Patrick Dockery v. Sherrie Blackburn

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 17-1881

PATRICK RYAN DOCKERY,

Plaintiff-Appellee,

v.

SHERRIE BLACKBURN and TERRY HIGGINS,

Defendants-Appellants.

____________________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 13 C 4878 — Jeffrey T. Gilbert, Magistrate Judge.

____________________

ARGUED JANUARY 3, 2018 — DECIDED DECEMBER 19, 2018

____________________

Before EASTERBROOK and SYKES, Circuit Judges, and

REAGAN, District Judge. ∗

SYKES, Circuit Judge. Patrick Dockery was arrested after a

domestic dispute at his girlfriend’s apartment in Joliet,

Illinois. Sergeant Sherrie Blackburn and Officer Terry

Higgins took him to the police station for booking on charg-

∗ Of the Southern District of Illinois, sitting by designation.

2 No. 17-1881

es of trespass and criminal damage to property. He grew

confrontational while being fingerprinted, and the officers

told him that he’d have to be handcuffed to a bench for the

rest of the booking process. Things escalated quickly.

Dockery angrily pulled away, fell over, and kicked wildly at

the officers. By the time the officers managed to handcuff

him, Sergeant Blackburn had used her Taser four times. A

security camera recorded the entire incident.

Nearly two years later, Dockery sued the officers for

damages under 42 U.S.C. § 1983, accusing them of using

excessive force in violation of the Fourth Amendment. The

officers moved for summary judgment, claiming qualified

immunity based on the incontrovertible facts captured on

the booking-room video recording. A magistrate judge

denied the motion, and the officers sought interlocutory

review.

Our jurisdiction to review an order denying qualified

immunity is limited to questions of law; we may not review

a determination that the evidence is sufficient to proceed to

trial. See Johnson v. Jones, 515 U.S. 304, 319–20 (1995); Stinson

v. Gauger, 868 F.3d 516, 524 (7th Cir. 2017) (en banc). An

excessive-force claim requires an assessment of whether the

officer’s use of force was objectively reasonable under the

circumstances. Graham v. Connor, 490 U.S. 386, 395 (1989).

Under this standard and based on the irrefutable facts

preserved on the video, the officers are entitled to qualified

immunity. The video shows that Sergeant Blackburn first

deployed the Taser when Dockery was flailing and kicking

and actively resisting being handcuffed. Blackburn then

used the Taser three more times to subdue and gain control

over a still-struggling Dockery as he kicked, attempted to

No. 17-1881 3

stand up, and otherwise resisted commands to submit to

their authority. No case clearly establishes that an officer

may not use a Taser under these circumstances. Accordingly,

we reverse and remand with instructions to enter judgment

for Sergeant Blackburn and Officer Higgins.

I. Background

Our account of the facts comes from the evidence in the

summary-judgment record, construed in Dockery’s favor as

the nonmoving party. Locke v. Haessig, 788 F.3d 662, 665 (7th

Cir. 2015). There is a qualifier, however: to the extent

Dockery’s story is “blatantly contradicted” by the video such

that no reasonable jury could believe it, we do not credit his

version of events. Scott v. Harris, 550 U.S. 372, 380 (2007).

On July 13, 2011, Tina Rose called 911 and reported that

her boyfriend, Patrick Dockery, was high on phencyclidine

(“PCP”) and had barged into her apartment at the Evergreen

Terrace complex. Based on a prior domestic dispute with

Rose, Dockery had been banned from the apartment com-

plex. Sergeant Blackburn and Officer Higgins responded to

the 911 call. When they arrived, Rose told them that Dockery

had entered her apartment high on PCP and was yelling and

punching holes in the wall. She directed them to an upstairs

bedroom. There the officers located Dockery sitting on a bed.

They also noticed a hole in the bedroom door. They arrested

Dockery for trespass and criminal damage to property and

transported him to a nearby hospital based on their concern

that he was on PCP. Dockery contests their motivation, but

this factual dispute is immaterial. The parties agree that

Dockery remained calm and cooperative during this time.

4 No. 17-1881

Dockery was examined at the hospital and cleared for

release, and the officers then took him to the Joliet Police

Department for booking. To understand what happened

next requires some background on Sergeant Blackburn’s

Taser x26 model. The Taser x26 has three modes. “Probe

mode” or “dart mode” is used when an officer fires a Taser

at a distance. The Taser shoots two metal prongs that attach

to the subject’s body. An electric current flows between the

prongs, causing momentary neuromuscular incapacitation

by rapidly contracting the subject’s muscles. Each trigger

pull produces five seconds of 5,000-volt electrical pulses

with 19 pulses per second. Both prongs must attach to the

subject to cause incapacitation.

Next, an officer may use “three-point” mode when only

one working prong is attached to the subject. This often

occurs when the other prong misses the target, is damaged,

or is pulled out by the subject. To complete the electrical

circuit with the attached prong, the officer presses the nose

of the Taser directly on the subject’s body. Three-point mode

thereby produces neuromuscular incapacitation in the same

manner as probe mode.

Finally, an officer may use the Taser x26 in “drive-stun”

mode. This mode does not require a probe to be attached to

the subject. The officer presses the nose of the Taser directly

on the subject’s body and electricity flows between two

electrodes on the end of the device. Unlike the other modes,

drive-stun mode does not work by way of neuromuscular

incapacitation. The officer instead uses drive-stun mode for

“pain compliance,” which induces a subject to submit to an

officer’s directions.

No. 17-1881 5

When the officers arrived at the station with Dockery,

they led him through the adult booking room and then

through an open door into the adjacent juvenile booking

room. Security-camera footage from each booking room is in

the record. Sergeant Blackburn’s Taser also had a built-in

video camera that automatically started recording within

1.5 seconds of deployment. The Taser recorded black-and-

white footage and audio of the incident.

The officers removed Dockery’s handcuffs and permitted

him to use a restroom adjacent to the juvenile booking room.

That took nearly ten minutes. Dockery then freely wandered

back into the adult booking room and calmly sat on a bench

for four minutes. He walked back to the juvenile booking

room and made a short phone call. Once he finished his call,

Sergeant Blackburn told him to come back to the adult

booking room for fingerprinting.

Dockery entered the adult booking room and followed

instructions to wash his hands. He then walked across the

room to the electronic fingerprinting station. Officer Higgins

stood next to Dockery and guided his fingers on the ma-

chine. About one minute into the fingerprinting, Dockery

started to sway and became visibly restless. He tapped

Higgins on the shoulder twice before playfully grabbing

Higgins’s shoulder and shaking it. Higgins regarded this

action as disrespectful. He stopped the fingerprinting and

took a step back. Higgins called Dockery a “smart ass” and

told him that he would be handcuffed to a nearby bench for

the rest of the process. Dockery’s demeanor immediately

changed. He folded his arms across his chest, took a step

toward Higgins, and grabbed Higgins’s hand. Higgins freed

6 No. 17-1881

himself from this grasp, pulled Dockery’s hand behind his

back, and started to move him toward the bench.

Sergeant Blackburn, who was sitting behind a desk

across the room, stood up and unholstered her Taser. But

she did not immediately turn the device on. As Higgins

continued to guide Dockery toward the bench, Dockery

noticed the Taser and abruptly started to move toward

Blackburn. She is much smaller than Dockery—three inches

shorter and at least 100 pounds lighter. Dockery managed to

pull his left arm free from Officer Higgins’s grasp, and he

aggressively pointed it at Blackburn’s face. Blackburn

grabbed Dockery’s arm with her free hand and brought it

behind his back.

A struggle ensued. Dockery rocked back and forth as the

officers attempted to handcuff him. Dockery suddenly fell

backward, wildly kicked his legs in the direction of Officer

Higgins, and then jumped back to his feet. At this point

Sergeant Blackburn activated her Taser and fired. The Taser

shock briefly incapacitated Dockery; he lay face down on the

ground for about two seconds. He then looked over his left

shoulder, saw Higgins approaching with handcuffs, and

quickly flipped over and kicked his leg out at Higgins for a

second time. Both officers retreated and stood a few feet

away while ordering Dockery to “get on the ground.”

Dockery didn’t comply with their orders. Instead, he contin-

ued to sit upright and appeared to pull out one of the Taser

prongs.

Officer Higgins stood about three feet away from

Dockery with open handcuffs. The officers again told

Dockery to “get on the ground,” but he continued to sit

upright. Blackburn pulled the Taser trigger three times, but

No. 17-1881 7

these trigger pulls were ineffectual because one of the

prongs was either damaged or detached. As Sergeant

Blackburn moved in closer to Dockery, he turned his body

toward her, pointed an arm in her direction, and attempted

to stand.

At this point—18 seconds after the first Taser shock—

Sergeant Blackburn directly applied the Taser to Dockery’s

upper back for a split second as she tried to reposition him

on the ground for handcuffing. Specifically, she pushed

down on his shoulder with her left hand as she applied the

Taser with her right. Dockery still didn’t comply. He very

quickly rolled toward Blackburn with his arms and legs

outstretched.

Sergeant Blackburn tried again. She positioned herself

behind Dockery a second time and briefly applied the Taser

to his upper back. The parties dispute whether the Taser

actually made contact with Dockery, but we assume that it

did. Dockery rolled away from Blackburn. She then ap-

proached again and directly applied the Taser to Dockery a

third time, leaning into him so that he would lie face down

on the ground. Blackburn and Higgins held him on the

ground as two other officers ran into the room to assist. The

four officers then managed to handcuff Dockery. The entire

episode—from the first Taser deployment until the hand-

cuffing—lasted under one minute.

Dockery maintains that he was not intentionally resisting

the officers’ efforts to handcuff him. He says he lost his

balance because he is overweight and inflexible, and he fell

over from the pain of being forced into a single pair of

handcuffs. For support he presented photographs of wrist

lacerations from the handcuffs, and he notes that Sergeant

8 No. 17-1881

Blackburn and Officer Higgins used two linked pairs of

handcuffs when they first arrested him. Finally, he insists

that his actions after the first Taser deployment were invol-

untary reactions to the shock, not intentional acts of re-

sistance. Again, this factual dispute is immaterial. Excessive-

force claims are evaluated against a standard of objective

reasonableness. Whether Dockery actually intended to resist

does not matter. What matters is how a reasonable officer

would construe the circumstances.

Another dispute centers on how the different Taser

modes affect the human body. The parties agree that one of

the probes was damaged or removed after the initial shock.

So only the three-point or drive-stun options remained

available to Sergeant Blackburn, and both required direct

contact with Dockery’s body. The officers maintain that she

used drive-stun mode for pain compliance. Dockery con-

tends that she used the three-point mode, causing neuro-

muscular incapacitation. A review of the record, including

the Taser summary report, does not conclusively establish

which mode was used. We therefore assume at this stage

that Dockery’s assertion is correct.

Dockery was charged with trespass, criminal damage to

property, and obstruction. He was convicted of trespass and

sentenced to 180 days in jail. Nearly two years after the

incident, Dockery filed this suit under § 1983 and state law

against Sergeant Blackburn, Officer Higgins, the City of

Joliet, the Joliet Police Department, and additional named

and unnamed Joliet officers. He asserted four claims: (1) use

of excessive force in violation of the Fourth Amendment;

(2) malicious prosecution; (3) denial of medical care; and

(4) inadequate training in the use and deployment of a Taser.

No. 17-1881 9

A magistrate judge, presiding by consent, recruited pro bono

counsel for Dockery, and the defendants moved for sum-

mary judgment.

The magistrate judge entered judgment for the defend-

ants on most claims, but he allowed the excessive-force claim

against Sergeant Blackburn and Officer Higgins to go for-

ward. As relevant here, the judge denied the officers’ claim

of qualified immunity.

II. Discussion

Excessive-force claims are governed by the Fourth

Amendment’s “reasonableness” standard, which turns on

the totality of the circumstances confronting Sergeant

Blackburn and Officer Higgins viewed from the perspective

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

20/20 vision of hindsight,” and allowing for the fact that

“police officers are often forced to make split-second judg-

ments—in circumstances that are tense, uncertain, and

rapidly evolving—about the amount of force that is neces-

sary in a particular situation.” Graham, 490 U.S. at 396–97.

The Supreme Court has instructed us to weigh the nature

and extent of the force used against the severity of the

suspect’s crime, the nature and immediacy of the threat he

posed to the officers or others, and the extent to which the

suspect actively resisted or attempted to evade arrest. Id. at

396. Whether a particular use of force was objectively rea-

sonable “is a legal determination rather than a pure question

of fact for the jury to decide.” Phillips v. Cmty. Ins. Corp.,

678 F.3d 513, 520 (7th Cir. 2012). A threshold question,

however, concerns appellate jurisdiction.

10 No. 17-1881

A. Appellate Jurisdiction

An order denying summary judgment ordinarily is not

an appealable “final decision” under 28 U.S.C. § 1291, but an

exception exists for an order denying a claim of qualified

immunity. See Plumhoff v. Rickard, 572 U.S. 765, 771 (2014).

Qualified immunity is “immunity from suit rather than a

mere defense to liability,” so pretrial orders denying quali-

fied immunity are generally reviewable under the collateral-

order doctrine. Id. at 771–72 (quotation marks omitted).

But interlocutory review of a denial of qualified immuni-

ty is limited to pure questions of law. As the Supreme Court

explained in Johnson v. Jones, “a defendant[] entitled to

invoke a qualified immunity defense[] may not appeal a

district court’s summary judgment order insofar as that

order determines whether or not the pretrial record sets

forth a ‘genuine’ issue of fact for trial.” 515 U.S. at 309, 319–

20.

At issue in Johnson was whether five police officers used

excessive force during an arrest that left the plaintiff hospi-

talized with broken ribs. Id. at 307. Three officers moved for

summary judgment on qualified-immunity grounds, assert-

ing that they did not participate in the beating. Id. at 307–08.

The district court denied the motion, reasoning that the

plaintiff raised a genuine factual issue about whether the

officers had participated in the beating. Id. On appeal the

officers asserted that the district court’s adoption of the

plaintiff’s story was not supported by the record. The

Supreme Court held that the interlocutory order—which

“determine[d] only a question of ‘evidence sufficiency,’ i.e.,

which facts a party may, or may not, be able to prove at

trial”—was not immediately appealable. Id. at 313.

No. 17-1881 11

Two post-Johnson cases clarify the distinction between

nonreviewable qualified-immunity orders based on eviden-

tiary sufficiency and reviewable qualified-immunity orders

based on “more abstract issues of law.” Id. at 317. First, in

Scott v. Harris, the Court considered a claim that a police

officer used excessive force when he rammed the plaintiff’s

car during a high-speed chase captured on video. 550 U.S. at

375. At summary judgment the district court rejected the

officer’s claim of qualified immunity, finding a genuine

factual dispute about the degree of danger posed by the

plaintiff’s reckless driving. Id. at 376. The Eleventh Circuit

affirmed. Id.

The Supreme Court reversed, ruling that the plaintiff’s

story was “utterly discredited” by the videotape. Id. at 380.

The Court observed that although “there is no obvious way

to quantify the risks on either side, it is clear from the vide-

otape that [the plaintiff] posed an actual and imminent

threat to the lives of [others].” Id. at 383–84. Because the

reasonableness of the officer’s actions is ultimately a legal

question and the video conclusively established that the car

chase “posed a substantial and immediate risk of serious

physical injury to others,” the Court held that the officer was

entitled to summary judgment. Id. at 386. In other words,

Johnson did not preclude immediate appellate review; the

Court determined that it could rule as a matter of law on the

question of objective reasonableness in light of the historical

facts captured on video.

Plumhoff v. Rickard involved another excessive-force claim

arising out of a high-speed police chase that was captured on

video. The chase ended after officers shot at the fleeing car,

causing it to crash. 572 U.S. at 770. The district court denied

12 No. 17-1881

the officers’ motion for summary judgment based on quali-

fied immunity, finding a genuine factual dispute about the

degree of danger posed by the suspect’s high-speed flight.

Id. The Sixth Circuit affirmed. Id. The Supreme Court re-

versed, explaining that Johnson did not defeat appellate

jurisdiction:

The District Court order in this case is nothing

like the order in Johnson. Petitioners do not

claim that other officers were responsible for

shooting [the plaintiff]; rather, they contend

that their conduct did not violate the Fourth

Amendment and, in any event, did not violate

clearly established law. Thus, they raise legal

issues … .

Id. at 793. The Court went on to apply the objective-

reasonableness standard to the facts as depicted on the

video, holding that the officers’ response to the car chase

was reasonable under the circumstances. Id. at 775–81.

Alternatively, the Court held that the officers were entitled

to qualified immunity. Id. at 781.

On the jurisdictional point at least, Dockery’s case is ma-

terially indistinguishable from Scott and Plumhoff. The

constitutional question—whether the deployment of the

Taser was a reasonable use of force under the circumstanc-

es—is an objective inquiry that turns on how a reasonable

officer would have perceived the circumstances. See Phillips,

678 F.3d at 520. In light of the video recording, which cap-

tured the entire episode, this appeal raises a pure legal

question about the officers’ entitlement to qualified immuni-

ty.

No. 17-1881 13

Dockery responds that the video is subject to multiple

interpretations, one of which supports his contention that he

did not intend to resist the officers but simply fell because he

is overweight and inflexible, and his arms had been painful-

ly wrenched behind his back. He also maintains that he

made “no move to stand, no move to strike the officers, and

no threats.” As we’ve explained, his intent to resist is imma-

terial under the objective test; we ask only how a reasonable

officer would have perceived the circumstances. And

Dockery’s claim that he made no aggressive moves toward

the officers after the first Taser shock and did not try to

stand up is “utterly discredited” by the video, Scott, 550 U.S.

at 380, which clearly depicts his physical resistance to the

officers’ attempts to handcuff him both before and after the

first Taser shock. Johnson does not preclude review.

B. Qualified Immunity

A public official is entitled to qualified immunity from

suit unless he violated a clearly established constitutional

right. Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). As applied

to a Fourth Amendment excessive-force claim, the qualified-

immunity doctrine gives “enhanced deference to officers’

on-scene judgments about the level of necessary force.”

Abbott v. Sangamon County, 705 F.3d 706, 725 (7th Cir. 2013).

Qualified-immunity analysis usually entails a two-step

inquiry: we ask (1) whether the facts alleged or shown by the

plaintiff establish a violation of a constitutional right, and

(2) if so, whether that right was clearly established at the

time of the defendant’s alleged misconduct. Pearson v.

Callahan, 555 U.S. 223, 232 (2009). This order of inquiry is not

rigid, however; we may address the second question first if

it simplifies the analysis. Id. at 227; Abbott, 705 F.3d at 715.

14 No. 17-1881

To show that a right is clearly established, the plaintiff

must demonstrate that existing caselaw at the time of the

events in question “placed the statutory or constitutional

question beyond debate.” Al-Kidd, 563 U.S. at 741. Qualified

immunity cannot be defeated simply by “alleging [a] viola-

tion of extremely abstract rights.” White v. Pauly, 137 S. Ct.

548, 552 (2017). The Supreme Court has cautioned us not to

define the constitutional right in question at a “high level of

generality.” Id. (quotation marks omitted). Instead, to place

the constitutional question beyond debate, the precedent

must be “particularized to the facts of the case.” Id. (quota-

tion marks omitted). A plaintiff may also overcome an

officer’s qualified immunity by showing that the conduct in

question is “so egregious and unreasonable that, notwith-

standing the lack of an analogous decision, no reasonable

officer could have thought he was acting lawfully.” Abbott,

705 F.3d at 723–24.

We have two guideposts in an excessive-force case like

this one. The first is that an officer’s use of a Taser against an

actively resisting subject either does not violate a clearly

established right or is constitutionally reasonable. Id. Exam-

ples of active resistance include “kicking and flailing,”

Clarett v. Roberts, 657 F.3d 664, 674–75 (7th Cir. 2011); declin-

ing to follow instructions while acting in a belligerent man-

ner, Forrest v. Prine, 620 F.3d 739, 745–46 (7th Cir. 2010); and

swatting an arresting officer’s hands away while backpedal-

ing, Brooks v. City of Aurora, 653 F.3d 478, 481 (7th Cir. 2011).

The second guidepost is that an officer may not use sig-

nificant force (like a Taser) against a “nonresisting or pas-

sively resisting” subject. Abbott, 705 F.3d at 732. For example,

we have rejected a claim of qualified immunity where

No. 17-1881 15

officers used force against a “docile and cooperative” sus-

pect who posed no threat and “did not resist arrest in any

way.” Morfin v. City of East Chicago, 349 F.3d 989, 1005 (7th

Cir. 2003). In another case falling on the extreme side of this

line, we have held that “[t]he Constitution clearly does not

allow police officers to force a handcuffed, passive suspect

into a squad car by breaking his ribs.” Rambo v. Daley, 68

F.3d 203, 207 (7th Cir. 1995).

In some cases each discrete use of force must be separate-

ly justified. See Deering v. Reich, 183 F.3d 645, 652 (7th Cir.

1999) (“[W]e carve up the incident into segments and judge

each on its own terms to see if the officer was reasonable at

each stage.”). We think a sequential analysis is appropriate

here and therefore divide our discussion between the first

use of the Taser and the subsequent deployments when

Dockery was on the ground. 1

1. First Taser Deployment

Dockery maintains that he was not actively resisting

when Sergeant Blackburn first used the Taser. That claim

cannot be reconciled with the facts captured on video, as

Dockery’s counsel essentially conceded at oral argument.

The video shows that Dockery was uncooperative and

physically aggressive when the officers tried to handcuff

him, rocking back and forth and twice escaping their grasp.

1 For the first time on appeal, Officer Higgins asserts that he is inde-

pendently entitled to summary judgment because he never used the

Taser. He argues that Dockery should have asserted a failure-to-

intervene claim against him rather than an excessive-force claim. Because

we hold that qualified immunity shields both officers from suit for use of

excessive force, we do not address this argument.

16 No. 17-1881

When he fell backward, he wildly kicked in their direction

and immediately jumped to his feet. Under these circum-

stances we have no difficulty concluding that the first use of

the Taser is protected by qualified immunity. Clarett,

657 F.3d at 674–75.

2. Subsequent Taser Deployments

Dockery argues that after the first Taser shock, he “was

on the floor of the booking room, either sitting calmly or

curling and rolling as a result of Taser-induced involuntary

muscle contractions.” He compares his case to Abbott v.

Sangamon County and Cyrus v. Town of Mukwonago, 624 F.3d

856 (7th Cir. 2010), but neither case supports his claim.

Take Abbott first. There an officer fired his Taser in probe

mode at a woman who angrily approached him and ignored

his order to stop. 705 F.3d at 729. According to the plaintiff—

a nonviolent misdemeanant—there was “no question” that

this first Taser jolt subdued her: “[S]he immediately fell to

the ground and convulsed but made no movement.” Id. at

732. The officer then used the Taser again when the plaintiff

failed to obey the officer’s instruction to turn over. We held

that a jury could find that the second Taser deployment

constituted excessive force because the suspect was already

subdued and the officers had time to appreciate that fact. Id.

Dockery maintains that his case is materially similar be-

cause he did not respond to the officers’ orders while sitting

immobile on the ground for 18 seconds. He adds that

Sergeant Blackburn and Officer Higgins had time to recog-

nize that he was subdued by the first shock. Again, this

account is flatly contradicted by the video. Unlike the plain-

tiff in Abbott, Dockery did not react to the first Taser shock as

No. 17-1881 17

if he were stunned or incapacitated. Within two seconds of

falling, he flipped over and kicked his left foot in Higgins’s

direction. He then sat up, pulled the Taser prong out of his

arm, and ignored the officers’ instructions to lie down. In

short, his combative demeanor never changed, and he did

nothing to manifest submission to being handcuffed.

Cyrus is likewise not closely analogous. There a resisting

suspect “barrel-rolled” down a driveway after an initial

Taser shock. 624 F.3d at 859. He had stopped moving and

was lying still on his stomach with his hands underneath

him when the officers approached and deployed the Taser

again several times. Id. at 860. The district court entered

summary judgment for the officer, concluding that the use of

the Taser after the barrel-roll was objectively reasonable. Id.

at 861. We reversed based on conflicting evidence in the

summary-judgment record about how many times the Taser

was discharged, whether the barrel-roll could be interpreted

as an attempt to flee, and whether the suspect posed a risk to

the officers while lying face down. Id. at 862–63.

Here there is no similar evidentiary conflict. The video

unequivocally shows that Dockery did not submit to the

officers’ authority after the first Taser shock. Instead he sat

up, pulled out one of the prongs, pointed an arm in Sergeant

Blackburn’s direction, attempted to stand up, and otherwise

ignored the officers’ commands to get on the ground. Cyrus

does not help him.

This case more closely tracks Brooks v. City of Aurora,

which involved an excessive-force claim by a suspect who

backpedaled and swatted at a police officer who was at-

tempting to arrest him. The suspect then stood still and

“passively” faced the officers for a few seconds but did not

18 No. 17-1881

manifest submission, so the officer pepper sprayed him.

653 F.3d at 487. We concluded that the officer was entitled to

qualified immunity because the plaintiff “ha[d] not submit-

ted to the officer’s authority, ha[d] not been taken into

custody[,] and still arguably could [have] pose[d] a threat of

flight or further resistance.” Id. A similar conclusion flows

from the video evidence here, which unambiguously shows

that Dockery had not submitted to the officers’ authority and

was far from subdued when Sergeant Blackburn applied the

Taser three more times.

Lacking closely analogous precedent, Dockery argues in

the alternative that this use of force was “so egregious and

unreasonable” that no officer could believe that he was

acting lawfully. Abbott, 705 F.3d at 723–24. To prevail on this

backup argument, Dockery must place the unreasonableness

of Sergeant Blackburn’s and Officer Higgins’s actions “be-

yond debate.” Al-Kidd, 563 U.S. at 741. He has not done so.

Even if the officers misconstrued his actions or misjudged

the amount of force needed to subdue him, qualified im-

munity protects officers from mistakes in judgment of this

sort.

III. Conclusion

For the foregoing reasons, Sergeant Blackburn and

Officer Higgins are entitled to qualified immunity. We

REVERSE the judgment of the district court and REMAND with

instructions to enter judgment in favor of the defendants.