Shanika Day v. Franklin Wooten

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 19-1930

SHANIKA DAY, et al.,

Plaintiffs-Appellees,

v.

FRANKLIN WOOTEN, et al.,

Defendants-Appellants.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:17-cv-04612 — Tanya Walton Pratt, Judge.

____________________

ARGUED NOVEMBER 6, 2019 — DECIDED JANUARY 10, 2020

____________________

Before EASTERBROOK, MANION, and BARRETT, Circuit

Judges.

MANION, Circuit Judge. Terrell Day died tragically while in

police custody on September 26, 2015. This occurred while his

hands were cuffed behind his back after he had winded him-

self during a chase following an apparent shoplifting. The au-

topsy report concluded his cause of death was a lack of oxy-

gen in his blood, caused in part by his obesity, an underlying

heart condition, and restricted breathing due to having his

2 No. 19-1930

hands cuffed behind his back. In this § 1983 excessive force

action brought against the arresting officers, the district court

concluded the officers were not entitled to qualified immunity

because “reasonable officers would know they were violating

an established right by leaving Day’s hands cuffed behind his

back after he complained of difficulty breathing.” For the rea-

sons set forth below, we disagree with the district court’s con-

clusion of law and accordingly reverse.

I. Background

A. Assumed Facts

Before relating the facts, we first address which facts we

must accept or assume for purposes of this interlocutory ap-

peal of the denial of qualified immunity. The plaintiffs argue

we must accept both “the ‘facts that the district court assumed

when it denied summary judgment,’ and … ‘the plaintiff’s

version of the facts.’” This misstates the standard established

by our case law. We are instead presented with a choice be-

tween “[s]everal sources of undisputed facts [that] may frame

our review” of the purely legal question presented by a denial

of qualified immunity. White v. Gerardot, 509 F.3d 829, 833 (7th

Cir. 2007). We may “take, as given, the facts that the district

court assumed when it denied summary judgment.” Id. (quot-

ing Washington v. Haupert, 481 F.3d 543, 549 n.2 (7th Cir.

2007)). Alternatively, “we may conduct our review by ‘accept-

ing the plaintiff’s version of the facts.’” Id.; see also Jewett v. An-

ders, 521 F.3d 818, 819 (7th Cir. 2008). And finally, whether we

accept the district court’s assumed facts or the plaintiff’s ver-

sion of the facts, we may also look to undisputed evidence in

the record even if the district court did not consider it. White,

509 F.3d at 833 n.5; see also Thompson v. Cope, 900 F.3d 414, 419

(7th Cir. 2018).

No. 19-1930 3

Although we are free to choose either the district court’s

assumed facts or the plaintiff’s version, it is most often appro-

priate to accept the facts assumed by the district court in its

denial of summary judgment. Haupert, 481 F.3d at 549 n.2. Ac-

cordingly, we accept the district court’s statement of facts. See

Day v. City of Indianapolis, 380 F. Supp. 3d 812, 817–21 (S.D.

Ind. 2019). In a few instances, which we note, we look to un-

disputed evidence not included in the district court’s order

but provided elsewhere in the record.

Terrell Day was eighteen years old and weighed approxi-

mately 312 pounds1 at the time of his death, with a history of

obesity and an underlying heart condition. On September 26,

2015, Day was confronted by a loss-prevention officer outside

the Burlington Coat Factory at Washington Square Mall in In-

dianapolis after Day apparently shoplifted a watch from the

store. Day returned the watch but refused to return to the

store with the loss-prevention officer. A mall security officer

who joined the confrontation noticed Day had a gun in his

pocket. There are varying accounts of what occurred next, but

it is undisputed that a chase ensued in which Day ran out of

the mall, through the parking lot, and across a street to a gas

station. He there collapsed on a grassy slope. Law enforce-

ment soon arrived in response to a radio call describing an

armed shoplifter. At this point, the gun was no longer on

Day’s person, but was lying in the grass a few feet away and

out of his reach.

Officer Denny, the second officer to arrive on scene, hand-

cuffed Day behind his back with a single set of handcuffs. He

1 Day’s approximate weight was recorded in the autopsy report. (Ap-

pellant’s Separate Appendix (“S.A.”) at 811.)

4 No. 19-1930

testified that Day’s hands came together easily behind his

back. He noticed Day was overweight, sweating, and breath-

ing heavily. Day told the officers he was having trouble

breathing; Officer Denny told Day he had exerted himself by

running and instructed him to take deep breaths in and out to

slow his heart rate. Officer Denny otherwise did not observe

any signs of distress or of Day’s trouble breathing.

Officer Denny initially instructed Day to remain in an up-

right seated position, which he believed to be the most com-

fortable position for Day and ideal for the officers’ safety.

However, Day would not maintain this position, but instead

laid down and rolled down the slope. After two attempts to

keep Day seated upright, Officer Denny instead positioned

Day to lie on his side. Officer Denny believed this was the best

course of action to prevent Day from asphyxiating by rolling

onto his stomach. While repositioning Day, Officer Denny ob-

served Day had defecated on himself. He attributed this to

Day having over-exerted himself during the chase.

Sergeant Wooten arrived shortly after Officer Denny de-

tained Day. Sergeant Wooten monitored Day while Officer

Denny completed his investigative duties as the arresting of-

ficer. Sergeant Wooten and other officers repositioned Day

several times when he rolled onto his stomach. Day com-

plained to Sergeant Wooten that he could not breathe; how-

ever, Sergeant Wooten was skeptical of these complaints be-

cause Day also claimed to have done nothing wrong and was

asking to be released. All the same, Sergeant Wooten called

for an ambulance to evaluate Day approximately five minutes

after Day was initially detained. Sergeant Wooten observed

that Day appeared to calm down and began to breathe nor-

mally.

No. 19-1930 5

The ambulance arrived, and two paramedics examined

Day. In response to their questions, Day told the paramedics

he had no preexisting medical conditions. He was able to

speak to them in clear, full sentences. Their examination in-

volved multiple tests, including listening to Day’s breathing

and checking his heart rate, respiratory rate, and blood oxy-

gen saturation.2 Day’s hands remained cuffed behind his back

throughout the examination. The paramedics concluded Day

was breathing regularly and normally. Based on their exami-

nation, the paramedics believed Day did not need to go to a

hospital.

At that point, the paramedics asked Sergeant Wooten to

sign a release form so they could transfer custody of Day back

to law enforcement. Sergeant Wooten did so. The form he

signed was called a “Treatment/Transport Refusal,” and is

meant to be signed by a patient when he refuses to be trans-

ported to the hospital after being evaluated by paramedics.

However, when the paramedics determine a handcuffed pris-

oner does not need to be transported to the hospital, they have

an officer sign the form as a witness of the transfer, not as a

representative of the prisoner.

Officer Denny requested a “jail wagon” to transport Day

to a detention facility. When the jail wagon arrived, the driver

found Day unresponsive. At that point Day was lying on his

back on the asphalt with his hands still cuffed behind his back.

When the driver and Sergeant Wooten attempted to stand

Day up, his legs straightened and his knees locked. When Day

2 The record is unclear on the duration of this examination, but at ar-

gument counsel for the officers estimated it occurred over the course of

ten to fifteen minutes.

6 No. 19-1930

failed to respond either verbally or physically to two “ster-

num rubs” (a painful stimulus administered to an unrespon-

sive subject’s chest to invoke a reaction), the driver asked Ser-

geant Wooten to call a second ambulance.

The second ambulance arrived with a different team of

paramedics, approximately forty-three minutes after the first

ambulance had arrived.3 Sometime between the departure of

the first ambulance and the arrival of the second, a second pair

of handcuffs was added to Day’s wrists.4 When the paramed-

ics arrived, Day’s eyes were open, and he was breathing, but

his pulse was weak. Day was loaded into the back of the am-

bulance and the paramedics began to perform CPR. After at-

tempting without success to revive Day for 30 minutes, he

was pronounced dead. The coroner dispatched to the scene

examined Day’s body and found no visible signs of trauma.

However, the autopsy report listed his cause of death as “Sud-

den Cardiac Death due to Acute Ischemic Change.” Listed as

contributory causes were “Sustained respiratory compromise

3 The Coroner’s Report records that the first ambulance arrived at “ap-

proximately 1:09 PM” and the second ambulance arrived at “approxi-

mately 1:52 PM.” (S.A. at 824–25.) Assuming the estimation that the first

medical examination lasted approximately ten to fifteen minutes is accu-

rate, we can surmise that roughly thirty minutes passed between the de-

parture of the first ambulance and the arrival of the second. The exact

amount of lapsed time, however, is not important for our purposes.

4 Adding a second pair of handcuffs, by attaching one to each wrist

and connecting them in the middle, is a method used on larger arrestees

to make the arrestee more comfortable by lessening the restrictiveness of

the handcuffs. See, e.g., Estate of Phillips v. City of Milwaukee, 123 F.3d 586,

589 (7th Cir. 1997); Day, 380 F. Supp. 3d at 821.

No. 19-1930 7

due to hands cuffed behind the back, obesity, underlying car-

diomyopathy.”

Throughout his time in custody, Day never complained

the handcuffs were too tight. Day complained of trouble

breathing, but never indicated this was caused or exacerbated

by the handcuffs. The first team of paramedics never asked

the officers to remove or modify the handcuffs or add a sec-

ond pair. In addition to the coroner’s report that Day exhib-

ited no visible signs of trauma, the autopsy report states there

were no “encircling contusions” or lacerations around Day’s

wrists.5 The only indication that the handcuffs were causing a

respiratory issue was the autopsy report, which also identi-

fied for the first time his underlying heart condition.

B. District Court Proceedings

Day’s mother and father sued under § 1983 in September

2017, and the defendants moved for summary judgment. Of-

ficer Denny and Sergeant Wooten asserted qualified immun-

ity. After considering the summary judgment motion, the dis-

trict court held Officer Denny and Sergeant Wooten were not

entitled to qualified immunity. The court first determined it

could not hold as a matter of law the officers had not violated

Day’s Fourth Amendment right against unreasonable seizure.

Day, 380 F. Supp. 3d at 824–26. The court next concluded “rea-

sonable officers would know they were violating an estab-

lished right by leaving Day’s hands cuffed behind his back

after he complained of difficulty breathing.” Id. at 827.

In arriving at this conclusion, the district court cited an un-

reported district court case to establish that officers act

5 (S.A. at 811.)

8 No. 19-1930

unreasonably by failing to consider an injury or condition

when handcuffing an arrestee. Id. (citing Salyers v. Alexandria

Police Dep’t, 2016 WL 2894438, at *3 (S.D. Ind. May 18, 2016)).

The district court also quoted a decision of this court for the

proposition that using excessively tight handcuffs and yank-

ing the arms of non-resisting, non-dangerous arrestees sus-

pected of committing only minor crimes is clearly established

as unlawful. Id. (quoting Payne v. Pauley, 337 F.3d 767, 780 (7th

Cir. 2003)). Based on these cases, and the fact that Day com-

plained of difficulty breathing and the officers “observed

some signs of distress,” the court held the officers’ conduct

was clearly established as a violation of Day’s rights. Id. at 828.

The court denied qualified immunity. The officers appealed.

II. Discussion

A. Jurisdiction

We first address jurisdiction. Appellate jurisdiction is lim-

ited to review of final decisions of the district courts. 28 U.S.C.

§ 1291. Although we generally may not review a district

court’s order until a final judgment is entered resolving all

claims of all parties, the finality requirement is satisfied where

a collateral order “conclusively determines a disputed ques-

tion that is separate from the merits of the case and is effec-

tively unreviewable on an appeal from the final judgment.”

Jones v. Clark, 630 F.3d 677, 679 (7th Cir. 2011) (citing Coopers

& Lybrand v. Livesay, 437 U.S. 463, 468 (1978)). A summary

judgment order denying qualified immunity to a public offi-

cial defendant is such an order that can be immediately re-

viewable “to the extent that it turns on an issue of law.” Id.

(citing Mitchell v. Forsyth, 472 U.S. 511, 528–30 (1985)).

No. 19-1930 9

The plaintiffs assert we lack jurisdiction over this appeal

because the defendants, despite claiming to concede the dis-

trict court’s assumed facts viewed in the light most favorable

to the plaintiffs, are asserting their own preferred version of

facts on disputed questions. We have already discussed why

the plaintiffs are wrong to argue that we and the defendants

must accept the plaintiffs’ version of the facts in this appeal.

It is true, however, that we cannot decide disputed fact ques-

tions in a qualified immunity appeal. We only have jurisdic-

tion “when the party seeking to invoke it makes a purely legal

argument that does not depend on disputed facts.” White, 509

F.3d at 833. Therefore, we must first determine whether the

defendants’ argument depends on disputed issues of fact,

which would preclude our review.

The primary factual dispute identified by the plaintiffs is

whether the first team of paramedics’ medical evaluation was

terminated because Day was medically cleared or because

Wooten refused further medical treatment. They assert the

district court acknowledged this as a disputed issue by stating

“Plaintiffs believe Sergeant Wooten refused hospitalization

on Day’s behalf, and had he not signed the Treat-

ment/Transport Refusal form, the paramedics may have de-

cided to transport Day to the hospital.” Day, 380 F. Supp. 3d

at 820. At argument, the plaintiffs also pointed to evidence

that the paramedics may have included false information in

their medical report or may have been prevented from con-

ducting a full examination due to Day’s hands being cuffed

behind his back.

As an initial matter, the suggestion that the paramedics in-

cluded false information in their report or failed to properly

complete a full evaluation are irrelevant to what Officer

10 No. 19-1930

Denny and Sergeant Wooten knew at the time of the incident.

Our analysis hinges on whether reasonable officers under the

circumstances would know their conduct violated a clearly

established right. Mullenix v. Luna, 136 S. Ct. 305, 308 (2015);

Sow v. Fortville Police Dep’t, 636 F.3d 293, 303 (7th Cir. 2011)

(holding that, in an excessive force case, “the ‘reasonableness’

of the use of force is judged from the perspective of a reason-

able officer on the scene”). Therefore, the only relevant ques-

tion is what the paramedics communicated to the officers at

the scene.

The district court recognized as undisputed that the para-

medics concluded, based on their evaluation, “Day did not

need to be transported to the hospital for medical treatment.”

Day, 380 F. Supp. 3d at 820. The paramedics testified that law

enforcement has no authority to refuse transport to a hospital

if the medical personnel believe hospitalization is necessary.

Sergeant Wooten could not terminate the examination be-

cause he had no authority to do so. The district court also

found that when an officer signs for a handcuffed arrestee, he

“signs this form as a witness to the transfer, not as a repre-

sentative of the detainee,” and that the medics require an of-

ficer to sign the form “when [they] decide that a handcuffed

prisoner is not going to go to the hospital.” Id. Thus, regard-

less of the title or intended use of the form Sergeant Wooten

signed, there is no genuine dispute that the paramedics con-

cluded their evaluation because they believed Day did not

need further treatment.

Moreover, even assuming a factual dispute exists regard-

ing the termination of the examination, we need not resolve

that dispute to reach our conclusion today. Even if the officers

were not entitled to rely on the judgment of the medical

No. 19-1930 11

professionals, they were still entitled to qualified immunity

because there was no clearly established law to put the offic-

ers on notice that handcuffing Day under the circumstances

of this case violated his constitutional rights.

The plaintiffs also dispute whether a second pair of hand-

cuffs was added to Day’s wrists and, if so, when it was added.

But the district court assumed in its statement of facts that a

second pair of handcuffs was added, and that the second pair

was added before the second ambulance arrived. Id. at 821.

Since we accept the district court’s assumed facts for this ap-

peal, we assume this as well. Furthermore, as we explain be-

low, the addition of the second pair of handcuffs does not

change the outcome of this case. Accordingly, we have juris-

diction to address the purely legal question presented by this

appeal.

B. Denial of Qualified Immunity

We review de novo a district court’s denial of summary

judgment on a qualified immunity defense. Rooni v. Biser, 742

F.3d 737, 740 (7th Cir. 2014). As explained previously, we ac-

cept the facts assumed by the district court and the undis-

puted record evidence viewed in the light most favorable to

the plaintiffs. White, 509 F.3d at 833 & n.5.

A public official defendant is entitled to qualified immun-

ity unless two disqualifying criteria are met. First, the evi-

dence construed in the light most favorable to the plaintiff

must support a finding that the defendant violated the plain-

tiff’s constitutional right. Second, that right must have been

clearly established at the time of the violation. Stainback v.

Dixon, 569 F.3d 767, 770 (7th Cir. 2009). Courts may “exercise

their sound discretion in deciding which of the two prongs of

12 No. 19-1930

the qualified immunity analysis should be addressed first in

light of the circumstances in the particular case at hand.” Pear-

son v. Callahan, 555 U.S. 223, 236 (2009). “A clearly established

right is one that is ‘sufficiently clear that every reasonable of-

ficial would have understood that what he is doing violates that

right.’” Mullenix, 136 S. Ct. at 308 (emphasis added).

The Fourth Amendment protects an individual’s right to

be free from unreasonable seizures of his person. U.S. Const.

amend. IV. When an officer uses greater force than reasonably

necessary to make an arrest, he violates the arrestee’s Fourth

Amendment right. Payne v. Pauley, 337 F.3d 767, 778 (7th Cir.

2003). Importantly, “the ‘reasonableness’ of the use of force is

judged from the perspective of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight.” Sow, 636

F.3d at 303.

To defeat qualified immunity, however, the right must be

defined more specifically than simply the general right to be

free from unreasonable seizure. The Supreme Court has

stated that “[s]pecificity is especially important in the Fourth

Amendment context, where … it is sometimes difficult for an

officer to determine how the relevant legal doctrine, here ex-

cessive force, will apply to the factual situation the officer con-

fronts.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018).

The district court defined the rights at issue as Day’s right

to be free from excessively tight handcuffs and his right to

have the officers consider his injury or condition in determin-

ing the appropriateness of the handcuff positioning. The court

concluded that the officers’ conduct violated those rights.

However, there is no Seventh Circuit precedent clearly estab-

lishing that the conduct the officers engaged in violated either

of those rights.

No. 19-1930 13

The plaintiffs point to Payne v. Pauley, 337 F.3d 767 (7th Cir.

2003), and identify it as the best case to clearly establish the

right to be free from excessively tight handcuffs. The district

court quoted and cited this case for that principle as well. In

Payne, we established the following right: “it was unlawful to

use excessively tight handcuffs and violently yank the arms

of arrestees who were not resisting arrest, did not disobey the

orders of a police officer, did not pose a threat to the safety of

the officer or others, and were suspected of committing only

minor crimes.” Id. at 780. In Payne, the plaintiff alleged (and

we accepted for purposes of the appeal) that two police offic-

ers grappled and struggled over her arm for thirty minutes as

they argued about who would handcuff her, jerked her arm

behind her back, slammed handcuffs onto her wrist, tight-

ened them so tight that she experienced pain and numbness

in her hands, and refused to loosen them when she com-

plained. Id. at 774–75. The plaintiff alleged she was treated

this way even though she was not resisting and had commit-

ted no offense other than voicing disagreement with an irate

officer’s racist remarks. Id.

Payne does not help the plaintiffs because it involves cir-

cumstances and conduct drastically different than this case.

Day was suspected of shoplifting while armed with a gun, a

much more serious offense than the plaintiff in Payne (who

had allegedly done nothing wrong). It is also undisputed that

Day was not cooperative: he repeatedly changed position de-

spite the officer’s instructions to remain seated upright, and

he argued with the officers to let him go. More importantly,

Officer Denny and Sergeant Wooten did not violently yank or

jerk Day’s arms and shoulders, or any of Day’s person for that

matter. Furthermore, the handcuffs in Payne were much

tighter than they needed to be to accomplish the purpose of

14 No. 19-1930

detaining the arrestee, to the point of causing visible physical

injury. There is no suggestion that the handcuffs used on Day

were any tighter than would have been typically used to re-

strain an arrestee in similar circumstances. In fact, the coroner

noted no visible signs of trauma, and the autopsy report indi-

cated no lacerations or contusions on Day’s wrists. The rule

announced in Payne is inapposite.

The other cases pointed to by the plaintiffs to establish a

right to be free from excessively tight handcuffs—Tibbs v. City

of Chicago, 469 F.3d 661 (7th Cir. 2006), and Rooni v. Biser, 742

F.3d 737 (7th Cir. 2014)—similarly fail to clearly establish that

the officers’ conduct violated that right. Tibbs recognized that,

under certain circumstances, the use of excessively tight

handcuffs might constitute excessive force in violation of the

Fourth Amendment. 469 F.3d at 666 (citing Payne, 337 F.3d at

767). However, we held the officer’s actions in that case were

objectively reasonable where the plaintiff complained “once

about his handcuffs without elaborating on any injury, numb-

ness, or degree of pain.” Id. Thus, Tibbs establishes that, absent

any indication an officer is aware the handcuff tightness or

positioning is causing unnecessary pain or injury, the officer

acts reasonably in not modifying the handcuffs.

Likewise, Rooni establishes the right of a person “to be free

from an officer’s knowing use of handcuffs in a way that

would inflict unnecessary pain or injury, if that person pre-

sents little or no risk of flight or threat of injury.” 742 F.3d at

742. Once again, the key fact is that the officer must know the

handcuffs will cause unnecessary pain or injury. Rooni fo-

cused on the importance of multiple and specific complaints

by the arrestee about the nature of his pain or injury. Id. at

742–43 (collecting cases, distinguishing Tibbs because

No. 19-1930 15

“plaintiff complained the handcuffs were on too tight but did

not indicate the degree of pain,” and a case in which the plain-

tiff complained once but did not elaborate on degree or nature

of pain). Because the plaintiff complained only once that the

handcuffs were too tight without further elaboration, we con-

cluded “there was nothing that would have alerted [the of-

ficer] to the fact that a constitutional violation was looming.”

Id. at 743.

Day never complained that the tightness of the handcuffs

was restricting his breathing. The record contains no evidence

that there was any indication the handcuffs were the cause of

Day’s breathing difficulty until the autopsy report was re-

leased. Thus, Day’s right “to be free from an officer’s knowing

use of handcuffs in a way that would inflict unnecessary pain

or injury” was not violated.6

The closely related right asserted by the district court and

the plaintiffs is the right to have the arresting officer consider

the arrestee’s injury or condition when handcuffing the ar-

restee. The district court erred, however, by relying on Salyers

v. Alexandria Police Department for the principle that “officers

act unreasonably by failing to consider an injury or condition

while handcuffing an individual.” Day, 380 F. Supp. 3d at 827.

Salyers is an unreported district court opinion. We have con-

clusively stated that district court opinions cannot clearly es-

tablish a constitutional right because they are not binding

precedential authority. Mason-Funk v. City of Neenah, 895 F.3d

6 We reach this conclusion even without relying on the additional facts

that the first paramedic team found Day’s breathing and oxygen levels to

be good, never requested or attempted to modify Day’s handcuffs, and

concluded he did not need to be hospitalized for further medical treat-

ment.

16 No. 19-1930

504, 509 (7th Cir. 2018). Therefore, if the right relied upon in

Salyers is a clearly established one, it must be clearly estab-

lished by some other source.

Salyers relied on, and the plaintiffs direct our attention to,

our 2009 decision in Stainback v. Dixon, 569 F.3d 767 (7th Cir.

2009). That case involved an arrestee with preexisting arm-

and-shoulder injuries that were exacerbated when law en-

forcement handcuffed him behind his back. The arrestee in

Stainback complained the handcuffs were hurting his shoul-

ders, but never told the officers of his preexisting injuries. If

the officers had known of the preexisting injury, we agreed

“they certainly would have been obligated to consider that in-

formation, together with the other relevant circumstances, in

determining whether it was appropriate to handcuff” the ar-

restee. Id. at 773. However, we held the officers were entitled

to qualified immunity because they did not use the handcuffs

“in a manner that would clearly injure or harm a typical ar-

restee,” and it was not apparent to the officers, nor were they

informed, that the arrestee had a preexisting condition that

could be aggravated by the handcuffs. Id. “[A] reasonable of-

ficer cannot be expected to accommodate an injury that is not

apparent or that otherwise has not been made known to him.”

Id.

Thus, Stainback only clearly establishes the right to have a

known injury or condition considered, together with other cir-

cumstances, by officers when handcuffing. Stainback fails to

clearly establish that Officer Denny and Sergeant Wooten’s

conduct was violative. Just as the arrestee in Stainback com-

plained generally of shoulder pain but never explained the ef-

fect of the handcuffs on his preexisting injury, Day com-

plained he was having trouble breathing but never

No. 19-1930 17

complained that this was caused or exacerbated by his hand-

cuffs as opposed to his exertion during the chase preceding

his arrest. The officers (and apparently Day himself) were also

unaware of Day’s underlying heart condition, which also con-

tributed to his lack of oxygen according to the autopsy report.

In Stainback, we acknowledged “in some cases, the fact that

an act will cause pain or injury will be clear form the nature

of the act itself.” Id. at 772. We concluded, however, that it

would not be clear to the officers that the arrestee’s shoulder

pain was caused by the act of cuffing his hands behind his

back. Id. at 773. It is even less obvious under the circumstances

of this case that Day’s trouble breathing was caused by hand-

cuff positioning. The record does not show this would be ap-

parent to the officers at the time of the arrest.7 Accordingly,

like the right in Payne, Rooni, and Tibbs, the right at issue in

7 The plaintiffs suggest that the addition of a second pair of handcuffs

before the second ambulance arrived is evidence of the officers’ awareness

that the single pair of handcuffs had been restricting Day’s breathing. This

is entirely speculative and goes well beyond a reasonable inference to

which the plaintiffs are entitled. See White v. City of Chicago, 829 F.3d 837,

841 (7th Cir. 2016). Adding a second pair of handcuffs indisputably pro-

vides more comfort to an arrestee; there is no reason to believe the second

pair was added to relieve Day’s breathing as opposed to simply providing

more comfort to an arrestee who, at that late point, was obviously suffer-

ing a medical trauma. In fact, the district court found the officers added

the second pair of handcuffs at that point “because they believed Day was

having a medical problem,” not because they specifically understood the

handcuffs were causing his breathing difficulty. Furthermore, even if the

addition of the second pair of handcuffs is evidence that the officers be-

came aware that the first pair was restricting his breathing, it would then

also be evidence that the officers did consider Day’s medical condition and

modified the handcuffs when it became apparent they were causing a

problem. Either way, this fact does not help the plaintiffs.

18 No. 19-1930

Stainback to have a known injury or condition considered by

officers when handcuffing an arrestee is not implicated by the

facts of this case.

Given the facts as assumed by the district court and the

information known to the officers at the time of the arrest, the

only right plaintiffs can assert would be the right of an out-of-

breath arrestee to not have his hands cuffed behind his back

after he complains of difficulty breathing. We find no Seventh

Circuit precedent clearly establishing such a right. The cases

relied upon by the district court and the plaintiffs present cir-

cumstances far different, and therefore cannot clearly estab-

lish that the officers’ conduct violated Day’s rights.

One further point must be addressed. The Supreme Court

has stated that even in the absence of existing precedent ad-

dressing similar circumstances, “there can be the rare ‘obvi-

ous case,’ where the unlawfulness of the officer’s conduct is

sufficiently clear.” District of Columbia v. Wesby, 138 S. Ct. 577,

590 (2018). This case is certainly not one of those rare obvious

cases. As already discussed, the handcuffs were used in a

manner that would not have harmed an average arrestee, and

there is no evidence the officers were aware the handcuffs

were causing Day’s breathing trouble. The officers’ conduct

under the circumstances was not obviously unlawful.

III. Conclusion

This case arose from an unfortunate tragedy. However,

the officers did not violate any clearly established right. Ac-

cordingly, the district court’s judgment denying Officer

Denny and Sergeant Wooten’s qualified immunity defense is

REVERSED and the case is REMANDED for proceedings con-

sistent with this opinion.