Jamie Becker v. Zachary Effriechs

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 15-1363

JAMIE BECKER,

Plaintiff-Appellee,

v.

ZACHARY ELFREICH, individually

and as an Officer of the Evansville

Police Department,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Evansville Division.

No. 12-cv-00182 — William G. Hussman, Jr., Magistrate Judge.

____________________

ARGUED SEPTEMBER 17, 2015 — DECIDED MAY 12, 2016

____________________

Before FLAUM, MANION, and SYKES, Circuit Judges.

MANION, Circuit Judge. Jamie Becker sued Evansville, Indi-

ana police officer Zachary Elfreich under 42 U.S.C. § 1983, al-

leging Officer Elfreich used excessive force in arresting him in

violation of his Fourth Amendment rights. Becker claimed Of-

ficer Elfreich used excessive force because, after Becker had

surrendered, Officer Elfreich pulled him down three steps

2 No. 15-1363

and placed his knee on his back while allowing a police dog

to continue to bite him. Officer Elfreich moved for summary

judgment, arguing he was entitled to qualified immunity be-

cause his conduct did not constitute excessive force or, alter-

natively, that it did not violate clearly established constitu-

tional law. The district court denied Officer Elfreich’s motion

for summary judgment. Officer Elfreich appeals, interlocuto-

rily, arguing that he is entitled to qualified immunity. We con-

clude that based on the record, Officer Elfreich has not estab-

lished that he is entitled to qualified immunity. We affirm and

remand for further proceedings consistent with this opinion.

I.

On March 11, 2011, four Evansville Police Department of-

ficers went to the home of Brinda Becker in order to execute

an arrest warrant for her son, Jamie Becker, who was staying

at her house at that time. The arrest warrant alleged that three

weeks earlier Becker had held a knife to his brother-in-law’s

neck and threatened to kill him. One of the officers dispatched

was Officer Zachary Elfreich, who was a police dog handler.

Officer Elfreich initially guarded the back door of the house

with his German Shepherd, Axel, while other officers went to

the front of the house. While at the rear of the house, Officer

Elfreich saw an individual named Brian Mortis leaving the

home. Mortis told Officer Elfreich that Becker was inside the

house with his mother and her sister, Delores Pfister.

Meanwhile, at the front of the house officers spoke with

Brinda Becker and Pfister, informing them that they had a

warrant for Becker’s arrest. Brinda Becker called upstairs to

her son that the police were there to arrest him, and then she

and Pfister waited on the front porch. Brinda Becker also told

officers that Becker was alone in the house. The officers called

No. 15-1363 3

Officer Elfreich to the front of the house with Axel. After wait-

ing about 30 seconds and not seeing or hearing Jamie, Officer

Elfreich released Axel inside the house and directed the dog

to “find him.”

Officer Elfreich testified that Axel is trained, upon hearing

the command “find him,” to use the “bite-and-hold” tech-

nique. Officer Elfreich explained that using this technique,

Axel will bite the first person he finds, even if that person is

not the target of the search and even if the person has surren-

dered, and hold that person until Officer Elfreich commands

him to release. Officer Elfreich further testified that Axel is ca-

pable of inflicting “lethal force” and that there is a probability

of him doing so.

According to Officer Elfreich, prior to releasing Axel he

gave a loud, clear warning: “Police department K-9, come out

now or I will release my dog and you will get bit.” Officer

Elfreich claimed that he listened for a moment and heard

nothing so he repeated the warning but after hearing nothing

again, he released Axel. Officer Elfreich explained that he un-

leashed Axel about 30 seconds after he issued the first warn-

ing. Jamie Becker and Brinda Becker both testified that Officer

Elfreich did not give a warning. Brinda Becker was on the

front porch near the door at the time Officer Elfreich entered

and Jamie Becker explained that he would have heard the

warning had one been given because there was a vent in his

second-floor room which was directly above the front door.

Jamie Becker testified in his deposition that at the time the

police arrived he was sleeping upstairs in his bedroom, and

upon hearing his mother’s announcement that the police were

there to arrest him, he replied he was getting dressed and

would be down. He further explained that within two

4 No. 15-1363

minutes of his mother’s announcement, he began descending

the stairs with his hands on top of his head so officers knew

he was surrendering. Becker’s girlfriend followed. 1 As they

were descending the stairs, Officer Elfreich released Axel.

Axel immediately ran from the front door through the house

to the stairway and began heading up the stairs which the duo

were then descending. Axel encountered Becker as he reached

a landing on the stairs, about three steps from the bottom, and

Axel bit Becker’s left ankle. At that point Becker shouted,

“Call the dog off. I’m coming towards you.” Officer Elfreich,

who had lost sight of Axel for the two seconds it took Axel to

run from the front door to the stairs, then ran to the stairs,

following Becker’s voice. He saw that Axel had bitten Becker’s

leg and that Becker had his hands on his head, but did not

command Axel to release Becker. Rather, Officer Elfreich or-

dered Becker to get on the floor. Becker claims he could not

hear the command because his girlfriend was screaming. Of-

ficer Elfreich then grabbed Becker by his shirt collar and

yanked him down the last few steps onto the floor, where he

landed hard on his chest and head.

Becker claims that as Officer Elfreich pulled him down the

steps Axel lost his grip on his leg, but upon hitting the ground

Axel bit him again harder and then continued to bite him

while violently shaking his head. Becker testified in his depo-

sition that he lay still on the ground with his hands behind his

back, while Officer Elfreich continued to allow Axel to bite his

1

Officer Elfreich testified that based on the officers’ conversations

with Becker’s mother, aunt, and Mortis, they believed Becker was the only

person left in the house. He further stated that had he known Becker’s

girlfriend was also inside, he would not have released the dog.

No. 15-1363 5

leg. Becker further explained that Officer Elfreich told him

that he could not have the dog release him until he was hand-

cuffed. Officer Elfreich placed his knee in Becker’s back, hand-

cuffed him, and only then ordered Axel to release his grip.

Becker was not sure how long Axel bit him, but his girlfriend

estimated a few minutes. Either way, Axel severely injured

Becker, with Becker’s calf “torn out completely.” Officers

transported Becker to a local hospital for treatment. At the

hospital, a member of the medical staff told Becker it was the

worst dog bite they had seen in twenty-three years. Becker re-

quired surgery and remained hospitalized for two or three

days. Becker suffered permanent muscle and nerve damage

and continues to suffer daily with pain.

Becker later filed suit against both Officer Elfreich and the

City of Evansville. While he alleged several federal and state

law claims against the defendants, the only issue on appeal is

Becker’s Fourth Amendment excessive force claim against Of-

ficer Elfreich. Additionally, while Becker had claimed that Of-

ficer Elfreich used excessive force in releasing Axel into the

house and directing Axel to bite and hold him, the magistrate

judge (hearing the case by consent of the parties) granted Of-

ficer Elfreich qualified immunity on that claim, and the initial

release of Axel is not an issue on appeal. Rather, on appeal is

Becker’s claim that after he had surrendered with his hands

on his head, Officer Elfreich used excessive force by pulling

him down the steps and placing his knee on his back while

allowing Axel to continue to bite him. While Officer Elfreich

also moved for summary judgment on Becker’s excessive

force claim premised on the post-surrender force, the magis-

trate judge denied Officer Elfreich’s qualified immunity on

that claim. Officer Elfreich appeals. Because qualified immun-

ity provides protection both from liability and suit, we have

6 No. 15-1363

interlocutory jurisdiction over this appeal. Hanes v. Zurick, 578

F.3d 491, 493 (7th Cir. 2009).

II.

On appeal, Officer Elfreich argues that he is entitled to

qualified immunity on Becker’s excessive force claim. “We re-

view the district court’s denial of summary judgment on qual-

ified immunity grounds de novo, asking whether viewing the

facts in the light most favorable to the plaintiff, the defend-

ant[] [was] nonetheless entitled to qualified immunity as a

matter of law.” Estate of Escobedo v. Bender, 600 F.3d 770, 778

(7th Cir. 2010). In determining whether a defendant is entitled

to qualified immunity, we “undertake a two-part analysis,

asking: (1) whether the facts alleged, ‘[t]aken in the light most

favorable to the party asserting the injury, … show the of-

ficer’s conduct violated a constitutional right’; and (2)

whether the right was clearly established at the time of its al-

leged violation.” Bd. v Farnham, 394 F.3d 469, 477 (7th Cir.

2005) (alteration in original) (quoting Saucier v. Katz, 533 U.S.

194, 201 (2001)).

A. Constitutional Violation

In this case, Becker claims Officer Elfreich used excessive

force when arresting him. We analyze excessive force claims

under the Fourth Amendment’s “reasonableness” standard.

Lawrence v. Kenosha Cty., 391 F.3d 837, 843 (7th Cir. 2004). “A

court determines whether an officer has used excessive force

in effectuating an arrest based on a standard of ‘objective rea-

sonableness[.]’” Payne v. Pauley, 337 F.3d 767, 778 (7th Cir.

2003) (quoting Graham v. Connor, 490 U.S. 386, 396-97 (1989)).

“A police officer’s use of force is unconstitutional if, ‘judging

from the totality of circumstances at the time of the arrest, the

No. 15-1363 7

officer used greater force than was reasonably necessary to

make the arrest.’” Id., 337 F.3d at 778 (quoting Lester v. City of

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

specific and balances the intrusion on the individual against

the governmental interests at stake.” Id.

In conducting this analysis, it is “useful to pin down the

quantum of force” used by Officer Elfreich because that “rep-

resents the nature and significance of the governmental intru-

sion” on Becker’s Fourth Amendment rights. Abbott v. Sanga-

mon Cty., Ill., 705 F.3d 706, 725 (7th Cir. 2013). However, as

discussed below, at this stage it is impossible to precisely

quantify the amount of force Officer Elfreich used—whether

it was deadly force, or a lesser quantum of force.

“For a particular application of force to be classified as

‘deadly,’ it must at least carry with it a substantial risk of caus-

ing death or serious bodily harm.” Phillips v. Cmty. Ins. Corp., 678

F.3d 513, 521 (7th Cir. 2012) (emphasis in original) (quoting

Estate of Phillips v. City of Milwaukee, 123 F.3d 586, 593 (7th Cir.

1997)). Here, Becker suffered serious bodily harm: Axel tore

his calf out, causing permanent muscle and nerve damage. He

continues to suffer pain on a daily basis and has difficulty us-

ing his leg. While a jury may consider the injury suffered as

“evidence of the degree of force imposed,” McAllister v. Price,

615 F.3d 877, 882 (7th Cir. 2010), there must nonetheless be a

substantial risk of serious bodily harm (or death) for the force

to be considered deadly. Thus, for example, in Robinette v.

Barnes, 854 F.2d 909 (6th Cir. 1988), the Sixth Circuit held that

the use of a bite-and-hold technique did not constitute deadly

force even though the suspect died. The court reasoned that

use of the police dog in that case did not carry with it a “sub-

stantial risk of causing death or serious bodily harm” because

8 No. 15-1363

the dog had been trained to seize suspects by the arm and

then wait for an officer to secure the arrestee. Unfortunately,

the suspect in that case was hiding under a car and the dog

seized him by the only part he could reach—his neck—which

caused his death.

In this case, though, based on the record, we cannot deter-

mine whether using Axel carried a substantial risk of causing

serious bodily injury. Unlike in Robinette, Axel did not appear

to be trained to bite any specific part of a suspect’s body. Ra-

ther, when asked if Axel was trained to bite in any specific

location, Officer Elfreich responded that the dog would prob-

ably bite “the first thing he comes in contact with.” Nor does

it appear Axel was trained to seize the suspect and then wait

for the officer to secure him, as Axel bit Becker twice and the

second time ferociously, tearing his calf out. See Cyrus v. Town

of Mukwonago, 624 F.3d 856, 863 (7th Cir. 2010) (“Force also

becomes increasingly severe the more often it is used; striking

a resisting suspect once is not the same as striking him ten

times.”). And Officer Elfreich testified in his deposition that

Axel is capable of inflicting “lethal force” and that “there is a

probability of him doing so.” Whether the probability is a

“substantial risk” is unclear from this testimony because we

do not know the amount of force Axel was trained to use and

whether, in the field, Axel performed as trained. We also do

not know whether the cumulative risk created by Officer

Elfreich’s use of force in pulling Becker down the steps, in

conjunction with Axel’s continuing to bite him, created such

a risk. There are just too many unknowns for this court to con-

clude, as a matter of law, that Officer Elfreich’s use of Axel

constituted deadly force.

No. 15-1363 9

Of course, that also means that we are not holding the

“bite and hold” technique is per se deadly force. See, e.g., John-

son v. Scott, 576 F.3d 658, 661 (7th Cir. 2009); Tilson v. City of

Elkhart, Ind. 96 F.Appx. 413, 416 (7th Cir. 2004). Rather,

whether a “bite and hold” technique constitutes deadly force

“depends on how [the dog] is trained to behave when con-

fronting a suspect. For example, a dog trained to find a sus-

pect and bark until the dog’s handler arrives would plainly

not qualify as an instrument of deadly force. But a German

Shepherd that is behaviorally conditioned to go directly for a

suspect’s jugular would surely qualify as an instrument of

deadly force.” Chew v. Gates, 27 F.3d 1432, 1453 (9th Cir. 1994)

(Norris, J.). See also id., 27 F.3d at 1441–42 (Reinhardt, J.) (not-

ing that a dog trained to “bite and hold” uses “severe” force,

but not deciding whether it was “deadly”); id. at 1453–55 n.5

(Norris, J.) (concluding that whether the use of a police dog

constitutes deadly force is a question of fact). This case,

though, does not present either extreme. Rather, based on the

record, we cannot say whether the use of the “bite and hold”

constituted deadly force. But the force was clearly force at the

higher end of the spectrum, and the government’s intrusion

on Becker’s rights was thus significant.

Against this significant intrusion we must balance the

government’s interest at stake, because “[s]uch force, whether

or not it inherently carries a substantial risk of serious bodily

harm, ‘is not to be deployed lightly.’” Phillips, 678 F.3d at 522

(quoting Deorle v. Rutherford, 272 F.3d 1272, 1280 (9th Cir.

2001)). In considering the government interests at stake, this

court should consider “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

10 No. 15-1363

resisting arrest or attempting to evade arrest by flight.” Gra-

ham, 490 U.S. at 396. In this case, Becker’s underlying crime

was a serious felony—he was charged with holding a knife to

his brother-in-law’s throat. But that alleged crime took place

several weeks earlier and there was no evidence that Becker

was still armed at the time officers executed the arrest war-

rant. Officer Elfreich responds that Becker was concealing

himself in the house and could ambush officers when they en-

tered the home. That may have justified the officers using

Axel initially to locate Becker, but Becker is no longer chal-

lenging the initial release of Axel. Rather, Becker argues Of-

ficer Elfreich used excessive force by allowing the police dog

to continue to bite him after he “had surrendered peacefully

and without resistance, ….” Appellee Brief at 8.

Reading the facts in the light most favorable to Becker, af-

ter his mother told him police were there to arrest him, Becker

got dressed and started down the stairs within two minutes

with his hands above his head. And just two seconds after he

released Axel, Officer Elfreich encountered Becker toward the

bottom of the stairs with his hands above his head. At this

point, Officer Elfreich should have recognized that Becker

was not hiding in the house but was in the process of surren-

dering. Further, when Officer Elfreich saw Becker on the stairs

Becker had his hands in full view over his head and kept his

hands there even while being bitten by Axel. Becker did not

exhibit any sort of aggressive behavior toward Officer

Elfreich or anyone else. Phillips, 678 F.3d at 525. Nor was

Becker actively resisting arrest or attempting to evade arrest

by flight. Accordingly, while the initial release of Axel to find

Becker may have been justified because the officers believed

Becker was concealing himself in the house, once it became

clear that Becker was not concealing himself, but was actually

No. 15-1363 11

near the bottom of the staircase about 30 seconds after Officer

Elfreich purportedly told him to come down, the force used

by Officer Elfreich was no longer reasonable. Cyrus, 624 F.3d

at 863 (“[A]s the threat changes, so too should the degree of

force.”)

In response, Officer Elfreich stresses that Becker did not

obey his command to get on the ground. Becker claims that,

between his girlfriend’s screaming and the dog’s growling, he

did not hear the command. But even if Becker had heard the

command, at most Becker’s failure to get to the ground—if

that were possible with Axel biting his ankle—would “have

been passive noncompliance of a different nature than the

struggling that we have found warrants escalation of force.”

Phillips, 678 F.3d at 525. “[W]illful non-compliance [is] not the

same as ‘actively resisting’ but instead a passive ‘resistance

requiring the minimal use of force.’” Id. at 525 (emphasis

omitted) (quoting Smith v. Ball Univ., 295 F.3d 763, 771 (7th

Cir. 2002)).

Officer Elfreich also argues that Becker might have been

armed and that until Becker had been handcuffed, he still pre-

sented a risk because he might have access to a weapon. How-

ever, in every arrest there is a possibility that the individual is

armed and that does not justify allowing Axel to continue to

bite Becker while Officer Elfreich pulled Becker down the

three steps and handcuffed him. See Ellis v. Wynalda, 999 F.2d

243, 247 (7th Cir. 1993) (“While it was possible that [the sus-

pect] carried a concealed weapon, as much as it is possible

that every felon might be carrying a weapon, [the officer] had

no particular reason to believe that [the suspect] was

armed.”). Further, Officer Elfreich was himself armed and

was not alone: There were two other officers in the house by

12 No. 15-1363

the time Officer Elfreich reached the staircase, and reading the

evidence in Becker’s favor, there was another officer in the

same room as Officer Elfreich while Axel tore at Becker’s leg.

Thus, “this is not the case of a single officer attempting to con-

trol and detain multiple suspects.” Abbott, 705 F.3d at 731.

“Force is reasonable only when exercised in proportion to the

threat posed,” Cyrus, 624 F.3d at 863, and under the totality of

the circumstances, we conclude that a jury could find that Of-

ficer Elfreich used excessive force. See, e.g., Phillips, 678 F.3d at

527.

Here, we pause to stress that it is the “totality of the cir-

cumstances” considered in determining the reasonableness of

the force used. Sallenger v. Oakes, 473 F.3d 731, 739 (7th Cir.

2007) (internal marks omitted). But the district court consid-

ered each aspect of force used separately—the continuation of

the bite, Officer Elfreich pulling Becker down three steps, and

Officer Elfreich placing a knee in Becker’s back while hand-

cuffing him—and found that because Becker had surren-

dered, each exertion of force, in isolation, was unreasonable.

But remove the dog, and Officer Elfreich might have acted

reasonably in pulling Becker down three steps and placing a

knee in his back to handcuff him. Becker was charged with a

serious offense and he did not obey Officer Elfreich’s com-

mand to get on the ground. There was also the presence of an

unknown individual, and the uncertainty of whether Becker

was armed. Placing a knee on an individual’s back could be

deadly depending on the degree of force, but here Becker does

not maintain he suffered a back injury. Under the facts as a

whole, it was unreasonable for Officer Elfreich to pull Becker

down three steps and place a knee in his back while allowing

Axel to violently bite his leg.

No. 15-1363 13

B. Qualified Immunity

Taking the facts in the light most favorable to Becker, a

jury could reasonably conclude that Officer Elfreich had vio-

lated Becker’s Fourth Amendment rights by using excessive

force in arresting him. Officer Elfreich, however, argues that

he is immune from suit because it was not clearly established

at the time he arrested Becker that the force he used violated

Becker’s Fourth Amendment rights.

“[I]t was of course clearly established that a police officer

may not use excessive force in arresting an individual.”

Holmes v. Vill. of Hoffman Estate, 511 F.3d 673, 687 (7th Cir.

2001). But “while the right to be free from excessive force is

clearly established in a general sense, the right to be free from

the degree of force employed in a particular situation may not

have been clear to a reasonable officer at the scene.” Bush v.

Strain, 513 F.3d 492, 502 (5th Cir. 2008) (citation omitted). To

be clearly established the “contours of the right must be suffi-

ciently clear that a reasonable official would understand that

what he is doing violates the 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 that in the light of pre-existing law the unlaw-

fulness must be apparent.” Anderson v. Creighton, 483 U.S. 635,

640 (1987).

Becker was arrested in 2011, and prior to 2011 it was well-

established that “police officers cannot continue to use force

once a suspect is subdued.” Abbott, 705 F.3d at 732. And “it

was well-established in this circuit that police officers could

not use significant force on nonresisting or passively resisting

suspects.” Id. Further, it was clearly established that only min-

14 No. 15-1363

imal force is warranted where the accused is passively resist-

ing. Phillips, 678 F.3d at 529. Additionally, we have previously

held that it was clearly established “that officers could not re-

peatedly use an impact weapon to beat into submission a per-

son who was not resisting or was merely passively resisting

officers’ orders.” Abbott, 705 F.3d at 733.

In this case, viewing the facts in the light most favorable

to Becker, he was a nonresisting (or at most passively resist-

ing) suspect when Officer Elfreich saw him near the bottom

of the staircase. Yet Officer Elfreich pulled Becker down the

steps, placed a knee in his back, and continued to allow Axel

to bite him. Case law makes clear that officers cannot use sig-

nificant force on a nonresisting or passively resisting suspect.

Further, as we have often said, “a case directly on point is not

required for a right to be clearly established and ‘officials can

still be on notice that their conduct violates established law

even in novel factual circumstances.’” Phillips, 678 F.3d at 528

(quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)). Thus, the

relevant case law did not need to involve a police dog in order

to clearly establish the principle that you cannot allow a dog

to violently attack such a suspect. 2

In response, Officer Elfreich relies on Johnson v. Scott, 576

F.3d 658, 661 (7th Cir. 2009), arguing that in that case this court

“held that allowing a K-9 to continue with a bite and hold un-

2

This case does not involve a split-second delay between the officer

pulling Becker to the ground and directing Axel to release Becker. Rather,

Officer Elfreich had time to tell Becker he would not order Axel to release

him until he was handcuffed, and a witness estimated that the dog con-

tinued to violently bite Becker for up to three minutes.

No. 15-1363 15

til an officer secures a suspect with handcuffs is neither un-

reasonable nor unconstitutional.” Appellant Brief at 30–31.

Officer Elfreich stresses that in Johnson, the arrestee was orig-

inally non-compliant, but “then communicated a willingness

to surrender.” Appellant Brief at 31. Yet, as Officer Elfreich

notes, this court held that “not all surrenders are genuine …

and the police are entitled to err on the side of caution when

faced with an uncertain or threatening situation.” Johnson, 576

F.3d at 659.

Officer Elfreich’s reliance on Johnson is misplaced. In John-

son, police attempted to pull over the suspect in connection

with a reported shooting. The suspect evaded police at first,

but then was stopped by a roadblock. He jumped out of his

car and escaped into a residential yard. It was only when the

suspect was unable to escape over a fence that he turned and

said he was surrendering. At that time a police dog was in

pursuit and about six to eight feet away from the suspect. The

officer allowed the dog to seize the suspect and bite him until

he was handcuffed, about five to ten seconds later. Johnson

thus involved a fleeing suspect, wanted for a suspected shoot-

ing which had just occurred. Conversely, in this case, Becker

was not fleeing and officers were attempting to arrest Becker

for a crime which had occurred nearly a month previously;

Becker was out in the open; and he surrendered with his

hands above his head. Further, at the time of Becker’s arrest,

the case law was clearly established that more force may be

used for fleeing suspects than for suspects that are at most

passively resisting arrest. Thus, Johnson does not alter our

analysis. Rather, the case law clearly establishes that an officer

cannot use more than minimal force given Becker’s version of

facts—that he was at most a passively resisting suspect.

16 No. 15-1363

III.

When Evansville police attempted to arrest Jamie Becker,

Officer Elfreich released his police dog under the belief that

Becker was hiding in the house. However, two seconds later,

Officer Elfreich discovered Becker had been descending the

stairs to surrender with his hands above his head. Nonethe-

less, Officer Elfreich continued to allow the police dog to bite

Becker, while pulling him down three steps and placing his

knee on his back and handcuffing him. And Becker suffered

serious bodily injury as a result of the dog bite. While it is un-

clear from the record whether Axel presented a substantial

risk of serious risk bodily harm (and thus deadly force), the

force was clearly at the more severe end of the force spectrum.

A jury could reasonably find such force was excessive. Fur-

ther, because it was clearly established at the time of Becker’s

arrest that no more than minimal force was permissible to ar-

rest a non-resisting, or passively resisting, suspect, Officer

Elfreich was not entitled to qualified immunity on this record.

For these and the forgoing reasons, we AFFIRM and

REMAND for further proceedings consistent with this opin-

ion.