attempting to subdue Greg. Officer Warnisher then kicked

Dawson in his side. This caused Dawson to stumble back a few

feet, but he did not fall. Rather, he testified that he “snapped

right back,” however, he was then “immediately” tackled from

behind by Officer Brown. Dawson testified this occurred

within “a second” after he was kicked.

According to Officer Brown’s deposition testimony, he was

searching through the neighbor’s yard when Greg re-appeared

running towards the side of the house. Officer Brown rounded

the corner of the neighbor’s house and ran up Dawson’s

driveway. As he ran up the driveway, he observed Greg on the

ground while Officers Warnisher and Stirmell struggled to

handcuff him. During the struggle, Officer Brown observed

Dawson approaching Officer Warnisher with his arms ex-

tended and exclaiming, “That’s my son.” Officer Brown told

Dawson to “get back” and pushed him away, causing Dawson

to trip and fall onto the driveway. According to Officer Brown,

the entire time between when he rounded the corner to when

he pushed Dawson was between two to three seconds. In

addition, Officer Brown testified that he did not see Officer

Warnisher kick Dawson.

According to Officer Stirmell’s deposition testimony, he

heard yelling near the side of the house and ran to the scene.

There, he saw Officer Warnisher struggling with Greg. Officer

Stirmell assisted by grabbing Greg’s legs and tackling him to

the ground. Thereafter, Officer Brown arrived and used his

No. 15-1517 5

taser to subdue Greg. Immediately after Greg was tased,

Dawson approached Officer Stirmell from behind, placed his

hand on Officer Stirmell’s shoulder and stated, “Leave my son

alone, leave my son alone, don’t hurt him.” Officer Stirmell

testified that he was aware that Officer Brown took action to

get Dawson away from Officer Stirmell, but he did not see

what occurred.

According to Officer Warnisher’s deposition testimony, he

and another officer with a canine unit were searching Daw-

son’s backyard for Greg. The canine unit quickly located Greg,

who then ran from the officers and into several of his neigh-

bors’ backyards. Officer Warnisher pursued him on foot. After

running through several yards, Greg eventually turned around

and began running back towards Dawson’s house. As he ran

back, he jumped over the fence surrounding Dawson’s

backyard. While he was going over the fence, Officer

Warnisher deployed his taser on Greg. However, this was

ineffective; Greg made it over the fence and continued fleeing.

Officer Warnisher jumped the fence as well and pursued Greg

as he ran towards Dawson’s house. Once Greg reached the side

of Dawson’s house, he opened the side door, but Officer

Warnisher grabbed him in a bear hug before he could enter. As

Officer Warnisher held Greg, Dawson appeared and shouted,

“Let go of my son.” Officer Warnisher turned so that he was in

between Greg and Dawson. Once Dawson came within three

or four feet, Officer Warnisher yelled, “Get back,” and kicked

Dawson in his torso. After Officer Warnisher kicked Dawson,

Officer Stirmell arrived to help wrestle Greg to the ground. As

the two officers struggled to handcuff Greg, Officer Warnisher

heard Officer Brown warn Dawson to step back. Over his

6 No. 15-1517

shoulder, Officer Warnisher saw Dawson standing as Officer

Brown pushed him away. According to Officer Warnisher, the

entire incident from his initial contact with Greg to when both

Greg and Dawson were in custody lasted between ten to

twenty seconds.

Following this incident, Dawson was handcuffed and

arrested for resisting arrest and obstruction. However, he was

never formally charged. After his arrest, he was driven to the

police station, where he posted bond. Afterwards, his daughter

took him to the emergency room to treat the injuries he

sustained.

On December 3, 2012, Dawson filed a six-count complaint

in the United States District Court for the Central District of

Illinois. Count I was a § 1983 claim against Officer Warnisher

for use of excessive force. Count II was an assault and battery

claim against Officer Warnisher. Count III was a § 1983 claim

against Officer Brown for use of excessive force. Count IV was

an assault and battery claim against Officer Brown. Count V

was a § 1983 claim against Officer Stirmell for failure to

intervene. Count VI was a § 1983 claim against Officers

Warnisher, Brown, and Stirmell for conspiracy to interfere with

Dawson’s civil rights. Officers Warnisher and Brown moved

for summary judgment on Counts I–IV and VI, which was

granted. Officer Stirmell moved for summary judgment for the

claims asserted against him in a separate proceeding, which

was also granted.

II. DISCUSSION

On appeal, Dawson challenges whether it was proper for

the district court to grant summary judgment in favor of

No. 15-1517 7

Officer Brown regarding the excessive force issue. Specifically,

Dawson argues that the district court improperly resolved

disputed issues of material fact, failed to construe the facts in

the light most favorable to Dawson, and that Officer Brown

was not entitled to qualified immunity.

We review the district court’s grant of summary judgment

de novo and construe all facts as well as all reasonable infer-

ences in the light most favorable to the non-moving party. See

Fitzgerald v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013). However,

“favor toward the nonmoving party does not extend to

drawing inferences that are supported by only speculation or

conjecture.” Id. (citing Harper v. C.R. England, Inc., 687 F.3d 297,

306 (7th Cir. 2012)).

Summary judgment is appropriate if “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). However,

“[t]he mere existence of some alleged factual dispute” is

insufficient to defeat a motion for summary judgment. See

Lawrence v. Kenosha County, 391 F.3d 837, 842 (7th Cir. 2004)

(emphasis in original). A genuine dispute to a material fact

exists if “the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Id. (citation omit-

ted). Material facts are those that “‘might affect the outcome of

the suit’ under applicable substantive law.” Id. (citation

omitted).

Excessive force claims are reviewed under the Fourth

Amendment’s objective reasonableness standard. See Graham

v. Connor, 490 U.S. 386, 395 (1989). Whether a police officer

used excessive force is analyzed from the perspective of a

8 No. 15-1517

reasonable officer under the circumstances, rather than

examining the officer’s actions in hindsight. Id. at 396 (“‘Not

every push or shove, even if it may later seem unnecessary in

the peace of a judge’s chambers,’ violates the Fourth Amend-

ment.”) (citation omitted). The court addresses several factors

to determine the reasonableness of an officer’s actions under

the circumstances, including the severity of the crime; whether

the suspect posed an immediate threat to the officers or others;

whether the suspect was resisting or evading arrest; whether

the individual was under arrest or suspected of committing a

crime; whether the individual was armed; and whether the

person was interfering or attempting to interfere with the

officer’s duties. See Padula v. Leimbach, 656 F.3d 595, 602 (7th

Cir. 2011) (citation omitted). However, the court’s ultimate goal

in examining these factors is to determine “whether the force

used to seize the suspect was excessive in relation to the

danger he posed … if left unattended.” Id. (citation omitted).

Finally, if there are sufficient undisputed material facts to

establish that the officer acted reasonably under the circum-

stances, then the court must resolve the issue as a matter of

law, rather than allow a jury to “second-guess” the officer’s

actions. See Bell v. Irwin, 321 F.3d 637, 640 (7th Cir. 2003).

Here, the undisputed material facts viewed in the light

most favorable to Dawson establish that Dawson’s son Greg

was evading arrest. After Greg ran towards the side door of

the house, Officer Warnisher grabbed him to prevent his

escape. However, Greg continued to physically resist arrest.

Officer Warnisher used his taser on Greg at least once, but it

was ineffective. At some point during this struggle, Dawson

approached Officer Warnisher while he was still trying to

No. 15-1517 9

subdue Greg. Dawson showed his hands as he approached

Officer Warnisher and exclaimed, “Please don’t kill him.” He

came within three or four feet of Officer Warnisher, who then

kicked him away.

In addition, it is undisputed that Officer Brown tackled

Dawson into the driveway. According to Dawson, this tackle

occurred “immediately” after he was kicked back by Officer

Warnisher. According to Officer Brown, it was as Dawson was

approaching Officer Warnisher. According to Officer Stirmell,

it was after Dawson approached and put his hand on Officer

Stirmell’s shoulder. According to Officer Warnisher, it was

after he kicked Dawson and while he and Officer Stirmell were

trying to subdue Greg. Although the parties disagree on the

exact timeline of the events, it is clear that the entire incident

lasted mere seconds. Thus, it is a reasonable inference that

Officer Brown tackled Dawson either as Dawson was ap-

proaching Officer Warnisher, or seconds after Dawson had

approached Officer Warnisher.

This factual dispute, however, does not create a genuine

issue of material fact because under any view it was reasonable

for Officer Brown to believe that Dawson was attempting to

interfere with a lawful arrest. Dawson’s testimony acknowl-

edges that he approached Officer Warnisher as Officer

Warnisher struggled to arrest a suspect who had previously

evaded capture and was still physically resisting arrest. Officer

Warnisher was in a dangerous position due to his inability to

subdue a non-compliant suspect. Dawson came within three to

four feet of Officer Warnisher while he was in this dangerous

situation. In addition, Dawson communicated that he was

afraid Officer Warnisher was going to kill his son. As the

10 No. 15-1517

district court properly found, a reasonable officer under these

circumstances could reasonably believe it was necessary to

tackle Dawson to protect Officer Warnisher from Dawson’s

interference with a lawful arrest. See Smith v. Ball State Univer-

sity, 295 F.3d 763, 770 (7th Cir. 2002) (“When police officers face

what is essentially a fluid situation, they are entitled to

graduate their response to meet the demands of the circum-

stances confronting them.”) (citation omitted).

Dawson argues that the district court improperly resolved

disputed issues of material fact and failed to view the facts in

the light most favorable to Dawson. Specifically, Dawson

combines Officer Brown’s testimony that Officer Brown did not

see Officer Warnisher kick Dawson, with Dawson’s testimony

that Officer Brown tackled him immediately after Officer

Warnisher kicked him. Under this combination, Dawson claims

that the district court should have assumed Officer Brown did

not observe Dawson approach Officer Warnisher or hear

Dawson state anything to Officer Warnisher. Dawson supports

this claim by arguing that according to Dawson’s testimony, he

approached Officer Warnisher and stated, “Please don’t kill

him” before he was kicked; while Officer Brown testified that

he did not see Officer Warnisher kick Dawson. Therefore,

Dawson believes the court should assume that Officer Brown

did not arrive until after Dawson was kicked. Thus, under

Dawson’s analysis, the district court could only view the

evidence in the light most favorable to Dawson by assuming

that when Officer Brown rounded the corner he only saw

Dawson straightening himself up as he stood six to seven feet

away from Officers Warnisher and Stirmell, who were strug-

gling to arrest Greg. Further, under Dawson’s view, the district

No. 15-1517 11

court should have assumed Officer Brown then immediately

tackled Dawson to the ground without any knowledge of

Dawson’s prior interaction with Officer Warnisher that

occurred seconds earlier.

Although we must view the evidence in the light most

favorable to Dawson, he is only entitled to reasonable inferences

from the facts presented, not those only supported by specula-

tion or conjecture. See Fitzgerald, 707 F.3d at 730 (emphasis

added). If the court accepted Dawson’s testimony that he was

tackled “immediately” after he was kicked by Officer

Warnisher, then no reasonable juror could find that Officer

Brown was unaware that Dawson had just approached the

officers struggling to arrest Greg. However, if the court

rejected Dawson’s testimony, then the only other evidence a

reasonable juror could rely upon comes from the officers’

testimony. According to the officers, the tackle occurred either

as Dawson was approaching Officer Warnisher, when Dawson

placed his hand on Officer Stirmell, or as Dawson stood over

Officer Warnisher’s shoulder while he struggled to arrest Greg.

In any of these scenarios, the force used was constitutional

because a reasonable officer could have reasonably believed

that Dawson was interfering with a lawful arrest. Thus, even

with the facts and inferences viewed in his favor, Dawson fails

to establish a coherent narrative from the testimony presented

that is sufficient to withstand summary judgment.

Therefore, we hold that Officer Brown did not use excessive

force, but rather acted as a reasonable officer under the

circumstances. Also, since Officer Brown did not violate

Dawson’s Fourth Amendment rights, it is unnecessary to

address whether he was entitled to qualified immunity. As a

12 No. 15-1517

result, the district court did not err in granting summary

judgment in favor of Officer Brown.

III. CONCLUSION

For the foregoing reasons, the judgment of the district court

is AFFIRMED.