Fernando Lopez v. Sheriff of Cook County

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 20-1681

FERNANDO LOPEZ,

Plaintiff-Appellant,

v.

SHERIFF OF COOK COUNTY, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 16 C 10931 — Edmond E. Chang, Judge.

____________________

ARGUED DECEMBER 4, 2020 — DECIDED APRIL 9, 2021

____________________

Before KANNE, WOOD, and SCUDDER, Circuit Judges.

SCUDDER, Circuit Judge. Nothing much good happens after

3:00 a.m. The early morning hours of November 30, 2014 out-

side the Funky Buddha Lounge on Chicago’s West Side were

no different. That morning, upon hearing a gunshot, Officer

Michael Raines, an off-duty Cook County correctional officer

out celebrating a friend’s birthday, approached the scene of a

scuffle between patrons outside the Lounge. Fernando Lopez

was present and pulled a gun, firing two shots into the air.

2 No. 20-1681

Having seen Lopez fire near people on a crowded street, Of-

ficer Raines confronted and shot Lopez multiple times in the

span of three seconds. Lopez reacted by dropping his gun and

scampering toward the sidewalk outside the bar. Just as

Raines began to chase after him, Lopez’s friend Mario Orta

picked up the dropped gun and fired at Raines—but missed.

Officer Raines then used Lopez as a human shield in a stand-

off with Orta for several minutes until Orta fled. The scene

was chaotic and everything happened fast.

Lopez survived and brought a civil rights suit alleging Of-

ficer Raines used excessive force against him in violation of

the Fourth Amendment. The district court granted summary

judgment for the defendants, concluding that Officer Raines

was entitled to qualified immunity because his use of deadly

force did not violate clearly established law. We affirm,

though not without the same pause expressed by the district

court. Our review of the record, including video footage of the

events, leaves us with the impression that although the cir-

cumstances were volatile, Officer Raines may have been able

to avoid any use of lethal force. We cannot conclude, however,

that his decision to the contrary violated clearly established

law.

I

A

Our retelling of the facts tracks the district court’s meticu-

lous recitation at summary judgment. We view all facts in the

light most favorable to Lopez as the nonmovant and draw all

reasonable inferences in his favor. See Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). We may also

take stock of what the video evidence shows without favoring

No. 20-1681 3

Lopez where the video contradicts his view of the facts. See

Scott v. Harris, 550 U.S. 372, 378–81 (2007); Horton v. Pobjecky,

883 F.3d 941, 944 (7th Cir. 2018).

Security camera timestamps show that at about 3:55 a.m.

on November 30, 2014, many people were loitering outside

the Funky Buddha Lounge. Fernando Lopez was driving a

group of his friends westbound on Grand Avenue when he

sideswiped an SUV parked in front of the Lounge. A group of

bystanders saw this and reacted by swarming Lopez’s car and

grabbing and punching at him through an open window. The

already tense situation then escalated.

One of the passengers exited Lopez’s car, displayed a

handgun, and fired a warning shot into the air. Lopez also got

out of the car, grabbed the passenger’s gun, and waved it

around in the air—presumably to scare off the group that had

encircled his car. Lopez then walked toward a few of the men

in the now-dispersed group, crossing the street and alternat-

ing between pointing the gun at them and up in the air as if

to tell everyone not to mess with him.

While all of this unfolded, Michael Raines, a correctional

officer with the Cook County Sheriff’s Office who had been

out celebrating a friend’s birthday, arrived on the scene at

3:56:11 a.m., likely after hearing the initial gunshot from a

nearby bar. The video footage shows Raines running onto

Grand Avenue, at an intersection not more than a few car

lengths from where Lopez stood. Just a few seconds after

Raines came onto the scene, Lopez turned away from his flee-

ing attackers and walked back toward his car. While doing so,

he stopped in the middle of the street and fired two shots at

an upward angle in the general direction of a few fleeing

4 No. 20-1681

Lounge-goers. Officer Raines then approached Lopez with his

own gun drawn.

It was now 3:56:22 a.m. Raines and Lopez walked toward

each other—both visibly armed—though it was not clear

whether Lopez had seen Raines by this point. Lopez waved

his gun up and down, though he does not appear to have

aimed directly at Officer Raines. For his part, Raines had his

gun aimed at Lopez. Lopez then reached to open his car door,

but Raines started shooting before he could get inside the car

(at about 3:56:27 a.m.). Lopez—hit by at least one bullet—

turned, dropped his gun, and started to stagger away. Raines

stayed focused on Lopez and continued to fire for two more

seconds, stopping at 3:56:30 a.m. All told, Raines appears to

have fired six rounds in three seconds.

Injured but still standing, Lopez then ran around the back

of his car, eventually reaching the sidewalk right outside the

Lounge at about 3:56:32 a.m. Officer Raines kept pursuing

Lopez, who was holding himself up by leaning against the

Lounge’s wall. As Raines followed and approached Lopez,

Mario Orta, a passenger in Lopez’s car, picked up the

dropped gun and almost immediately fired a shot directly at

Officer Raines (at about 3:56:32 a.m.). The shot missed. Raines

reached Lopez along the Lounge’s exterior wall just two sec-

onds later.

What followed was bizarre and dangerous—but it all hap-

pened and was captured on several security cameras. Video

footage from one of the cameras may be accessed at

https://www.chicagotribune.com/news/breaking/ct-funky-

buddha-gunfight-sentencing-20170725-story.html. For about

three and a half minutes, Mario Orta (Lopez’s friend) and Of-

ficer Raines engaged in a protracted standoff with guns

No. 20-1681 5

pointed at one another. At several points in the standoff, Orta

circled Raines, getting as close as a couple of feet away from

him. Throughout the standoff with Orta, Raines simultane-

ously restrained Lopez—now wounded, but conscious—and

used him as a human shield to prevent Orta from getting a

clean shot. At one point, Orta entered the Lounge, seemingly

looking for another route to approach Raines. Orta eventually

reemerged from the Lounge’s front entrance at 3:56:54 a.m.

and aimed his gun squarely at Raines. Orta started to walk

off, but then again approached Raines at 3:57:13 a.m. During

this confrontation, Officer Raines alternated between holding

the gun at Lopez’s head, using it to wave off bystanders who

tried to diffuse the situation, and pointing his gun straight at

Orta. Lopez, injured but still alert, repeatedly swatted at

Raines’s gun in an effort to dislodge it.

At about 4:00:10 a.m., less than five minutes after events

began with an errant car sideswipe, Orta fled the scene. That

no one died during the chaotic melee is astonishing.

B

Police and paramedics soon arrived at the scene. Lopez

survived and later faced criminal charges in Cook County,

where he pleaded guilty to a state law firearms offense. See

720 ILCS 5/24-1.2(a)(2) (defining and criminalizing the aggra-

vated discharge of a firearm). He also brought suit in federal

court under 42 U.S.C. § 1983 against Officer Raines (and now

that Raines has since passed away, against his special repre-

sentative), the Sheriff of Cook County, and Cook County.

Lopez alleged that Raines used excessive force in violation of

the Fourth Amendment. He also brought a related Monell lia-

bility claim against Cook County.

6 No. 20-1681

The defendants moved for summary judgment, contend-

ing that Officer Raines did not use excessive force and that

Lopez’s § 1983 action was barred by Heck v. Humphrey, 512

U.S. 477 (1994), on the view that the claim necessarily under-

mines the validity of Lopez’s conviction in Cook County. The

defendants further argued that Officer Raines was entitled to

qualified immunity regardless of the merits of the excessive

force claim. While Lopez disputed whether qualified immun-

ity applied to Raines’s specific conduct, he did not contend

that Officer Raines was ineligible to assert the defense on the

basis that the challenged conduct occurred while Raines was

off duty. Doing otherwise would have undermined the basis

for Lopez’s § 1983 suit, which requires that a defendant act

“under color of state law.” West v. Atkins, 487 U.S. 42, 48

(1988). Our case law also makes plain that Raines’s conduct,

even though off duty, could constitute state action. See Pickrel

v. City of Springfield, 45 F.3d 1115, 1118 (7th Cir. 1995) (“Decid-

ing whether a police officer acted under color of state law

should turn largely on the nature of the specific acts the police

officer performed, rather than on merely whether he was ac-

tively assigned at the moment to the performance of police

duties.”).

The district court entered summary judgment for the de-

fendants, concluding that even though Lopez’s suit was not

Heck-barred, Officer Raines was entitled to qualified immun-

ity. That determination, the district court observed, meant

that the rest of Lopez’s claims necessarily failed.

The district court chose to proceed first to the second

prong of the qualified immunity analysis—whether Officer

Raines violated clearly established law. See Pearson v. Calla-

han, 555 U.S. 223, 236 (2009) (concluding that judges may

No. 20-1681 7

exercise “discretion in deciding which of the two prongs of

the qualified immunity analysis should be addressed first”).

While emphasizing that Raines’s conduct is open to criticism,

the district court explained that the law affords police officers

significant deference in making snap decisions in the heat of

the moment, with officers losing the benefit of qualified im-

munity only when they violate clearly established law. Officer

Raines, the district court observed, heard a gunshot, re-

sponded, and then saw Lopez fire a weapon around a group

of people standing outside and near the Funky Buddha

Lounge. The court further observed that after shooting Lopez,

Raines was fired upon and subsequently engaged in a pro-

longed standoff with an armed assailant while trying to sub-

due an injured-but-resisting Lopez. With these unique and

fast-moving facts front of mind, the district court concluded

that Officer Raines did not violate clearly established law and

was therefore entitled to qualified immunity.

Lopez now appeals.

II

We first consider the defendants’ argument that Heck v.

Humphrey bars Lopez’s § 1983 claim. This contention is way

off the mark.

A prisoner cannot seek damages against a governmental

entity for a violation of his constitutional rights when a judg-

ment in the prisoner’s favor “would necessarily imply the in-

validity of his conviction or sentence.” Heck, 512 U.S. at 486–

87. Allowing Lopez’s excessive force claim to proceed, the de-

fendants contend, implies the invalidity of Lopez’s conviction

for discharging a firearm. We agree with the district court that

Lopez’s conviction does not bar his § 1983 suit because

8 No. 20-1681

success on the Fourth Amendment excessive force claim does

not depend on any fact undermining or implying the invalid-

ity of the state law conviction.

Lopez pleaded guilty to aggravated discharge of a firearm,

which requires a person to knowingly or intentionally fire in

the direction of another person. See 720 ILCS 5/24-1.2(a)(2).

Under Illinois law, however, a person can be found guilty of

that offense without posing a threat of serious harm to an-

other. See People v. Ellis, 929 N.E.2d 1245, 1248–49 (Ill. App. Ct.

2010). This means Lopez can be guilty of aggravated dis-

charge of a firearm while also having had excessive force used

against him by an officer after the fact. These two realities are

not mutually exclusive. So Heck does not bar Lopez’s § 1983

claim.

III

A

We come now to the district court’s grant of qualified im-

munity. The doctrine of qualified immunity balances dueling

interests—allowing officials to perform their duties reasona-

bly without fear of liability on the one hand and “affording

members of the public the ability to vindicate constitutional

violations by government officials who abuse their offices” on

the other. See Weinmann v. McClone, 787 F.3d 444, 447–48 (7th

Cir. 2015) (cleaned up). In evaluating a law enforcement of-

ficer’s entitlement to qualified immunity, we undertake the

twofold inquiry of asking whether his conduct violated a con-

stitutional right and, if so, whether that right was clearly es-

tablished at the time of the alleged violation. See District of

Columbia v. Wesby, 138 S. Ct. 577, 589 (2018). We may choose

which prong to address first. See Pearson, 555 U.S. at 236.

No. 20-1681 9

Like the district court, we begin and end with the second

step of the analysis: determining whether Officer Raines vio-

lated Fernando Lopez’s clearly established Fourth Amend-

ment right to be free from an unreasonable seizure. For the

law to be clearly established, the “existing precedent must

have placed the statutory or constitutional question beyond

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

Assessing whether an officer used excessive force turns on

whether the officer’s actions are “objectively reasonable in

light of the facts and circumstances confronting [the officer].”

Graham v. Connor, 490 U.S. 386, 397 (1989) (internal quotation

omitted). We must consider, too, “the facts and circumstances

of each particular case, including the severity of the crime at

issue, whether the suspect poses an immediate threat to safety

of the officers or others, and whether he is actively resisting

arrest or attempting to evade arrest by flight.” Id. at 396.

This context-specific inquiry notwithstanding, it is firmly

established that a “person has a right not to be seized through

the use of deadly force unless he puts another person (includ-

ing a police officer) in imminent danger or he is actively re-

sisting arrest and the circumstances warrant that degree of

force.” Strand v. Minchuk, 910 F.3d 909, 915 (7th Cir. 2018)

(quoting Weinmann, 787 F.3d at 448); see also Tennessee v. Gar-

ner, 471 U.S. 1, 11–12 (1985). But these situations are fluid.

While an officer may be authorized to use deadly force at one

moment, it is not a blank check. When an individual has be-

come “subdued and [is] complying with the officer’s orders,”

the officer may no longer use deadly force. Johnson v. Scott, 576

F.3d 658, 660 (7th Cir. 2009). Yet we must be careful not to al-

low the benefit of hindsight to cause us to discount the reality

10 No. 20-1681

that officers must make quick decisions as to how much force,

if any, to employ. See Graham, 490 U.S. at 396–97.

While cases like Garner and Graham are instructive in the

excessive force context, they “do not by themselves create

clearly established law outside an obvious case.” Kisela v.

Hughes, 138 S. Ct. 1148, 1153 (2018) (internal citations omit-

ted). Determining whether an officer violates clearly estab-

lished law requires a look at past cases with specificity. See id.

at 1152–53. The Supreme Court has time and again instructed

lower courts “not to define clearly established law at a high

level of generality.” Mullenix v. Luna, 577 U.S. 7, 12 (2015)

(quoting al-Kidd, 563 U.S. at 742). Specificity is critical to mak-

ing qualified immunity a workable doctrine in the Fourth

Amendment context, where it “is sometimes difficult for an

officer to determine how the relevant legal doctrine . . . will

apply to the factual situation the officer confronts.” Id. at 308.

But this requirement is not unbending. The prong-two

clearly-established-law assessment does not require a case

with identical factual circumstances, lest qualified immunity

become absolute immunity. See Kisela, 138 S. Ct. at 1152. Still,

the right must be so clearly established such that it is “suffi-

ciently clear that every reasonable official would have under-

stood that what he is doing violates that right.” Reichle v. How-

ards, 132 S. Ct. 2088, 2093 (2012) (cleaned up). That sounds like

a high bar because it is—qualified immunity protects “all but

the plainly incompetent or those who knowingly violate the

law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

B

The district court approached this inquiry the exact right

way, looking first to past precedent to ask whether any cases

No. 20-1681 11

squarely govern the facts at issue. In following suit, we too

think it best to consider Officer Raines’s use of force that early

morning in two distinct phases: the shooting of Lopez and the

use of Lopez as a human shield during the sidewalk standoff.

Recall the scene when Officer Raines arrived. It was just

before 4 a.m. when Raines heard a gunshot from a nearby bar

and ran to Grand Avenue, where he saw Fernando Lopez fire

two shots into the air, in close proximity to the scattering

crowd outside the Funky Buddha Lounge. Lopez then turned

in Raines’s direction and began walking toward him, all the

while displaying and waving a gun.

Though we have tried our best to describe the incident, a

picture is worth a thousand words.

This still image of security camera video footage shows the

positioning and proximity of Lopez (indicated by a triangle)

and Officer Raines (circled) when Lopez, while standing in

12 No. 20-1681

the middle of Grand Avenue, fired twice into the air at 3:56:20

a.m.

Neither the Supreme Court’s precedent nor our own

clearly establishes that Officer Raines’s split-second decision

to open fire was unlawful. There were many people on the

city street when Lopez, just moments before, opened fire. All

Raines knew at the time he fired was that Lopez had just

popped off two rounds and that Lopez was now walking in

his general direction with gun in hand. A reasonable officer

could have concluded that Lopez was an imminent threat

both to the officer and the bystanders on the street and outside

the Lounge.

Lopez insists that Officer Raines should have given him a

warning. Whether Raines did so is disputed. At summary

judgment and without any clear evidence to the contrary, we

must credit Lopez’s contention that Raines did not announce

himself as a police officer. A warning is decidedly preferred—

but it is not required in every circumstance. See Pobjecky, 883

F.3d at 952 (“Garner requires an officer to warn ‘where feasi-

ble’ but does not require an officer to warn under all circum-

stances.”). Given the lack of clearly established law, Officer

Raines is entitled to qualified immunity as to the first shot.

From here the case gets much harder.

Lopez contends that even if the first shot did not trans-

gress established law, Raines’s subsequent shots clearly vio-

lated Lopez’s constitutional right not to have lethal force used

against him once he was subdued by the initial shot. But that

contention too discounts the speed and unpredictability with

which events unfolded on the street that morning. As the dis-

trict court explained, the video shows that Raines first shot

Lopez at 3:56:27 a.m. Lopez dropped his gun one second later,

No. 20-1681 13

but as he turned and started to run, Officer Raines fired for

two more seconds, until 3:56:30 a.m. Raines fired all of his

shots in the span of three seconds.

In retrospect, and with the benefit of the security footage,

it is inviting to parse the multiple shots fired into separate in-

dividual events. But we must consider them together in light

of how quickly—and in precisely what circumstances—eve-

rything transpired. Indeed, in this very context of qualified

immunity, the Supreme Court has emphasized that a proper

analysis must “allo[w] for the fact that police officers are often

forced to make split-second judgments—in circumstances

that are tense, uncertain, and rapidly evolving—about the

amount of force that is necessary in a particular situation.”

Plumhoff v. Rickard, 572 U.S. 765, 775 (2014) (alteration in orig-

inal) (quoting Graham, 490 U.S. at 396–97). Lopez cannot point

to a case that clearly establishes a reasonable officer cannot

use lethal force over the span of three seconds on an individ-

ual he had just seen fire his weapon, who has not surrendered,

and is still moving to evade capture.

Lopez points to precedent that we find either easily distin-

guishable or standing for principles that do not show that Of-

ficer Raines’s conduct violated clearly established law. Con-

sider, for instance, our decision in Ellis v. Wynalda, 999 F.2d

243 (7th Cir. 1993). Wynalda clearly establishes only that

“[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.” Id. at 247. That general proposition

is clear, but it does not change our analysis of Officer Raines’s

specific conduct. Wynalda is different because the victim there

was shot in the back while fleeing and did not have a gun—

unlike Lopez, who was armed, had just fired at least two shots

14 No. 20-1681

on a populated city street, and was walking in the direction of

an officer while displaying a gun.

Nor does Sledd v. Lindsay, 102 F.3d 282 (7th Cir. 1996), de-

feat qualified immunity for Officer Raines. In Sledd, we re-

versed a grant of qualified immunity because there were nu-

merous disputed questions of material fact that were, inci-

dentally, unaided by any video footage. See id. at 284. Even

more significant, Andrew Sledd was shot in his own home af-

ter police executed a disputed no-knock warrant—and cru-

cially, Sledd had not fired any shots in front of police. See id.

at 286. The shooting of Lopez, by contrast, happened on a

crowded city street only after Officer Raines saw Lopez fire

shots and walk toward him displaying the gun. Not only are

these cases distinguishable, but there is also recent precedent

with facts that more closely resemble the situation here.

Just two years ago, we held that an off-duty police of-

ficer—who did not announce himself—acted reasonably

when he shot and killed an unarmed, fleeing suspect at a

pizza parlor. See Pobjecky, 883 F.3d at 946. That case, while not

on all fours with the circumstances here, does lend support to

the district court’s conclusion that Officer Raines did not vio-

late clearly established law. At the very least, Pobjecky does not

“place[ ] the invalidity of [Raines’s conduct] beyond debate.”

Johnson v. Rogers, 944 F.3d 966, 969 (7th Cir. 2019).

C

Our assessment does not change when we consider Officer

Raines’s conduct on the sidewalk. Recall that after Raines shot

Lopez, Lopez quickly moved around the rear of his car and

scampered toward the sidewalk. Security footage shows

Lopez dropped his gun but was still fleeing. Raines followed

No. 20-1681 15

after him, quickly reaching Lopez on the sidewalk near the

entrance to the Lounge just a few seconds later (at 3:56:34

a.m.). As Officer Raines followed after Lopez, Mario Orta

picked up Lopez’s gun and immediately opened fire on

Raines—shooting directly at him but missing. Raines was

then forced to deal with two assailants—restraining an in-

jured Lopez and keeping a mobile, gun-toting Orta at bay.

Notice what Officer Raines did not do: he never again fired

his weapon. He instead used Lopez’s body as a buffer be-

tween himself and Orta, rotating his position (and the injured

Lopez) to react to Orta’s constant movement. Here, too, a pic-

ture may again clarify the scene.

This still image of security camera video footage shows one

snippet of the sidewalk standoff between Orta (indicated by a

rectangle) and Raines (circled) at 3:57:15 a.m. The picture

shows what we mean when we say that Officer Raines used

Lopez as a human shield.

16 No. 20-1681

To be sure, Raines aggressively restrained Lopez, at times

holding a gun to his head. You certainly (and rightly) will not

find this maneuver in a police training manual. But the quali-

fied immunity inquiry is not whether Officer Raines’s action

is immune from criticism. The question the Supreme Court

instructs courts to consider instead is whether Officer Raines

violated clearly established law. In our view, he did not.

Putting a gun to someone’s head is no doubt a use of force.

See Jacobs v. City of Chicago, 215 F.3d 758, 773 (7th Cir. 2000).

And the use of such force is unreasonable when the suspect is

subdued and complying with orders. See Johnson, 576 F.3d at

660. But Lopez was neither incapacitated nor complying with

orders. He was actively trying to swat Officer Raines’s gun

away as Raines tried to fend off an armed and dangerous

Orta. By the district court’s count, Lopez did this more than

17 times while Orta aimed his gun squarely at Raines.

The combination of these unusual facts compels our con-

clusion. We cannot say that Officer Raines’s actions on the

sidewalk violated law clearly established in 2014—especially

when considering the Supreme Court’s admonition to define

the violation with specificity. Try as Lopez might, there is no

analogous case to put Raines on notice that his conduct was

unlawful given the circumstances he faced in those early

morning hours.

Nor is this a situation where a violation is so egregious

that any reasonable officer would know they are violating the

Constitution notwithstanding the lack of an analogous deci-

sion. See Taylor v. Riojas, 141 S. Ct. 52, 53–54 (2020); Hope v.

Pelzer, 536 U.S. 730, 740–42 (2002); Estate of Escobedo v. Bender,

600 F.3d 770, 780 (7th Cir. 2010) (“[The] conduct was so pa-

tently violative of the constitutional right that reasonable

No. 20-1681 17

officials would know without guidance from a court.”). The

situation was too fast-moving, too unpredictable, and too vol-

atile to reach that conclusion. Raines could have reasonably

concluded he was acting lawfully in protecting himself and

the public when he subdued Lopez and tried to defuse the

situation by using him as a shield to ward off Mario Orta until

police arrived at the scene.

IV

What makes this case difficult is the distinct impression

the video leaves us with after watching it multiples times. By

the looks of it, there is a reasonable chance that Fernando

Lopez was about to get in his car and leave the scene right

when Officer Raines opened fire. That observation invites the

conclusion that Raines may not have needed to use lethal

force at all. This whole situation may have been avoided had

cooler heads prevailed that morning.

Hindsight—aided by watching this scene unfold frame by

frame on video footage from four distinct angles in the com-

fort of the courthouse—allows us to ponder how Officer

Raines could have best handled the situation. But that is not

our inquiry here. We are left to evaluate whether Raines’s con-

duct violated clearly established law, given the dangerous,

delicate, and dynamic circumstances he faced that morning

and the state of the law at the time. The benefit of hindsight

does not lower the clear and high bar that is the law of quali-

fied immunity. In this case that bar compels us to AFFIRM the

grant of qualified immunity.