# Fernando Lopez v. Sheriff of Cook County

> Court of Appeals for the Seventh Circuit · April 9, 2021 · 993 F.3d 981

URL: https://www.frixlaw.com/law-library/cases/4676215

## Case

- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** April 9, 2021
- **Citations:** 993 F.3d 981
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Scudder
- **Nature of suit:** civil
- **Cited by:** 51 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4676215

## How later opinions describe it (automated extraction)

- holding that video evidence may be considered at summary judgment phase without favoring the non-movant’s version of the facts
- noting that a court may “take stock” of video evidence “without favoring the nonmovant where the video contradicts his view of the facts.”
- stating “authoriz[ation] to use deadly force at one moment . . . is not a blank check”
- describing the “clearly established” requirement as a “high bar”

## Opinion text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4676215. Public record. Not legal advice.