Craig Strand v. Curtis Minchuk

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 18-1514

CRAIG STRAND,

Plaintiff-Appellee,

v.

CURTIS MINCHUK,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Indiana, Hammond Division.

No. 2:15-cv-149 — James T. Moody, Judge.

____________________

ARGUED AUGUST 7, 2018 — DECIDED NOVEMBER 8, 2018

AS AMENDED ON PETITION FOR REHEARING DECEMBER 6, 2018

____________________

Before KANNE, SCUDDER, and ST. EVE, Circuit Judges.

SCUDDER, Circuit Judge. We consider whether the district

court erred at summary judgment in denying qualified im-

munity to a police officer who, in the context of an argument

and fist fight over parking tickets, shot a semi-truck driver.

The officer fired the shot after the driver stopped fighting,

stepped back from the officer, and—with his hands in the

air—twice said “I surrender.” The district court concluded

2 No. 18-1514

that a material question of fact existed as to whether the driver

continued to pose a threat at the exact moment the officer fired

the shot.

We affirm. We cannot read the facts in the light most fa-

vorable to the plaintiff and, on the record as it presently

stands, conclude as a matter of law that the officer is entitled

to qualified immunity. Doing so would mark a stark depar-

ture from clearly established law regarding an officer’s use of

deadly force. A trial is necessary to determine the precise

timeline and circumstances leading to and surrounding the

officer’s deployment of such force.

I

A

Our retelling of the facts tracks the district court’s account

at summary judgment. See Estate of Clark v. Walker, 865 F.3d

544, 547 (7th Cir. 2017).

Craig Strand drives an 18-wheeler. On May 20, 2013, he

stopped in Merrillville, Indiana, to take a mandatory drug

screening test. Unable to find parking at the drug-testing fa-

cility, Strand received permission to park his rig outside a

nearby Planned Parenthood office.

Curtis Minchuk, a police officer with the Town of

Merrillville, was working security at Planned Parenthood the

same day. He did so in uniform with authorization from the

Town. Upon reporting to work, Minchuk noticed a semi-truck

parked in the lot. Unable to find the driver, he wrote two

parking tickets and left them on the truck’s windshield.

Upon returning to his truck, Strand found the tickets and

went into Planned Parenthood to ask about them. An

No. 18-1514 3

employee directed Strand to meet a police officer by his truck.

Strand tried to discuss the tickets with Officer Minchuk, ex-

plaining that he did not see any no-parking signs in the lot,

and also had received permission to park there. Minchuk had

no interest in discussing the tickets beyond, as the district

court observed, allegedly soliciting a bribe from Strand. After

Strand declined to pay, Minchuk drove to the back of the

Planned Parenthood facility.

Strand started his rig, but before driving away used his

cell phone to take pictures of the parking lot, thinking he

might need them to show the absence of no-parking signs to

contest the tickets. Observing from a distance, Officer

Minchuk returned to the truck and ordered Strand to leave

immediately. Strand said he would leave as soon as he

finished taking pictures. Minchuk responded by saying he

was calling a tow truck and telling Strand he had two minutes

to leave.

The situation then escalated. Stepping toward Strand,

Officer Minchuk admonished, “I told you to get the f*** outta

here,” and slapped Strand’s cell phone to the ground.

Minchuk then demanded Strand’s identification; Strand

refused and countered by demanding Minchuk’s badge

number. Minchuk replied, “I said, give me your I.D.” and

grabbed Strand by his shirt and neck, resulting in Strand’s

shirt tearing off his body. Minchuk attempted to push and

tackle Strand to the ground, with Strand resisting by holding

on to Minchuk’s arm.

At that point, both men fell to the ground, with Strand

then punching Minchuk at least three times in the face and

placing his hands on Minchuk’s throat. Minchuk testified that

this caused him to see stars, to feel as if he would pass out,

4 No. 18-1514

and to fear for his life. He worried that, if he passed out,

Strand would take his gun and shoot him.

The fist fight ceased when Strand stood up, backed four to

six feet away from Officer Minchuk, put his hands up, and

said, “I surrender. Do whatever you think you need to do. I

surrender, I’m done.” While still on the ground, Minchuk re-

sponded by removing his gun from its holster and firing a

shot at Strand, striking him in the abdomen. Strand survived

the gunshot wound. (In a subsequent proceeding in Indiana

state court, Strand was convicted of committing felony battery

of a police officer.)

B

Strand brought suit under 42 U.S.C. § 1983 against Officer

Minchuk and the Town of Merrillville for the use of excessive

force in violation of the Fourth Amendment. The defendants

moved for summary judgment, contending that undisputed

facts showed that Officer Minchuk could have reasonably be-

lieved Strand was not subdued—and therefore continued to

present a danger—at the moment Minchuk chose to use

deadly force. The defendants further argued that regardless

of the district court’s ruling on the merits of the excessive

force claim, Minchuk was entitled to qualified immunity.

The district court denied the Town and Minchuk’s motion

for summary judgment, concluding that a material fact

remains unresolved and contested between the parties:

whether sufficient time passed upon Strand’s surrender to

result in Strand being “subdued prior to Officer Minchuk’s

use of deadly force.” Putting the same point another way, the

district court determined that Strand’s substantive Fourth

Amendment claim and Officer Minchuk’s corresponding

No. 18-1514 5

request for qualified immunity could not be resolved on

summary judgment because the record leaves “unclear

whether the rapidly-evolving nature of the altercation

justified Officer Minchuk’s use of force, or whether he had

time to recalibrate the degree of force necessary, in light of

plaintiff’s statement of surrender.”

In emphasizing that these questions could not be an-

swered on summary judgment, the district court was able to

make the limited observation that, “[a]t some point at the start

of the physical altercation Officer Minchuk called for assis-

tance over his radio.” The court further observed that twenty-

one seconds passed from Minchuk’s radio call for backup to

the report of the shooting, which the record shows came from

a Planned Parenthood employee who called 911.

Officer Minchuk now appeals, urging us to reverse the dis-

trict court’s denial of qualified immunity.

II

A

We begin, as we must, by evaluating our jurisdiction over

Officer Minchuk’s appeal. Although the denial of summary

judgment ordinarily does not constitute an appealable final

order under 28 U.S.C. § 1291, the collateral-order doctrine af-

fords an exception for a denial of qualified immunity. See

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); Thompson v. Cope,

900 F.3d 414, 419 (7th Cir. 2018).

The Supreme Court’s decision in Johnson v. Jones, 515 U.S.

304 (1995) teaches that the exception is not absolute, however.

Immediate appeal is available only if we can evaluate the de-

nial of qualified immunity as a legal matter. See id. at 319–20.

Here that requires us to view the facts as the district court did

6 No. 18-1514

in ruling on Officer Minchuk’s motion for summary judg-

ment—in the light most favorable to Strand as the plaintiff

and non-moving party. See Jones v. Clark, 630 F.3d 677, 680

(7th Cir. 2011). Only then do we evaluate the constitutionality

of Officer Minchuk’s conduct. See Thompson, 900 F.3d at 419–

20; Jones, 630 F.3d at 680–81.

In answering whether a police officer is entitled to quali-

fied immunity as a matter of law, we must avoid resolving

contested factual matters. See Gutierrez v. Kermon, 722 F.3d

1003, 1011 (7th Cir. 2013); Weinmann v. McClone, 787 F.3d 444,

446 (7th Cir. 2015) (“An appeal from a ruling on qualified im-

munity is not the time for the resolution of disputed facts.”).

If we detect a “back-door effort” to contest facts on appeal, we

lack jurisdiction. Jones, 630 F.3d at 680; see also Gutierrez, 722

F.3d at 1010 (reiterating limits of appellate jurisdiction over

appeal from denial of qualified immunity and stating that a

party “effectively pleads himself out of court by interposing

disputed factual issues in his argument”).

Aware of this jurisdictional limitation, Officer Minchuk

emphasizes that he is not contesting any facts and indeed, for

purposes of this appeal, accepts them in the light most favor-

able to Strand as the non-moving party. We take him at his

word and proceed to evaluate whether Officer Minchuk is en-

titled to qualified immunity as a matter of law. See Jones, 630

F.3d at 680 (“In a collateral-order appeal like this one, where

the defendants say that they accept the plaintiff’s version of

the facts, we will take them at their word and consider their

legal arguments in that light.”); Knox v. Smith, 342 F.3d 651,

656–57 (7th Cir. 2003) (following the same approach).

In traveling this path, we cannot retreat from our obliga-

tion to avoid trying to answer (as a factual matter) the

No. 18-1514 7

question the district court emphasized remains unresolved:

whether enough time went by between Strand’s surrender

and Minchuk’s use of deadly force such that Strand was sub-

dued at the moment Minchuk fired the shot. The Supreme

Court has underscored the necessity for this exact discipline

in this exact context—appellate review of a denial of qualified

immunity on summary judgment. See Tolan v. Cotton, 134 S.

Ct. 1861, 1868 (2014) (“By weighing the evidence and reaching

factual inferences contrary to Tolan’s competent evidence, the

court below neglected to adhere to the fundamental principle

that at the summary judgment stage, reasonable inferences

should be drawn in favor of the non-moving party.”).

B

In evaluating Officer Minchuk’s entitlement to qualified

immunity, we undertake the twofold inquiry of asking

whether his conduct violated a constitutional right, and

whether that right was clearly established at the time of the

alleged violation. See District of Columbia v. Wesby, 138 S. Ct.

577, 589 (2018). We are free to choose which prong to address

first. See Pearson v. Callahan, 129 S. Ct. 808, 812 (2009).

The first prong of the inquiry, whether Officer Minchuk

used excessive force and thereby violated Strand’s Fourth

Amendment rights, is governed by the Supreme Court’s deci-

sions in Tennessee v. Garner, 471 U.S. 1 (1985) and Graham v.

Connor, 490 U.S. 386 (1989). The law requires an assessment of

the totality of the facts and circumstances and a “careful bal-

ancing of the nature and quality of the intrusion on the indi-

vidual’s Fourth Amendment interests against the countervail-

ing governmental interests at stake.” See Plumhoff v. Rickard,

134 S. Ct. 2012, 2020 (2014) (quoting Graham, 490 U.S. at 396).

At a more specific level, we owe “careful attention” to “the

8 No. 18-1514

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.” Graham, 490 U.S. at 396.

The proper inquiry is one of “objective” reasonableness

that proceeds without regard to the subjective “intent or mo-

tivation” of the officer. Id. at 397. To be sure, the “calculus of

reasonableness must embody allowance for the fact that po-

lice officers are often forced to make split-second judgments—

in circumstances that are tense, uncertain, and rapidly evolv-

ing—about the amount of force that is necessary in a particu-

lar situation.” Id. at 396–97. So, too, however, have we cau-

tioned that “[w]hen an officer faces a situation in which he

could justifiably shoot, he does not retain the right to shoot at

any time thereafter with impunity.” Ellis v. Wynalda, 999 F.2d

243, 247 (7th Cir. 1993). After all “[t]he circumstances might

materially change,” for “[e]ven though an officer may in one

moment confront circumstances in which he could constitu-

tionally use deadly force, that does not necessarily mean he

may still constitutionally use deadly force the next moment.”

See Horton v. Pobjecky, 883 F.3d 941, 950 (7th Cir. 2018).

If the facts and circumstances show that an individual

who once posed a threat has become “subdued and comply-

ing with the officer’s orders,” the officer may not continue to

use force. See Johnson v. Scott, 576 F.3d 658, 660 (7th Cir. 2009).

And that is especially so when it comes to the use of deadly

force: “[A] person has a right not to be seized through the use

of deadly force unless he puts another person (including a po-

lice officer) in imminent danger or he is actively resisting ar-

rest and the circumstances warrant that degree of force.”

Weinmann, 787 F.3d at 448. As the Supreme Court succinctly

No. 18-1514 9

stated in Garner, “[a] police officer may not seize an unarmed,

nondangerous suspect by shooting him dead.” 471 U.S. at 11.

Wherever “feasible,” moreover, the officer should give a

warning before deploying deadly force. Id. at 12.

For the law to be clearly established—the second prong of

the qualified immunity analysis—the “existing precedent

must have placed the statutory or constitutional question be-

yond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). The

necessary starting point is to define the right at issue with

specificity. See Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018).

Indeed, the Supreme Court has “’repeatedly told courts . . .

not to define clearly established law at a high level of gener-

ality,’ since doing so avoids the crucial question whether the

official acted reasonably in the particular circumstances he or

she faced.” Rickard, 134 S. Ct. at 2023 (quoting al-Kidd, 563 U.S.

at 742); see also Kisela, 138 S. Ct. at 1153 (emphasizing im-

portance of defining clearly established law with specificity in

the excessive force context).

The demand for specificity is not unyielding or bereft of

balance. Assessing whether the law is clearly established does

not require locating “a case directly on point.” Kisela, 138 S.

Ct. at 1152. Law enforcement officers, the Court has stressed,

“can still be on notice that their conduct violates established

law even in novel factual circumstances.” Hope v. Pelzer, 536

U.S. 730, 741 (2002).

C

Whether we approach Officer Minchuk’s request for qual-

ified immunity by first assessing the merits of Strand’s claim

or instead by evaluating whether Minchuk’s conduct violated

clearly established law, we come to the same barrier: we

10 No. 18-1514

cannot—as we must—view the facts in Strand’s favor and

conclude as a matter of law that Minchuk is entitled to quali-

fied immunity on summary judgment.

Officer Minchuk resorted to the use of deadly force at a

time when Strand had stopped fighting, separated from

Minchuk, stood up, stepped four to six feet away from

Minchuk, and, with his hands in the air, said, “I surrender. Do

whatever you think you need to do. I surrender, I’m done.”

The record shows that Strand was unarmed at all points in

time. Furthermore, upon standing, raising his hands, and

voicing his surrender, Strand never stepped toward Minchuk,

made a threatening statement, or otherwise did anything to

suggest he may resume fighting or reach for a weapon.

Recall, too, the broader circumstances that led to the

shooting. The police were not in hot pursuit of an individual

known to be armed and dangerous. Nor had the police re-

sponded to a report of violent crime or otherwise arrived at a

location only to find an individual engaged in violent or men-

acing conduct or acting so unpredictably as to convey a threat

to anyone present.

To the contrary, the entire fracas leading to Officer

Minchuk’s use of deadly force began with his issuance of

parking tickets. After Strand declined to make an on-the-spot

cash payment and instead sought to take pictures to show the

absence of no-parking signs, Officer Minchuk allowed the

situation to escalate and boil over by slapping Strand’s cell

phone to the ground and then tearing Strand’s shirt from his

body. The fist fight then ensued, with Strand choosing to stop

throwing punches and stand up and offer his express

surrender, including by raising his hands above his head. It

was then—with no direction to Strand to keep his hands in

No. 18-1514 11

the air, to fall to his knees, or to lay on the ground—that

Officer Minchuk drew his gun and fired the shot.

A reasonable jury could find that Officer Minchuk violated

Strand’s constitutional right to remain free of excessive force.

On these facts and circumstances, considered collectively and

in the light most favorable to Strand, Strand no longer posed

an immediate danger to Officer Minchuk at the time he fired

the shot. The Fourth Amendment does not sanction an of-

ficer—without a word of warning—shooting an unarmed of-

fender who is not fleeing, actively resisting, or posing an im-

mediate threat to the officer or the public. See Garner, 471 U.S.

at 11 (“A police officer may not seize an unarmed, nondanger-

ous suspect by shooting him dead.”).

The district court correctly observed that additional fact

finding was necessary to determine whether “the rapidly-

evolving nature of the altercation” justified Officer Minchuk’s

use of deadly force or whether “he had time to recalibrate the

degree of force necessary, in light of [Strand’s] statement of

surrender.” This fact finding cannot occur on summary judg-

ment (or appeal), so we cannot conclude that the district court

committed error in determining a genuine issue of material

fact prevented a resolution of the merits of Strand’s claim.

Officer Minchuk urges a contrary conclusion. He argues

that Strand’s “sudden and unexpected gesture of surrender,”

after having just finished beating Officer Minchuk about the

face and head while pressing down on Officer Minchuk’s

throat, proves as a matter of law that a reasonable officer

could have believed the use of deadly force was objectively

warranted to prevent Strand from inflicting additional serious

harm. Officer Minchuk goes even further, contending that

“[t]here is no dispute in this case that [Strand], who was

12 No. 18-1514

standing over Officer Minchuk just a few feet away from him

completely unrestrained, was not subdued at the time that

Officer Minchuk deployed deadly force.”

Factual disputes do not resolve on the force of say so, how-

ever. What Officer Minchuk sees as undisputed—whether

Strand continued to pose a threat at the moment Minchuk de-

ployed deadly force—is actually unresolved and indeed vig-

orously contested by Strand. For Minchuk to prevail at this

stage, the record must show that he fired while Strand still

posed a threat. Instead, the record shows that Strand had

backed away, voiced his surrender, and up to five, ten, or fif-

teen seconds may have elapsed while Strand stood with his

hands in the air. And that is why the district court rightly de-

termined, after a close and careful analysis of the record, that

Minchuk was not entitled to qualified immunity as a matter

of law at summary judgment on the merits of Strand’s claim.

This same factual dispute also prevents us from conclud-

ing, as Officer Minchuk urges, that Strand’s clearly estab-

lished constitutional rights were not violated, the second

prong of the qualified immunity inquiry. We analyze whether

precedent squarely governs the facts at issue, mindful that we

cannot define clearly established law at too high a level of

generality. Yet we can look at the facts only with as much

specificity as the summary judgment record allows.

It is beyond debate that a person has a right to be free of

deadly force “unless he puts another person (including a po-

lice officer) in imminent danger or he is actively resisting ar-

rest and the circumstances warrant that degree of force.”

Weinmann, 787 F.3d at 448; see also Becker v. Elfreich, 821 F.3d

920, 928 (7th Cir. 2016) (emphasizing that it is “well-estab-

lished that police officers cannot continue to use force once a

No. 18-1514 13

suspect is subdued”). But the district court could not deter-

mine whether—at the point Minchuk used deadly force—

Strand posed an imminent harm to Officer Minchuk. The rec-

ord left unclear precisely how much time went by from the

moment the fist fight stopped to the moment Officer Minchuk

pulled the trigger.

All the record shows is that twenty-one seconds passed

between Officer Minchuk radioing for assistance and the po-

lice department receiving the 911 call from the Planned

Parenthood employee who reported the shooting. However

much time elapsed between the end of the fighting and the

gunshot had to be enough for Strand to bring the ground

brawl to an end, to stand up and step back four to six feet, and

then to raise his arms and say to Officer Minchuk, “I surren-

der. Do whatever you think you need to do. I surrender, I’m

done.” Perhaps all of this took ten seconds. Or perhaps it took

seven seconds or maybe fifteen. At some point, though,

enough time may have passed that it would have been objec-

tively unreasonable for Officer Minchuk to continue to believe

that he was in imminent danger. But, as the district court ob-

served, the record at this stage does not answer whether

Strand continued to pose a threat when Minchuk fired. And

this is the hurdle—the unresolved material question of fact—

that Officer Minchuk cannot clear on summary judgment.

Officer Minchuk points to our decision in Johnson v. Scott,

576 F.3d 658 (7th Cir. 2009), which he sees as “controlling and

dispositive in this case,” to contend that there is no way to

conclude that he violated clearly established law in using

deadly force in the circumstances he faced here. Read fairly,

however, Johnson lends little support to Officer Minchuk, at

least at the summary judgment stage. Facts matter, and the

14 No. 18-1514

facts of Johnson were quite different. The crimes leading to ar-

rest in Johnson were severe—a shooting and then reckless

flight in a car and by foot from the police. See 576 F.3d at 660.

The suspect had “used every method at his disposal to flee”

but encountered a fence “too high for him to jump over.” Id.

At that point, cornered, he put his hands up in the air and at-

tempted to surrender, just as the officer, in a split-second re-

action, deployed force on the suspect. Id. at 659. Critical to the

court’s decision that the officer was entitled to qualified im-

munity was that “it could not have been more than one sec-

ond between [the suspect’s] surrender and the use of force by

[the officer].” Id. at 660.

The contrast is clear: Strand’s confrontation with Officer

Minchuk involved no high-speed car and foot chase, no re-

port of a violent crime, and no reason to believe an offender

was armed. Far from undermining the clearly established law

that the use of deadly force against a person posing no risk of

imminent harm is unreasonable, Johnson underscores that the

circumstances of the surrender and the timeline surrounding

the use of force are critical. And here, unlike in Johnson, the

circumstances are unclear such that we cannot discern with

any confidence whether Strand continued to pose a threat to

Officer Minchuk.

The clearly established law comes from cases in which we

have emphasized that a subdued suspect has the right not to

be seized by deadly or significant force, a right which has

been well-established for decades. See, e.g., Abbott v. Sangamon

County, Ill., 705 F.3d 706, 732 (7th Cir. 2013) (citing cases da-

ting back to 1995 and concluding that “it was well-established

in this circuit that police officers could not use significant

force on nonresisting or passively resisting suspects”);

No. 18-1514 15

Wynalda, 999 F.2d at 247 (concluding that an officer was not

entitled to qualified immunity where he shot a fleeing suspect

who no longer presented any immediate threat because

“[w]hen an officer faces a situation in which he could justifi-

ably shoot, he does not retain the right to shoot at any time

thereafter with impunity”); see also Becker, 821 F.3d at 929

(upholding a denial of qualified immunity where an officer

used force on a suspect who was not fleeing, was out in the

open, and had surrendered with his hands above his head);

Miller v. Gonzalez, 761 F.3d 822, 829 (7th Cir. 2014) (holding

that an officer was not entitled to qualified immunity at the

summary judgment stage where, at the point the officer used

force, the suspect was visible to the officer and “had been mo-

tionless for upwards of ten seconds”).

Weinmann also instructs that a dispute of fact regarding

the circumstances surrounding an officer’s use of force may

prevent us from determining whether an individual’s clearly

established rights have been violated. 787 F.3d at 451. There

the summary judgment record left unresolved whether a sui-

cidal man with a gun presented an immediate threat to an of-

ficer who arrived on the scene. See id. at 448. Under one ver-

sion of the facts, the officer’s use of force would have been

reasonable; under another, clearly established law would

have made it unreasonable. See id. at 449−50. And it was this

uncertainty as to a material fact that “preclude[d] a ruling on

qualified immunity” on summary judgment. Id. at 451.

We chart the same course here. The existence of the

substantial factual dispute about the circumstances and

timing surrounding Minchuk’s decision to shoot Strand

precludes a ruling on qualified immunity at this point. This is

not to foreclose the availability of qualified immunity to

16 No. 18-1514

Officer Minchuk at trial. At trial a jury may resolve these

disputed facts in Officer Minchuk’s favor, and the district

court could then determine he is entitled to qualified

immunity as matter of law. See Warlick v. Cross, 969 F.2d 303,

305 (7th Cir. 1992) (“When the issue of qualified immunity

remains unresolved at the time of trial, as was the case here,

the district court may properly use special interrogatories to

allow the jury to determine disputed issues of fact upon

which the court can base its legal determination of qualified

immunity.”). But we cannot make such a determination at this

stage on this record.

For these reasons, we AFFIRM.