Phillips v. Community Ins. Corp.

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1654

T AMARA P HILLIPS,

Plaintiff-Appellant,

v.

C OMMUNITY INSURANCE C ORPORATION, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 2:06-cv-01041—William E. Callahan, Jr., Magistrate Judge.

A RGUED O CTOBER 25, 2010—D ECIDED A PRIL 27, 2012

Before W OOD , W ILLIAMS, and T INDER, Circuit Judges.

W ILLIAMS, Circuit Judge. Tamara Phillips contends that

police officers used excessive force in arresting her

when they shot her four times in the leg with an SL6

baton launcher after she disregarded their orders to

come out of her car. Phillips’s case was tried to a jury,

which returned a verdict in the officers’ favor. Phillips

appeals, contending that the district court erroneously

denied her post-verdict motion for judgment as a matter

2 No. 10-1654

of law. Because we find that the officers used excessive

force and are not entitled to qualified immunity,

we reverse.

I. BACKGROUND

The facts in this case are largely undisputed. Around

7:00 p.m. on November 11, 2005, Lieutenant Russell Jack

and Officer James Hoffman from the Waukesha Police

Department received a dispatch reporting a possibly

intoxicated driver. The original caller described a black

car that was “all over the road.” After running the car’s

plates, police dispatch initially informed officers that the

plates “hit” to a black Nissan Maxima that had been

reported stolen.

Shortly afterward, a responding officer, Brandon

Pierce, pulled up the stolen vehicle record from his

squad car and called in to note that the “hit” was to a

car with the same license plate number but a different

color, make, and model—a silver Honda Civic. The

police dispatcher noted the discrepancy, stating that

the original caller had specified that the drunk driver

was in a black Nissan Maxima. Lieutenant Jack asked

the dispatcher to contact the original caller to verify the

car’s color and make. Though the caller could not be

reached, the dispatcher checked the vehicle record again

and alerted officers that, “the listed owner on the

Nissan Maxima is the complainant for the vehicle

theft on the Honda Civic, silver in color with that plate

assigned. So I am unsure why that plate is reassigned

to the Nissan Maxima.” Both cars were registered to the

No. 10-1654 3

same person: Tamara Phillips. Officer Hoffman later

testified that there was confusion surrounding the car,

the license plates it bore, and the fact that the plates

“hit” to a different vehicle.1

Within several minutes of receiving the dispatch, the

officers located the black Nissan Maxima, with its

door ajar, on a sidewalk near an apartment complex.

The driver had backed the car into a hedgerow. Behind

the hedgerow, there was an electrical box and a five-foot

drop-off into a neighboring parking lot. It is unclear

whether the car was still running, but the officers

testified that they believed it was because its lights

were on.

Officer Hoffman stated that the incident was treated

as a “high-risk traffic stop” because the car was believed

to be stolen, had stopped in a residential area, and

was pointed toward the street in the direction of the

officers. During a high-risk traffic stop, instead of

walking up to a car and exposing themselves to

potential danger, the officers will order the driver to

shut off the car, put the keys outside, step out, and walk

to a safe location where the person can be placed in

custody.

With the help of several other officers who had since

arrived at the scene, seven squad cars were strategically

1

It was later determined that Phillips had bought the Nissan

Maxima, after her other car, the Honda Civic, was stolen. The

Department of Transportation had reissued the same license

plate number for the new Nissan Maxima despite a general

policy barring reuse of license plate numbers from stolen cars.

4 No. 10-1654

placed around the Nissan Maxima. Once the squad cars

were in place, Lieutenant Jack radioed the dispatch and

said, “We have the person secured here, not in hand-

cuffs, but stabilized in the car.” Officer Hoffman pointed

his squad car’s headlights and spotlight toward the

vehicle to illuminate its interior. He saw one person

inside—a female driver who, at least initially, was

moving about inside the car.

The officers, who were equipped with body shields for

protection, identified themselves as police and loudly

commanded the driver to show her hands and get out of

the car. The driver did not comply, but instead reached

for a compartment in the vehicle and lit a cigarette.

At one point, the driver put both of her feet out of the

driver-side window onto the door, resting them near

the side-view mirror, while she leaned back toward

the center console. She also picked up a water bottle

and set it on the ground beside the car.

The officers estimated that they gave orders to the

driver continuously for ten minutes before deciding to

use their SL6. The SL6 Baton Launcher is a shoulder-

fired, semi-automatic firearm that fires polyurethane

bullets with a force equivalent to a .44 magnum pistol.

Its use has been deemed “less lethal” by the Waukesha

Police Department’s use of force policy, and is con-

sidered tantamount to using a bean-bag shotgun or a

hand baton. The “target area” for an SL6 is below a per-

son’s belly button, excluding the groin. The officers

testified that the SL6 is designed to be used against

persons exhibiting resistive, assaultive, or other dan-

gerous behavior.

No. 10-1654 5

Officer Hoffman was 40 to 50 feet away from

Phillips’s car when he fired a warning shot, which hit

the vehicle with a loud bang and left a baseball-sized dent

on the driver-side door. The officers then waited five

minutes while they issued commands ordering the

driver to get out of the car. At this point, the driver

was lying on the front seat toward the center console

with her bare legs outside the front driver-side door of

the car and her feet on the ground.

When the driver did not comply, the officers aimed at

her leg and fired. A few seconds later, the driver yelled

out in pain and reached down to her legs, but she did

not pull them back into the car or otherwise attempt

to protect herself. Another fifteen seconds passed and

the officers fired again. The driver did not move. The

officers waited another three seconds and shot again.

The driver again did not move. After another three sec-

onds, the officers fired again, hitting her a fourth time.

This time, the driver complied by “slumping” out of the

car and kneeling on the ground. Lieutenant Jack then

ordered the driver to stand back up and walk back-

wards toward him or she would be shot again. The

driver did as she was told and the officers arrested her.

Plaintiff-Appellant Tamara Phillips, who turned out to

be the very drunk driver—yet lawful owner of the car,

sustained two injuries on the inside of her lower right

leg in the ankle area and two other injuries to her upper

left leg. The most serious injury was to her right ankle,

where one of the bullets left a six-inch wound requiring

thirty stitches because the flesh was torn from the bone.

6 No. 10-1654

Phillips, who works as a personal trainer, was unable

to walk for a week, and walked with a cane for approxi-

mately three weeks.

On September 5, 2006, Phillips sued, claiming that

the officers had used excessive force in arresting her.

The case was tried twice. The first trial ended in a dead-

locked jury and the court declared a mistrial. The

second trial resulted in a verdict for the officers. After

the verdict, Phillips moved for judgment as a matter of

law, or, in the alternative, for a new trial. The court

denied the motion. This appeal followed.2

2

We note that Phillips did not move for judgment as a matter

of law before the case was submitted to the jury as required by

Federal Rule of Civil Procedure 50(a)(2). Normally, a party

that does not move for judgment as a matter of law before

the case goes to a jury loses the opportunity to make this

motion after the verdict. See Collins v. Illinois, 830 F.2d 692,

698 (7th Cir. 1987). Here, however, the defendants waived

objection to Phillips’s procedural default by failing to raise

this issue on appeal. See id. (considering judgment as a matter

of law even though the plaintiff did not move for a “directed

verdict” under Rule 50(a) because defendant failed to object);

see also Williams v. Runyon, 130 F.3d 568, 572 (3d Cir. 1997) (“Six

of our sister circuits have held that where a party did not

object to a movant’s Rule 50(b) motion specifically on the

grounds that the issue was waived by an inadequate Rule

50(a) motion, the party’s right to object on that basis is

itself waived.”) (citing cases). Even after Unitherm Food

Systems, Inc. v. Swift-Eckrich, Inc., 546 U.S. 394 (2006), which

reemphasized the strict requirements of Rule 50, we have held

(continued...)

No. 10-1654 7

II. ANALYSIS

We review a district court’s denial of a motion for

judgment as a matter of law de novo, asking whether

the evidence presented, combined with all reasonable

inferences permissibly drawn from it, is sufficient to

support the verdict when viewed in the light most favor-

able to the party winning the verdict. Artis v. Hitachi

Zosen Clearing, Inc., 967 F.2d 1132, 1139 (7th Cir. 1992). For

Phillips to be entitled to judgment as a matter of law,

the officers must have used excessive force in arresting

Phillips in violation of her Fourth Amendment right to

be free from unreasonable searches and seizures. See

McAllister v. Price, 615 F.3d 877, 884 (7th Cir. 2010). Fur-

thermore, for Phillips to prevail, the officers must not be

entitled to qualified immunity for their conduct.3 See

2

(...continued)

that “[a party’s] challenge to [the opposing party’s] failure

to adhere to the procedural requirements of Rule 50(a) . . . is

waivable.” See Wallace v. McGlothan, 606 F.3d 410, 418-19 (7th

Cir. 2010) (noting the Supreme Court’s decision in Unitherm).

3

Phillips briefly contends, without citing any authority, that

whether the officers are entitled to qualified immunity is not

properly before us because, although the officers moved for

judgment as a matter of law under Rule 50(a) before the jury

rendered its verdict, the officers did not renew their motion

after the verdict under Rule 50(b). But there was no need for

the officers to renew their motion because they were the

prevailing parties, having obtained a jury verdict in their

favor. See Advisory Committee Notes to Rule 50 (noting that

(continued...)

8 No. 10-1654

Pearson v. Callahan, 129 S. Ct. 808, 818 (2009).

A. Constitutional Violation

The nature and extent of force that may reasonably

be used to effectuate an arrest depends on the specific

circumstances of the arrest, including “the severity of

the crime at issue, whether the suspect poses an

immediate threat to the safety of the officers or others,

and whether he is actively resisting arrest or attempting

to evade arrest by flight.” Graham v. Connor, 490 U.S. 386,

396 (1989). “Determining whether the force used to

effect a particular seizure is ‘reasonable’ under the

Fourth Amendment requires a careful balancing of ‘the

nature and quality of the intrusion on the individual’s

Fourth Amendment interests’ against the countervailing

governmental interests at stake.” Id. (quoting United

States v. Place, 462 U.S. 696, 703 (1983)). An officer’s use

of force is unreasonable if, judging from the totality of the

circumstances at the time of the arrest, the officer uses

greater force than was reasonably necessary to effectuate

the arrest. Gonzalez v. City of Elgin, 578 F.3d 526, 539 (7th

Cir. 2009). We must also bear in mind when considering

the totality of the circumstances that “police officers

(...continued)

“a jury verdict for the moving party moots the issue”). It

would waste time and resources to require a party to move

for judgment as a matter of law under Rule 50(b), formerly

denominated “judgment nothwithstanding the verdict,” if

that party has obtained a jury verdict in its favor.

No. 10-1654 9

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.” Graham, 490 U.S. at 397. This con-

stitutional inquiry is objective and does not take

into account the motives or intent of the individual

officers. Id.

Objective reasonableness of force is a legal determina-

tion rather than a pure question of fact for the jury to

decide. Bell v. Irwin, 321 F.3d 637, 640 (7th Cir. 2003). We

defer to a jury’s determination of what occurred during

an arrest or whose testimony is credible. But a constitu-

tional tort is not “an analog of civil negligence.” Id. In a

traditional negligence case, we permit the jury to deter-

mine whether conduct was reasonable under the cir-

cumstances. In an excessive force case, while we accept

the factual inferences made by the jury, we must indep-

endently review the jury’s interpretation of what is rea-

sonable under the Fourth Amendment. Id.; cf. Ornelas

v. United States, 517 U.S. 690, 697 (1996) (“A policy of

sweeping deference [by appellate courts to factfinders’

determinations of probable cause] would permit . . . the

Fourth Amendment’s incidence to turn on whether dif-

ferent [factfinders] draw general conclusions that the

facts are sufficient or insufficient to constitute probable

cause. Such varied results would be inconsistent with

the idea of a unitary system of law.” (internal quotation

marks, alterations, and citation omitted)).

Independent review is particularly warranted when,

as here, the material facts of the case are essentially

10 No. 10-1654

uncontroverted. Although she testified at trial, Phillips

was unable to offer a description of the arrest because

she had very little memory of the incident and could

only “recall bits and pieces.” The officers’ account was

the only complete version provided to the jury and it

did not conflict with Phillips’s testimony. Any ambigu-

ities in the record we construe in the defendants’ favor.4

4

The dissent argues that judgment as a matter of law is

unwarranted “because the evidence surrounding [an] officer’s

use of force is often susceptible of different interpretations.”

Dissent Op. at 33 (quoting Cyrus v. Town of Mukwonago, 624

F.3d 856, 862 (7th Cir. 2010)). We certainly agree that summary

judgment is frequently inappropriate in excessive-force cases.

But we do not agree that there are conflicting interpretations

of the record that support the amount of force used in this

case. Abdullahi v. City of Madison is not to the contrary. 423

F.3d 763 (7th Cir. 2005). In Abdullahi, an arrestee suffocated

from a lung injury of unknown origin. Medical experts

offered dueling testimony at trial as to whether the arresting

officers’ use of force could have caused the severe lung

trauma. Id. at 766-67. Reversing the district court, we held

that it was for the jury to infer whether officers caused the

injury by kneeling on the arrestee’s back or whether the in-

jury was sustained prior to a struggle with police. Id. at 769-70.

The current case does not present a similar set of competing

facts or inferences. Consequently, “whether four shots was

too many under the circumstances” is not a question of

factual inferences but a determination of what is objectively

reasonable under the Fourth Amendment. Dissent Op. at 34.

When warranted, we and our sister circuits have recon-

sidered jury verdicts in favor of officers for violations of the

(continued...)

No. 10-1654 11

This leaves us to consider the core constitutional question:

whether use of multiple shots from an SL6 weapon to

secure a non-resisting, intoxicated arrestee amounted

to excessive force under these circumstances.

Phillips contends that the Graham factors weigh in her

favor because she posed no immediate threat to anyone

during the arrest, offered no resistance, and made no

attempt to flee. The defendants argue that their use

of the SL6 was justified because Phillips was drunk,

may have been driving a stolen car, and presented a

potential threat to the officers and the community.

1. Amount of Force Employed by the SL6 Weapon

To determine whether a constitutional violation has

occurred, we first evaluate the level of force used to

arrest Phillips. The record establishes that the force

exerted by an SL6 bullet is roughly comparable to a

projectile from a bean-bag shotgun. Other courts of

appeals have observed that baton launchers and similar

“impact weapons” employ a substantially greater degree

of force than other weapons categorized as “less lethal,”

4

(...continued)

Fourth Amendment. See Campbell v. Miller, 499 F.3d 711, 718-19

(7th Cir. 2007) (reversing jury verdict on reasonableness of

strip search in public); see also Manzanares v. Higdon, 575 F.3d

1135, 1144 (10th Cir. 2009) (reversing jury verdict on probable

cause); Mitchell v. Boelcke, 440 F.3d 300, 303 (6th Cir. 2006)

(reversing jury verdict on reasonable suspicion to detain

plaintiff).

12 No. 10-1654

such as pepper spray, tasers, or pain compliance tech-

niques. In Deorle v. Rutherford, the Ninth Circuit con-

sidered a bean-bag shotgun projectile as “something akin

to a rubber bullet.” 272 F.3d 1272, 1280 (9th Cir. 2001).

Deorle concluded that “the cloth-cased shot constitutes

force which has the capability of causing serious

injury, and in some instances does so.” An officer pro-

vided expert testimony that a “Use of Force Continuum . . .

would list an impact weapon high on the schedule

of force” and that “[i]t would be unreasonable for an

officer to use an impact weapon on an unarmed person.”

Id. at 1280 & n.17 “Such force is much greater than

that applied through the use of pepper spray . . . or a

painful compliance hold . . . .” Id. at 1279-80 (citations

omitted); see also Thompson v. City of Chicago, 472 F.3d

444, 451 & nn.18-19 (7th Cir. 2006) (officer testimony

regarding Chicago Police Department policies limiting

use of “impact weapons” to “high-level, high-risk assail-

ants” and describing such weapons as “unwarranted

against a suspect resisting arrest” by punching and strug-

gling); Mercado v. City of Orlando, 407 F.3d 1152, 1157

(11th Cir. 2005) (observing that the SL6 weapon “is classi-

fied as a ‘less lethal’ munition, [but that local] police

regulations recognize that it can be used as a deadly

weapon.”).

In Bell, the district court treated bean-bag rounds used

by officers “as a species of deadly force.” 321 F.3d at

639. But we found the record insufficient to determine

whether such rounds should be considered deadly as

a matter of law; we concluded only that they were “less

lethal than bullets or buckshot.” Id.; see also Omdahl v.

No. 10-1654 13

Lindholm, 170 F.3d 730, 733 (7th Cir. 1999) (declining to

resolve parties’ dispute over “whether the use of bean

bag projectiles constituted deadly force or merely a

higher level of force along a ladder of escalating force.”)

“For a particular application of force to be classified as

‘deadly,’ it must at least carry with it a substantial risk

of causing death or serious bodily harm.” Estate of Phillips

v. City of Milwaukee, 123 F.3d 586, 593 (7th Cir. 1997) (em-

phasis added) (internal quotations marks and citations

omitted). Direct analogy to the above cases cannot be

dispositive because impact weapon technology varies

from case to case, as do the manner and circumstances

when officers deployed impact rounds. Nevertheless,

multiple SL6 shots fired with force equivalent to a .44

magnum pistol at the same part of an arrestee’s body

clearly have the potential to cause serious injury, even

when aimed at the lower body. Indeed, this is what

happened to Phillips when the SL6 rounds tore flesh

from her ankle, requiring a lengthy, painful recovery. As

in Bell, this record does not permit us to determine

whether multiple SL6 rounds aimed at the lower body

carry a substantial risk of serious bodily harm per se. But

we conclude from the case law and from the extent of

Phillips’s injuries that the force used during her arrest

was at least on the high-end of the spectrum of less-

lethal force. In other words, when balancing the “nature

and quality of the intrusion” against the “governmental

interest at stake,” we conclude that the intrusion upon

14 No. 10-1654

Phillips’s Fourth Amendment rights was significant.5

Such force, whether or not it inherently carries a sub-

stantial risk of serious bodily harm, “is not to be

deployed lightly.” Deorle, 272 F.3d at 1272, 1279.

In Smith v. Ball State University Board of Trustees, we

considered an excessive force claim brought by a

plaintiff who drove onto a sidewalk and nearly hit

several pedestrians while suffering from diabetic shock.

295 F.3d 763 (7th Cir. 2002). After the driver failed to

respond when police arrived at the scene, the officers

pulled him from the car. Id. at 766. We found that

officers reasonably believed the driver to be drunk and

“were justified in using force to remove him, particularly

given the potential threat to public safety of an intoxicated

driver in command of a running vehicle.” Id. at 770.

Although he “was not actively resisting” during the

arrest, we held that “a reasonable officer who happened

on the scene could reasonably misconstrue [the driver’s]

unresponsiveness as resistance requiring the minimal use of

force.” Id. at 771 (emphasis added); see also McAllister,

615 F.3d at 883 (finding material issue of fact over con-

stitutionality of force used on semiconscious arrestee).

5

The amount of force inflicted by four SL6 shots further

distinguishes this case from those the dissent relies upon

involving use of pepper spray and pain compliance holds.

Indeed, in Padula v. Leimbach, we noted that “as a means of

imposing force, pepper spray is generally of limited intrusive-

ness.” 656 F.3d 595, 603 (7th Cir. 2011) (quoting Vinyard

v. Wilson, 311 F.3d 1340, 1348 (11th Cir. 2002)). The same

cannot be said of the force used upon Phillips.

No. 10-1654 15

The SL6 shots used on Phillips plainly exceeded the

“minimal” force permitted for the suspected drunk

driver in Smith.

2. Whether Officers Reasonably Believed Phillips’s

Car Was Stolen

Smith differs from this case in that the officers who

arrested Phillips testified that they believed she was

driving a stolen car. There was plainly some confusion

about the status of the vehicle on the night of the arrest.

But the officers contend on appeal that they never

received any information contradicting the initial

report that Phillips’s black Nissan was stolen. This is

incorrect. Officer Pierce checked the stolen vehicle

record and alerted his colleagues that a silver Honda

Civic had been reported stolen instead of the Nissan.6

Before officers found Phillips, the dispatcher confirmed

the initial mistake and attempted to clarify the con-

fusion: “[T]he listed owner on the Nissan Maxima is the

complainant for the vehicle theft on the Honda Civic,

silver in color with that plate assigned. So I am unsure

6

After dispatch reported the Nissan stolen, Officer Pierce

called in for “verification,” asking whether “the hit is on a

Honda Civic or Maxima,” and noting that “the plate number is

on a Civic.” Pierce also inquired, “the caller said the car was

black for sure? The hit is showing silver.” The dispatcher

acknowledged the discrepancy, confirming that the caller

who reported the drunk driving had “stated it was a black

Nissan Maxima.”

16 No. 10-1654

why that plate is reassigned to the Nissan Maxima.” In

other words, the officers were advised that the license

plate number was associated with two cars: a silver

Honda Civic that had been reported stolen and a black

Nissan Maxima with no report of being stolen but with

plates “reassigned” from the Honda. The defendants

admitted at trial that, before they located Phillips, the

dispatcher had clarified that “the Honda Civic was the

original stolen vehicle” and that there was no “informa-

tion . . . that the black Nissan Maxima was stolen.”

We do not doubt or reconsider the officers’ testimony

that they continued to believe they were dealing with

a stolen car. But the question remains whether it was

objectively reasonable for them to proceed on this as-

sumption in the face of the contradictory information

they received. At trial, Lieutenant Jack testified that the

police continued to treat Phillips’s black Nissan as

stolen because the Department of Transportation had a

general policy prohibiting reassignment of plates from

stolen cars to other vehicles. He also testified that the

discrepancy in the car’s reported color did not concern

him because owners often repaint their cars without

updating vehicle records with the Department of Trans-

portation. This may be true but it misses the essential

point: On the night of the arrest, the officers never en-

countered the Honda Civic confirmed as the stolen

vehicle. Though a car owner might repaint a vehicle

without updating public records, this would not change

the car’s make and model. And even if the Department

of Transportation would not typically reassign stolen

license plate numbers to another car, this does not alter

No. 10-1654 17

the fact that officers were advised a Honda had

originally been stolen rather than the Nissan with the

reported drunk driver. No department policy could

transform a Honda Civic into a Nissan Maxima. To con-

tinue believing Phillips was driving the car originally

reported stolen, officers had to disregard the caller’s

description of a different vehicle, as well as their own

direct observation of the Nissan Maxima during the 15-

minute standoff with the drunken Phillips.7

The conflicting information officers received could

cause legitimate confusion, but at a certain point con-

tinuing confusion becomes objectively unreasonable.

After the officers made the initial determination that

they were dealing with a car theft, they appear to have

had difficulty acknowledging subsequent information

challenging their assumption. This is not because the

officers were unaware of the discrepancy. The transcript

shows Lieutenant Jack engaged in communications over

the dispatch, with some transmissions directed to his

personal call number. Lieutenant Jack considered con-

7

Phillips also raises a puzzling argument that officers

should not have considered her car stolen because the

dispatch had made it clear that Phillips was the legal owner

of both the Honda and the Nissan. The defendants respond,

quite rightly, that they had no way of knowing who was

driving the car at the time of the arrest. But this dispute

is immaterial. Regardless of the driver’s identity, the question

is whether officers reasonably believed the black Nissan was

stolen after police dispatch informed them that a silver

Honda had been stolen instead.

18 No. 10-1654

tacting the original caller again to check whether he

may have misidentified the car as a black Nissan Max-

ima. “It is not objectively reasonable to ignore specific

facts as they develop (which contradict the need for this

amount of force), in favor of prior general information

about a suspect.” Cavanaugh v. Woods Cross City, 625

F.3d 661, 666 (10th Cir. 2010); cf. Fisher v. Harden, 398 F.3d

837, 843 (6th Cir. 2005) (finding it unreasonable for

officer to rely on reported information to determine

whether probable cause exists when direct observation

or other information undermines the earlier report).

We take care to judge the situation “from the perspec-

tive of a reasonable officer on the scene, rather than

with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396.

We respect that the defendants’ central priority on the

night of the arrest was apprehending the reported drunk

driver and we sometimes defer to officers’ reasonable

misunderstanding of a particular scenario. In spite of

the contrary information the officers received, it could

be considered reasonable to take additional precautions

given the unusual circumstances surrounding the car’s

license plates. That is, the jury could have concluded

that it was initially reasonable to approach Phillips’s

vehicle using the procedures associated with high-risk

stops and to command Phillips to exit her car.

Nevertheless, at the time of the arrest, there was

clearly sufficient information to call into question

whether Phillips’s car was stolen. No “magical on/off

switch” controls the level of force permitted to effectuate

an arrest. Scott v. Harris, 550 U.S. 372, 382 (2007); Cyrus,

No. 10-1654 19

624 F.3d at 863. The original police dispatch reporting a

stolen black Nissan Maxima did not entitle officers to

proceed on an unshakable assumption that they were

pursuing a car thief. They could not simply ignore sub-

sequent information that a different car had been stolen

when they considered the appropriate amount of force

to use. Cavanaugh, 625 F.3d at 666. Even if some under-

standable confusion and caution remained, we conclude

that a reasonable officer would have been alert to the

potential need to mitigate force in arresting the driver. 8

The officers’ certainty that they were dealing with a

car theft was objectively unreasonable in light of the

contrary information they received.

3. Whether Officers Used Excessive Force in Shooting

Phillips Four Times with the SL6 Weapon

Even if the officers acted reasonably in treating the

arrest as a high-risk stop because of uncertainty surround-

ing the license plates, the force they used to apprehend

Phillips exceeded the level that was reasonable under

the circumstances. At trial, the officers stated repeatedly

that they believed Phillips was drunk. Officer Hoffman

testified that he initially suspected Phillips was passing

8

By the same rationale, in a case like Smith, if a police

dispatch alerted officers that a reported drunk driver also

suffered from epileptic seizures, we would expect reasonable

officers to take that information into account when weighing

the force necessary to effectuate the arrest. See McAllister,

615 F.3d at 883.

20 No. 10-1654

in and out of consciousness, though he later dismissed

this idea after seeing her move intermittently within the

car. Regardless of whether they believed Phillips was

conscious throughout the entire incident, the officers

knew they were dealing with an arrestee of diminished

capacity.

It is also clear that Phillips was never “actively re-

sisting arrest,” a touchstone of the Graham analysis. 490

U.S. at 396. Phillips never exhibited any sort of aggressive

behavior toward the officers before or after they located

her car, nor did she make any attempt to escape.9 The

officers argue that Phillips demonstrated continuous

“defiance” by failing to follow their commands to exit

the vehicle. This characterization strains credulity given

the circumstances. But viewing the evidence in the light

most favorable to the defendants, we presume that the

officers reasonably believed that Phillips heard their

orders and chose not to obey. Even so, leaving oneself

exposed to repeated police fire does not represent

“active resistance.” To the extent that Phillips’s per-

ceived conduct could be considered “resistance” at all,

9

The officers contend on appeal that Phillips “led them on a

several mile chase through the City of Waukesha.” This is

plainly false. The uncontested evidence at trial established

that the officers determined Phillips’s location from a bus

driver’s call and then found the stationary vehicle on a

sidewalk next to an apartment complex. Although the

officers searched for the car for several minutes before

receiving the tip from the bus driver, there was never

any “chase.”

No. 10-1654 21

it would have been passive noncompliance of a different

nature than the struggling that we have found warrants

escalation of force. Indeed, in Smith, we noted this dis-

tinction, finding that what the officers perceived as

willful noncompliance was not the same as “actively

resisting” but instead a passive “resistance requiring

the minimal use of force.” 295 F.3d at 771 (emphasis added);

see also Cyrus, 624 F.3d at 863 (no evidence suggesting

that the plaintiff “violently resisted” officers even if

plaintiff refused to release arms for handcuffing); Estate

of Escobedo v. Bender, 600 F.3d 770, 780-81 (7th Cir. 2010)

(plaintiff threatening suicide was not actively resisting

arrest even though he said he was intoxicated, had a

gun, and had barricaded himself in his room and

refused to come out for three hours); Mattos v. Agarano,

661 F.3d 433, 450 (9th Cir. 2011) (en banc) (“[W]e draw a

distinction between a failure to facilitate an arrest and

active resistance to arrest.”); Griffith v. Coburn, 473 F.3d

650, 653, 659 (6th Cir. 2007) (use of chokehold on

plaintiff who was leaning back but resisting only pas-

sively by trying to put arms behind his back and

refusing to cooperate with officer’s commands was unrea-

sonable).

The officers have argued that Phillips continued to

present a potential threat while she remained in the car

because they believed the vehicle was running and

could be used as a weapon. We have recognized this

risk, Smith, 295 F.3d at 770, and agree that officers

were entitled to use force to remove Phillips. But we

have never suggested that any level of force is per-

missible to extinguish such a threat. See McAllister,

22 No. 10-1654

615 F.3d at 885-86. To the contrary, “[f]orce is reasonable

only when exercised in proportion to the threat posed.”

Cyrus, 624 F.3d at 863 (citing Oliver v. Fiorino, 586 F.3d

898, 907 (11th Cir. 2009)). We must view the severe force

that officers used on Phillips in light of the fact that

any threat she presented had already been substantially

contained. The officers had her vehicle surrounded

with seven squad cars, and behind the vehicle there was

a steep drop-off. There was nowhere for Phillips to

go. Officer Hoffman himself told the dispatch that

the driver was “secured, not in handcuffs, but stabilized

in the car.” The scene was “secured” at least fifteen min-

utes before officers shot Phillips. During that time,

Phillips had given no indication that she intended to

harm the officers or anyone else.

This is not to say that officers had entirely eliminated

all danger after they surrounded the car. But the “desire

to resolve quickly a potentially dangerous situation is

not the type of government interest that, standing

alone, justifies the use of force that may cause

serious injury.” Deorle, 272 F.3d at 1281. The threat

Phillips presented cannot be characterized as “immedi-

ate.” See Graham, 490 U.S. at 396. When the officers

decided to use the SL6, Phillips was sprawled across

the front seat with her legs outside of the car and both

feet on the ground. Even to move into a position to

drive the car, Phillips would have had to, at a minimum,

sit up, bring her feet in, close the car door, and press

the gas pedal. Phillips never gave the officers a reason

to believe that she was about to do any of these things,

even after the officers fired a warning shot at her car door.

No. 10-1654 23

Cf. Estate of Starks v. Enyart, 5 F.3d 230, 233 (7th Cir. 1993)

(finding officers improperly used deadly force and

were not entitled to qualified immunity even though

escaping arrestee recklessly drove stolen taxicab

toward them). Other than taking her legs from the

window and putting them outside the car’s door, there

was no escalation or change in circumstances that

called for immediate action on the officers’ part.

Under the totality of the circumstances, it is a close

question whether officers acted reasonably in hitting

Phillips with the first SL6 round. But the multiple shots

fired certainly exceeded the level of force permissible

to effectuate the arrest. Phillips gave no reaction to

the first warning shot which put a baseball-sized dent

in the car. Then, after the first physical blow, Phillips

continued to remain in the same position, only yelling

in pain after being injured. She did nothing to escalate

the situation by actively resisting or attempting to

flee. Although the officers waited little before firing

additional shots, it was not because the circumstances

called for rapid action. Since Phillips’s only response

had been to reach down to her leg and cry out in pain,

the officers had time to pause and reevaluate the

level of force needed to arrest her. See Mattos, 661 F.3d

at 445 (noting that use of less-lethal force was unwar-

ranted because there were no “exigent circumstances”

and officers were able to “proceed[] deliberately

and thoughtfully”); cf. Brockington v. Lamont Boykins,

637 F.3d 503, 507 (4th Cir. 2011) (although initial

use of deadly force was reasonable, there was no

indication that additional force was necessary after

24 No. 10-1654

the plaintiff had been shot, was on the ground, and

wounded).

This was simply not the kind of “tense, uncertain,

and rapidly evolving” situation that required “split-

second” judgment calls. Graham, 490 U.S. at 397. As

discussed above, the officers had already been put on

notice that Phillips’s car was not the same color, make,

or model as the one reported stolen. When the car was

located, according to the officers’ testimony and the

evidence in the record, Phillips appeared to be very

drunk. Phillips never actively resisted or even re-

sponded to the officers’ initial use of force. Under the

circumstances, it was objectively unreasonable to shoot

Phillips four times with the SL6 when she posed no

immediate threat and offered no active resistance.

There is a commonsense need to mitigate force

when apprehending a non-resisting suspect, particularly

when the suspect is known to have diminished capacity.

An arrestee may be physically unable to comply with

police commands. See Smith, 295 F.3d at 770; see also

Cyrus, 624 F.3d at 863 (noting that officer was “aware

of [arrestee’s] mental illness”); McAllister, 615 F.3d at

883 (finding knowledge of arrestee’s diabetic condition

relevant to excessive force analysis); Champion v. Outlook

Nashville, Inc., 380 F.3d 893, 904 (6th Cir. 2004), (“The

diminished capacity of an unarmed detainee must be

taken into account when assessing the amount of force

exerted.”).

Here, we must respectfully disagree with our dissenting

colleague who suggests that the force used was appro-

No. 10-1654 25

priate because Phillips failed to comply when officers

ordered her to exit the car. Like the dissent, we accept

the officers’ testimony that their ultimate “goal” in using

the SL6 was “to gain compliance and control,” rather than

to hurt or punish Phillips gratuitously. But this goes

principally to the question of intent. “The officers’ intent

in using force is irrelevant in a Fourth Amendment

case. Only its reasonableness matters—which means

whether it was excessive in the circumstances, because if

it was, it was unreasonable . . . .” Richman v. Sheahan,

512 F.3d 876, 882 (7th Cir. 2008) (citations omitted); see

also Graham, 490 U.S. at 397 (“An officer’s evil inten-

tions will not make a Fourth Amendment violation out

of an objectively reasonable use of force; nor will an offi-

cer’s good intentions make an objectively unreasonable

use of force constitutional.”).

The dissent notes that officers stopped firing after

Phillips obeyed and slid out of the car. But the fact that

Phillips eventually complied after she was shot has no

bearing on whether the force exercised on her was rea-

sonable. We concur with our dissenting colleague’s

statement that “the reasonableness of force [cannot

be] measured by whether it is successful at gaining com-

pliance.” Dissent Op. at 46. But we believe the

dissent’s analysis of the officers’ use of force effectively

sanctions this invalid approach. That the officers had

a reasonable goal and used (arguably) non-deadly force

to accomplish it does not make their actions reasonable.

It is true that the officers said they were trained to use

the SL6 in an “overload” fashion meant to overpower

a subject by repeatedly striking the same area of the

26 No. 10-1654

body. But as the dissent observes, the SL6 was re-

served for “resistive, assaultive, or otherwise dangerous

behavior.” Phillips never exhibited any of the active

resistance or assaultive behavior that would have war-

ranted use of the overload tactic. E v e n w h e n o f f i c e r s ’

goals are eminently reasonable, there are definite limits

to the force officers may use to prod arrestees into

obeying commands. A rule that pins reasonableness

on whether officers used the force necessary to secure

compliance would be a rule that requires officers to

beat non-resisting arrestees into submission.

Moreover, we believe the dissent misapprehends the

circumstances that warranted escalation of force in our

prior cases. We have held that increased force may be

reasonable when used in response to an arrestee’s

active struggling and in proportion to the threat pre-

sented. Thus, in Padula, we found that “[i]t was . . . reason-

able to use mace to attempt to control [the plaintiff] under

the circumstances, which involved a physical struggle

both before and after placing him in handcuffs.” 656 F.3d

at 603. The force used was carefully calibrated to the

arrestee’s active resistance: “as a means of imposing force,

pepper spray is generally of limited intrusiveness.” Id.

Similarly, “[t]he Officers’ use of batons was also reason-

able. . . . [The] baton strikes were ‘stern,’ but not ‘severe,’

which was appropriate in response to [the plaintiff] kicking

and flailing his arms.” Id. Our decision in Clarett v.

Roberts followed the same rationale. 657 F.3d 664 (7th

Cir. 2011). There, an officer testified that he used three

taser deployments because the arrestee was “kicking and

flailing at him and continued this assaultive behavior

No. 10-1654 27

when he tried to arrest her.” Id. at 675; see also Monday v.

Oullette, 118 F.3d 1099, 1105 (6th Cir. 1997) (“Here, [the

officer] used only a single burst of pepper spray to get

plaintiff on the stretcher, unlike the allegation in [a sepa-

rate case] that the plaintiff was unnecessarily sprayed a

second time after he was subdued.” (emphasis added)).

Permitting substantial escalation of force in response

to passive non-compliance would be incompatible with

our excessive force doctrine and would likely bring

more injured citizens before our courts. Under the

totality of the circumstances, we conclude that the force

used surpassed the level permissible under the Fourth

Amendment to effectuate Phillips’s arrest.

B. Qualified Immunity

Qualified immunity protects an officer from liability if

a reasonable officer could have believed that the action

taken was lawful, in light of clearly established law

and the information the officer possessed at the time.

Omdahl, 170 F.3d at 733. “In determining whether a right

is “clearly established,” we look first to controlling pre-

cedent on the issue from the Supreme Court and from

this circuit. Estate of Escobedo, 600 F.3d at 781. If such

precedent is lacking, we look to all relevant case law

to determine “whether there was such a clear trend in

the case law that we can say with fair assurance that

the recognition of the right by a controlling precedent

was merely a question of time.” Id. (internal quotation

marks and citation omitted). Even dicta, although we

do not rely on it here, in certain cases, can clearly

28 No. 10-1654

establish a right. See id. at 786 (citing Anderson v. Creighton,

483 U.S. 635, 640 (1987)).

In undertaking this analysis, we take care to “look at

the right violated in a particularized sense, rather than

at a high level of generality.” Roe v. Elyea, 631 F.3d 843,

858 (7th Cir. 2011) (internal quotation marks and citation

omitted). But a case directly on point is not required for

a right to be clearly established and “officials can still be

on notice that their conduct violates established law

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

U.S. 730, 741 (2002). Therefore, we ask whether it was

clearly established on November 11, 2005 that multiple

trauma-inducing shots would constitute excessive force

when used to secure a non-resisting, intoxicated

arrestee. We conclude that the right to be free from this

amount of force was clearly established on the date

of Phillips’s arrest.

The officers contend that they are entitled to qualified

immunity because, on the date of the arrest, no case

from the Supreme Court or from this circuit had held

use of the SL6 unconstitutional. They argue that if the

law had clearly established that use of an SL6 was unlaw-

ful, police departments would no longer retain the

weapon in their arsenal.

The defendants misconstrue the qualified immunity

analysis. “[T]here is no need that the very action in ques-

tion [have] previously been held unlawful.” Safford

Unified Sch. Dist. v. Redding, 557 U.S. ___, 129 S. Ct.

2633, 2643 (2009) (internal quotation marks and citation

omitted). Every time the police employ a new weapon,

No. 10-1654 29

officers do not get a free pass to use it in any manner until

a case from the Supreme Court or from this circuit in-

volving that particular weapon is decided. See Sallenger

v. Oakes, 473 F.3d 731, 741-42 (7th Cir. 2007) (no

qualified immunity for officers’ use of hobble given

totality of circumstances, even where other circuits had

held that “use of a hobble was not clearly established

as constitutionally suspect”). Even where there are

“notable factual distinctions,” prior cases may give an

officer reasonable warning that his conduct is unlawful.

Estate of Escobedo, 600 F.3d at 781; see also Griffith v.

Coburn, 473 F.3d 650, 659 (6th Cir. 2007) (“[T]he [c]ourt

can consider more than merely the factual context of

a prior case: ‘the general reasoning that a court employs’

also may suffice for purposes of putting the defendant

on notice that his conduct is clearly unconstitutional.”

(citation omitted)).

The officers also argue that qualified immunity is

warranted because Smith affirmatively authorized use

of force to remove an unresponsive driver from a car.

295 F.3d at 771. But the reliance on Smith is misplaced.

As we explained in McAllister, Smith does not stand for

the proposition that an officer may use any amount of

force on an unresponsive driver. 615 F.3d at 885-86 (dis-

tinguishing Smith and denying qualified immunity to

police officers because “the degree of force the officers

intended to apply in Smith was significantly less than

the force allegedly used by [the officer in this case]”). To

the contrary, Smith permitted only “minimal” force

to remove a non-responding intoxicated driver from

his car. 295 F.3d at 771.

30 No. 10-1654

As stated above, “[f]orce is reasonable only when exer-

cised in proportion to the threat posed.” Cyrus, 624 F.3d at

863 (citing Oliver v. Fiorino, 586 F.3d 898, 907 (11th Cir.

2009) (discussing clearly established law as of 2004)).

“Force also becomes increasingly severe the more often

it is used; striking a resisting suspect once is not the

same as striking him ten times.” Cyrus, 624 F.3d at 863.

By the time of the arrest, circuit precedent had given the

officers notice that the force used on Phillips was exces-

sive. Smith indicated that only minimal force was war-

ranted to remove a driver perceived to be intoxicated and

passively resisting. 295 F.3d at 771. Omdahl referenced the

substantial quantum of force inflicted by a bean-bag

shotgun, treating it as either “deadly force” or “a higher

level of force along a ladder of escalating force.” 170 F.3d

at 733; see also Deorle, 272 F.3d at 1279-80. Prior to Phillips’s

arrest, the Eleventh Circuit held in Mercado that officers

had used excessive force in deploying an SL6 weapon

against an arrestee wielding a knife and threatening to

commit suicide. 407 F.3d at 1154-55. One of the two

SL6 rounds fired hit the arrestee in the head injuring

him. Id. The Eleventh Circuit rejected qualified immunity

for the officers even though there was no prior case

law that was “materially similar.” Id. at 1159. Though

the circumstances surrounding the use of force differ

from the current case, Mercado recognized that the SL6

could be deployed in a clearly unlawful manner even

though it was categorized as “less lethal.” Id. at 1157.1 0

10

The officers rely on Mercado to argue that they are entitled

to qualified immunity because there was no “materially

(continued...)

No. 10-1654 31

Even assuming a lack of clarity about the propriety of

shooting Phillips with the SL6 once, the officers should

have known that it was unlawful to escalate force by

shooting Phillips three more times when she was unre-

sponsive, presented no immediate threat, and made no

attempt to flee or even avoid police fire. That is, it was

clearly established in November 2005 that officers

could not use such a significant level of force on a non-

resisting or passively resisting individual. Rambo v.

Daley, 68 F.3d 203, 207 (7th Cir. 1995) (denying

qualified immunity where police forced a handcuffed,

drunk driving suspect who was verbally resisting arrest

into a police car by breaking the suspect’s ribs); St. John

v. Hickey, 411 F.3d 762, 772-75 (6th Cir. 2005) (denying

qualified immunity to officers who injured a disabled

plaintiff while placing him in police cruiser because,

although the plaintiff was “cursing,” “yelling,” and

“passively” resisting, he was not violent or attempting

to flee); Hill v. Miller, 878 F. Supp. 114, 116 (N.D. Ill. 1995)

(“[I]t is well established that the use of any significant

force . . . not reasonably necessary to effect an arrest—as

10

(...continued)

similar” case that “truly compels the conclusion that [the

plaintiff] had a right established under federal law.” Mercado,

407 F.3d at 1159. The argument is unavailing because

Mercado itself found officers liable in spite of the absence of

case law directly on point. And the Supreme Court had

already rejected any “materially similar” requirement as an

overly “rigid gloss” on qualified immunity. Hope, 536 U.S.

at 739.

32 No. 10-1654

where the suspect neither resists nor flees or where

the force is used after a suspect’s resistance has been

overcome or his flight thwarted—would be constitu-

tionally unreasonable.” (internal quotation marks and

citation omitted)). We therefore conclude that the

officers are not entitled to qualified immunity, and that

Phillips is entitled to judgment as a matter of law on

her excessive force claim.1 1

III. CONCLUSION

We R EVERSE the judgment and R EMAND the case to

the district court to enter judgment as a matter of law

for Phillips and for a calculation of Phillips’s damages.

11

Because we conclude that Phillips was entitled to judgment

as a matter of law, we do not consider whether she is entitled

to a new trial because the district court admitted her blood

alcohol content into evidence even though the officers were

unaware of it when they shot her with the SL6.

No. 10-1654 33

T INDER, Circuit Judge, dissenting. I have no major

quarrel with the majority’s description of the facts and

the applicable legal standards. I respectfully dissent,

though, because I cannot agree that based on those facts,

a reasonable jury had to find in favor of Phillips.

Excessive force claims generally require a fact-based, case-

by-case inquiry, and as such, we have often held that

the question of whether force is excessive must be

decided by a jury. See, e.g., Cyrus v. Town of Mukwonago,

624 F.3d 856, 862 (7th Cir. 2010); McAllister v. Price, 615

F.3d 877, 884 (7th Cir. 2010); Abdullahi v. City of Madison,

423 F.3d 763, 773 (7th Cir. 2005). “[W]e have recognized

that summary judgment is often inappropriate in

excessive-force cases because the evidence surrounding

the officer’s use of force is often susceptible of different

interpretations.” Cyrus, 624 F.3d at 862. I am aware of no

case before this one, however, where we have reversed

a jury verdict in favor of a defendant officer by con-

cluding that the officer’s use of force under the totality

of circumstances was excessive as a matter of law. The

facts in this case should not lead us to such an extraordi-

nary result.

Although most of the relevant facts in this case are

undisputed, it is within the jury’s province to determine

what reasonable inferences to draw from those facts.

See Abdullahi, 423 F.3d at 770 (stating that it is for

the jury, not us, to weigh all the evidence and

choose between competing inferences). I agree with the

majority that the “[o]bjective reasonableness of force is

a legal determination rather than a pure question of fact

for the jury to decide,” Maj. Op., p. 9, but the facts of this

34 No. 10-1654

case and the reasonable inferences arising from them

(as discussed below) properly permitted the jurors to

assess the reasonableness of the defendants’ actions. 1 It

is my position in dissent that, when viewed in the

light most favorable to the defendants, reasonable in-

ferences drawn from the record support the jury’s deter-

mination. Admittedly, this is a difficult and close case.

Nevertheless, given the situation faced by the officers,

I believe that whether four shots was too many under

the circumstances was a question properly presented to

the jurors.

“The dispositive question is whether, in light of the

facts and circumstances that confronted the officer[s] (and

not 20/20 hindsight), the officer[s] behaved in an objec-

tively reasonable manner.” Padula v. Leimbach, 656 F.3d

595, 602 (7th Cir. 2011) (quoting McAllister, 615 F.3d at

881). As the majority observes, relevant factors to

consider include the severity of the crime, the immediate

threat the suspect poses to the safety of the officers or

others, and whether the suspect is actively resisting

1

When the defendants moved for summary judgment on

Phillips’s excessive force claim, Phillips didn’t file a cross-

motion for summary judgment, but instead, responded that

there were genuine issues of fact for the jury. (Doc. 51, p. 33)

(“[T]here are two distinct versions of the facts here, including

several material issues for the jury which will bear directly

on the ‘reasonableness inquiry.’ ”). In fact, Phillips waited

until two separate juries failed to find in her favor before

claiming that she should win as a matter of law. (The first

jury to try the case was unable to reach a verdict.)

No. 10-1654 35

arrest or attempting to evade arrest by flight. See Graham

v. Connor, 490 U.S. 386, 396-97 (1989). “The calculus of

reasonableness must embody allowance 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.” Id.

The jury was presented with sufficient facts to support

a finding that the officers behaved in an objectively rea-

sonable manner. The crimes under investigation were

not trivial. Lieutenant Russell Jack and Officer James

Hoffman reasonably believed that the woman in control of

the vehicle (who they discovered after the arrest was

Tamara Phillips) might act dangerously and unpredictably

based on the dispatch reports and their observations of

her bizarre behavior inside the vehicle. Indeed, Phillips’s

erratic driving (one caller described the vehicle as “all over

the road”) endangered other drivers and ended with

the vehicle stopped on a sidewalk and facing the street

in a residential area. When officers repeatedly ordered

Phillips to show her hands and exit the vehicle, instead

of complying, she lit a cigarette, placed a water bottle

outside the driver’s door, and at one point placed both

feet out of the driver-side window, leaning back toward

the center console. The events of that evening were full

of uncertainty. The lighting of the cigarette is just one

example of the ambiguity confronting the officers. Was

this the action of a highly intoxicated individual or “one

last smoke” by a person intending to undertake a

violent confrontation with the police? We know now

that it was, fortunately, the former and not the latter, but

36 No. 10-1654

how could the police on the scene know that at the time

of the incident?

There was also confusion over whether the vehicle

was stolen. Even though the officers had information

suggesting the vehicle may not have been stolen, the

facts were sufficient for the jury to find that the officers

acted reasonably in approaching the situation as a “high

risk traffic stop” involving a potentially stolen vehicle.

I agree with the majority that there was “sufficient in-

formation to call into question whether Phillips’s

vehicle was stolen,” Maj. Op., p. 18, but the officers on

the scene did not have the luxury of investigating why

the license plate number of a car reported stolen was

transferred to a different vehicle. Lieutenant Jack testified

that the Department of Transportation had a general

policy prohibiting reassignment of plates from stolen

cars to other vehicles. Under these circumstances, the

jurors could find it reasonable for the officers, out of

caution, to proceed as though the vehicle was stolen.

The officers had reason to believe that Phillips posed

a threat to the safety of the officers and others. The car

was in a residential area where people could be

traveling and was pointed toward the street in the di-

rection of the officers. The officers testified that they

believed the car was still running because its headlights

were on. Based on these facts, a reasonable jury could

find that the officers faced a threat that Phillips would

attempt to drive the car toward them, especially con-

sidering her subsequently confirmed intoxicated state

and bizarre behavior.

No. 10-1654 37

The majority concludes that there was no immediate

threat because “[t]he officers had [Phillips’s] vehicle

surrounded with seven squad cars, and behind the vehicle

there was a steep drop-off.” Maj. Op., p. 22. I have a

slight disagreement with this understanding of the

scene; I don’t think the most favorable construction

of the record shows that all seven squad cars were sur-

rounding Phillips’s vehicle; some were blocking traffic on

adjacent streets. (Tr. p. 88). But that is not a major

point, and I agree it was not likely that Phillips could

have escaped because it would have been extremely

difficult for her to plow through the phalanx of

policemen and police vehicles, to say nothing about

her chances of eluding them in a chase. But that doesn’t

mean she wasn’t in a position to harm the officers by

driving her car forward. Although Phillips’s feet were

outside the car, within seconds she could have hit the

gas. Again, the officers could have reasonably believed

that Phillips was substantially under the influence of

alcohol or drugs, and as a result, mentally unstable

and unpredictable. The officers also did not know

whether Phillips was armed, making her strange and

unpredictable behavior even more alarming. These cir-

cumstances, combined with the confusion over the

stolen vehicle report with respect to the license plates

on the vehicle, required the officers to proceed with

extreme caution. As such, they could reasonably be-

lieve that Phillips posed a threat to their safety and

to anyone else who might be in the vicinity.

Because this was a high-risk traffic stop, police proce-

dure was to order the “suspect to shut the car off, put

38 No. 10-1654

the keys outside the car, and then step out of the car,

and then walk back to [a] safe location” for the officers

to take the suspect into custody. (Tr. p. 193). Despite

the officers’ clear, loud, and repeated orders to step

out of the vehicle, Phillips failed to comply. Her unre-

sponsiveness to Lieutenant Jack’s commands to step out

of the car “did not neutralize the safety threat, but

rather exacerbated it by adding an element of unpre-

dictability.” See Smith v. Ball State Univ., 295 F.3d 763,

769 (7th Cir. 2002) (“Smith posed a threat to himself,

the officers and the general public, even after

Officer Foster turned off Smith’s vehicle and attempted

unsuccessfully to communicate with him. Indeed, . . . his

unresponsiveness did not neutralize the safety threat,

but rather exacerbated it by adding an element of unpre-

dictability.”). Phillips continued moving around in the

vehicle and had even reached toward the glove box,

which Officer Hoffman testified would be consistent

with “someone . . . obtaining a weapon.” (Tr. p. 196).

Although Lieutenant Jack radioed dispatch and said,

“We have the person secured here, not in handcuffs,

but stabilized in the car,” he testified that meant the

suspect was in the car, the car wasn’t moving, and the

driver was not currently fleeing. (Tr. p. 286). Lieutenant

Jack never indicated that the driver no longer posed

a threat to their safety.

I agree that Phillips wasn’t actively resisting arrest in

the sense of physical resistance; she wasn’t aggressive

or confrontational at any point. She nevertheless failed

to obey the officers’ repeated, simple commands to step

out of the vehicle. Based on the evidence presented to

No. 10-1654 39

the jurors, they could have reasonably found that

Phillips’s noncompliance was purposeful, conscious

resistance to submission of their authority. The officers had

reason to believe Phillips was conscious (based on her

lighting of the cigarette and other movements) and

there was nothing indicating that she was suffering from

a medically induced condition aside from intoxication.

Compare Padula, 656 F.3d at 602 (force used against

driver suffering from a hypoglycemic episode was not

excessive where there was no facts alerting the officers

of his medical state), with McAllister, 615 F.3d at 884

(“[T]he evidence shows that Price ignored obvious signs

of McAllister’s medical condition, pulled him out of

the car, and took him to the ground with such force

that McAllister’s hip was broken and his lung bruised

from the force of Price’s knee in his back . . . .”). The

officers wanted Phillips to step out of the car because

they were uncertain what Phillips might do if they ap-

proached, whether she had any weapons within reach,

or whether there was anyone else in the vehicle. The

goal in a high-risk stop is to distance the suspect from

the vehicle as much as possible so that officers can

control the environment in which the person is taken

into custody. (Tr. p. 215). Under these facts, and looking

at the situation as it was unfolding at the time, a jury

could have determined that it was reasonable for the

officers to use the SL6 baton launcher to gain com-

pliance with their orders.

Of course, this case certainly gets more difficult

when determining the reasonableness of multiple shots.

The officers couldn’t simply keep shooting the baton

40 No. 10-1654

launcher until they gained compliance; at some point

the amount of force becomes excessive. As the majority

properly suggests, repeated applications of force are

“reasonable only when exercised in proportion to the

threat posed,” and “’striking a resisting suspect once is

not the same as striking him ten times.’” Maj. Op., p. 30

(quoting Cyrus, 624 F.3d at 863). “It’s the totality

of the circumstances, not the first forcible act, that deter-

mines objective reasonableness.” Cyrus, 624 F.3d at

863. Under the totality of circumstances, however,

whether four shots was too many was a question

properly presented to the jury. The standard for judg-

ment as matter of law is stringent. See Schandelmeier-

Bartels v. Chi. Park Dist., 634 F.3d 372, 376 (7th Cir.

2011). We review “the record as a whole to determine

whether the evidence presented, combined with all rea-

sonable inferences permissibly drawn therefrom, is suf-

ficient to support the verdict when viewed in the

light most favorable to the party against whom the motion

is directed.” Clarett v. Roberts, 657 F.3d 664, 674 (7th Cir.

2011) (quotations omitted). We must construe the facts

strictly in favor of the party who prevailed at trial,

Schandelmeier-Bartels, 634 F.3d at 376, and “will overturn

the jury’s verdict only if no reasonable juror could have

found in the defendants’ favor,” Clarett, 657 F.3d at 674.

After hearing testimony from Phillips, Officer Hoffman,

and Lieutenant Jack and weighing the evidence, a

properly instructed jury found that Phillips failed to

prove that the defendants’ use of force was excessive

from the perspective of a reasonable officer facing the

same circumstances that the defendants faced on the

No. 10-1654 41

night of November 11. The jury was instructed to

consider “the need for the use of force; the relationship

between the need for the use of force and the amount

of force used; the extent of the plaintiff’s injury; any

efforts made by the defendant to temper or limit the

amount of force; the severity of the crime at issue;

the threat reasonably perceived by the officers; whether

the plaintiff was actively resisting arrest or was

attempting to evade arrest by fleeing.” (Doc. 145, pp. 10-

11). Respectfully, I disagree with my majority colleagues

and believe that if all the evidence and all reasonable

inferences are construed in favor of the defendants, as

we must, a reasonable jury could find that the offi-

cers’ repeated use of force was not excessive.

This is not a case like Cyrus where the officers’ use of

repeated force resulted in the death of an individual

who was passively resisting arrest and posed no con-

tinuing threat to the officers’ safety. See Cyrus, 624 F.3d

at 858 (question of fact existed where unarmed arrestee

died after repeatedly being tasered while laying face

down on the pavement); see also Griffith v. Coburn, 473

F.3d 650, 643, 658 (6th Cir. 2007) (question of fact

existed where officers’ use of neck restraint resulted in

death of unarmed arrestee who was only passively re-

sisting by trying to put his arm behind his back and

refusing to help or cooperate in any way with officers’

commands).

In this case, the officers used intermediate force

that resulted in no severe permanent injuries; Phillips

was left with scarring from the incident but she doesn’t

42 No. 10-1654

walk with a limp or have any existing pain. (Tr. p. 66). The

SL6 is a less-lethal force to be targeted at an area below

the groin and is designed to impede suspects, not to

cause great bodily harm. (Tr. pp. 97, 300). Officer Hoffman

testified that he was trained to use the weapon for “resis-

tive, assaultive, or otherwise dangerous behavior,” (Tr.

p. 128), and they decided to use this weapon particularly

so they could maintain a safe distance from the vehicle

(Tr. pp. 221-23, 227, 300). The SL6 has the equivalent of

a .44 magnum pistol black powder primer (Tr. p. 126),

but travels at a lower velocity than a bullet fired from

a magnum cartridge, and thus, has the level of force

of a hand baton (Tr. p. 100) or professionally thrown

baseball, see also Mercado v. City of Orlando, 407 F.3d

1152 (11th Cir. 2005) (“The Sage Launcher is a ‘less le-

thal’ munition that fires a polyurethane baton that is

1.5 inches wide, travels approximately 240 feet per

second, and delivers a force of 154 foot/pounds of en-

ergy-approximately the energy of a professionally-thrown

baseball.”). I am not suggesting that the use of force in

this case was insignificant, but it certainly resulted in

lesser force than that used in Cyrus and Griffith.

I do not disagree with the majority that the use of an

SL6 could be treated “as a species of deadly force,” Maj.

Op., p. 12 (citing Bell v. Irwin, 321 F.3d 637, 639 (7th Cir.

2003), but that depends on how the weapon is used, see

Mercado, 407 F.3d at 1157 (aiming at a person’s head

constitutes deadly force), and in this case was a question

of fact properly reserved for the jury. See Omdahl v.

Lindholm, 170 F.3d 730, 733 (7th Cir. 1999) (finding that

whether bean-bag rounds constitute deadly force was a

No. 10-1654 43

factual question for the jury). The officers were trained to

use the SL6 in a less-lethal manner so as not to cause

serious bodily harm and that’s how it was used to

gain Phillips’s compliance. See, e.g., Bell, 321 F.3d at 639

(“Bean-bag rounds are designed to stun and inflict blunt

trauma, knocking a person down but not penetrating the

skin or damaging internal organs more severely than a

kick or punch would.”). Phillips undisputedly suffered

a painful injury and one shot did penetrate her skin

requiring stitches, but after three weeks she was able

to walk without a cane and had no permanent physical

effects (aside from scarring). I disagree though with the

majority’s implication that the SL6 necessarily employs

a substantially greater degree of force than other

weapons categorized as “less lethal,” such as tasers.

Certainly depending on the manner used, a taser or other

restraint techniques could cause more injury than Phillips

suffered. See, e.g., Cyrus, 624 F.3d at 858 (use of taser); see

also Abdullahi, 423 F.3d at 768-68 (use of kneeling restraint).

I am not suggesting that force is appropriately used in

all situations in which suspects do not comply with

police orders or that a passive resister can be ruthlessly

beaten into submission. But we have previously found

some use of force reasonable against suspects who are

resisting arrest by failing to comply with police orders.

See, e.g., Padula, 656 F.3d at 603-04 (given the officers’

reasonable belief that driver was intoxicated, they were

entitled to forcibly remove suspect from car when he

failed to comply with commands to get out); see also

Monday v. Oullette, 118 F.3d 1099, 1104-05 (6th Cir.

1997) (use of pepper spray reasonable where officer

44 No. 10-1654

warned that he would discharge it if individual did

not cooperate); Forrester v. City of San Diego, 25 F.3d

804, 807-09 (9th Cir. 1994) (finding no Fourth Amend-

ment violation when officers used injury-causing pain

compliance techniques on passively resisting demon-

strators). Officers may consider a suspect’s refusal to

comply with instructions during a traffic stop in

assessing whether physical force is needed to effectuate

the suspect’s compliance. See Mecham v. Frazier, 500 F.3d

1200, 1205 (10th Cir. 2007) (officer’s use of pepper spray

during traffic stop to force motorist from her vehicle

was objectively reasonable under the circumstances where

she disobeyed officer’s orders to exit the car); see also

Mattos v. Agarano, 661 F.3d 433, 450 (9th Cir. 2011) (en banc)

(officers can consider passive refusal to comply with

officer’s requests in using force). The amount of force

reasonable is dependent on the totality of circumstances.

Before using force, the officers in this case tried repeat-

edly for ten minutes to gain Phillips’s compliance. Then,

at a distance of 40 or 50 feet, Officer Hoffman

fired a warning shot, leaving a baseball-sized dent in

the driver-side door. The officers continued issuing

commands and after five minutes with no response,

Officer Hoffman fired the SL6 at Phillips’s leg. She

yelled out in pain and reached down for her legs, but

still didn’t comply with the officers’ commands. After

waiting fifteen seconds, Officer Hoffman fired three

more times, again hitting Phillips in the legs. After

each shot, Officer Hoffman waited a few seconds for

Phillips to comply; she had no further reaction until the

fourth shot. After the fourth shot, Phillips finally complied.

No. 10-1654 45

While there may not have been an “immediate” or

“urgent” need to get Phillips away from the vehicle,

the practicalities of the situation required prompt action.

This was a Friday night at 7:00 p.m. and the Waukesha

police had deployed seven squad cars to the scene.

Officers shouldn’t be required to take an endless “wait

and see” approach under these circumstances, par-

ticularly where officers are presented with a potentially

dangerous situation and may be called away to respond

to other emergencies. “It is easy in retrospect to say

that officers should have waited, or should have used

some other maneuver—these propositions cannot

be falsified—but Graham makes it clear that the

fourth amendment does not require second-guessing if

a reasonable officer making decisions under uncertainty

and the press of time would have perceived a need to

act.” Bell, 321 F.3d at 640.

The officers used non-lethal force to obtain Phillips’s

compliance with their commands after assessing the

situation and determining that it was the best option.

Similarly in Clarett, 657 F.3d at 674-75, we upheld a jury

verdict in favor of an officer who used a Taser on the

plaintiff three times after she blocked the doorway to

her son’s bedroom where other officers had already

entered. The officer heard a commotion in the bedroom

and believed that the officers needed help. Id. at 675. He

told the plaintiff to move from the doorway and

she refused, so he used the Taser to temporarily immobi-

lize and remove her from the doorway. Id. The officer

“said he considered using other alternatives, such as

physically moving [the plaintiff] out of the way, but

46 No. 10-1654

because the apartment was small and crowded, a

physical confrontation might escalate quickly, risking

serious injury. Under the circumstances, [the officer]

concluded that using the Taser was his best option.” Id.

The second and third Taser deployments were in

response to plaintiffs’ assaultive behavior. Id.

After Phillips complied with their commands, no

further force was necessary and no further force was

used. I also do not suggest that the reasonableness of

force is measured by whether it is successful at gaining

compliance. As noted above, the officers couldn’t

simply keep shooting the baton launcher until they

gained compliance; at some point the amount of force

becomes excessive. But the officers were trained to use

the SL6 in an overload fashion, meaning to repeatedly

strike the same area. (Tr. p. 100). That’s how Officer

Hoffman and Lieutenant Jack used the weapon

against Phillips so they could safely take her into cus-

tody. It was not unreasonable for the officers to use the

SL6 in this fashion, and “[i]n light of our hesitation

to second-guess the snap judgments made by law en-

forcement personnel,” see Padula, 656 F.3d at 604,

I would affirm the district court’s denial of the

plaintiff’s motion for judgment as a matter of law,

thereby allowing the jury’s verdict to stand.

I concede that the majority opinion ably demonstrates

that this arrest could have been better handled. And it is

extremely unfortunate that Phillips was injured during

these events. But, as noted, these facts present a close

case and because of that, even if there were some basis

No. 10-1654 47

to undo the jury’s verdict, for a second reason, I think

the judgment of the district court should be affirmed:

the officers should be entitled to qualified immunity.

“Since the purpose of qualified immunity is to pro-

tect public officials from guessing about constitutional

developments at their peril, the plaintiffs have the

burden of showing that the constitutional right was

clearly established.” Gonzalez v. City of Elgin, 578 F.3d

526, 540 (7th Cir. 2009). To be clearly established, the

“contours of the right must be sufficiently clear that a

reasonable official would understand that what he is

doing violates the right. This is not to say that an

official action is protected by qualified immunity unless

the very action in question has previously been held

unlawful, but it is to say that in the light of pre-existing

law the unlawfulness must be apparent.” McAllister,

615 F.3d at 884-85 (quotations omitted).

The SL6 was a relatively new weapon for use in

the field by the Waukesha police department; Officer

Hoffman had never used it in the field prior to this

incident and was not aware that it could penetrate the

flesh. (Tr. pp. 128-29). The only case identified by

the parties involving the use of an SL6 was Mercado, 407

F.3d 1152, decided several months before Phillips’s arrest.

The officer in that case fired the SL6 at the plaintiff’s

head from six feet away, but claimed he was aiming for

the plaintiff’s shoulder Id. at 1155. Because the circum-

stances didn’t warrant use of lethal force, the court

held that there was a question of fact for trial whether

the officer using the SL6 aimed for the plaintiff’s head.

Id. at 1157-58, 1160. In this case, the officers used the SL6

48 No. 10-1654

as a non-lethal weapon to gain the suspect’s compliance

from a safe distance. The weapon was carefully aimed

to strike only Phillips’s legs. There was no clearly estab-

lished law alerting the officers that their actions in

this instance were unlawful. Nor does the record show

that the defendants were aware of similar injuries

resulting from uses of the SL6 as it was designed to

be utilized.

The majority is correct that by using a new type

of weapon officers “do not get a free pass to use it in

any manner until a case from the Supreme Court or

from this circuit involving that particular weapon is

decided.” Maj. Op., pp. 28-29. Certainly, qualified immu-

nity doesn’t give officers a green light to use new weapons

in any unreasonable manner, but it does absolve them

of personal liability where they acted cautiously (maybe

too cautiously) in a close case requiring judgment

calls. See Mattos, 661 F.3d at 450 (applying qualified

immunity where there was no Supreme Court decision

or decision of the court of appeals addressing the use

of a taser in dart mode). “[T]he point of qualified

immunity and its ‘clearly established’ requirement is

that government officials are not, as a rule, liable for

damages in close cases.” Kikumura v. Turner, 28 F.3d

592, 597 (7th Cir. 1994). “[Q]ualified immunity provides

‘ample room for mistaken judgments’ and protects gov-

ernment officers except for the ‘plainly incompetent

and those who knowingly violate the law.’ ” Saffell v.

Crews, 183 F.3d 655, 658 (7th Cir. 1999) (quoting Hunter

v. Bryant, 502 U.S. 224, 229 (1991)).

No. 10-1654 49

The officers in our case were dealing with a suspected

stolen vehicle situation (it was at least reasonable for

them to proceed under that assumption) and a driver

who had endangered the lives of others before driving

off the road in a residential area at night. The vehicle,

which the officers had reason to believe was running,

was facing them and the driver was, to say the least,

unpredictable. Because of the high-risk nature of the

stop, the officers determined that it was not safe and

against normal procedure to approach the vehicle to

physically remove the suspect, particularly given

the number of uncertainties with the situation. So

they instead decided to use non-lethal force to gain com-

pliance. Significant resources were being utilized to

control the situation and it was reasonable for the

officers to decide that waiting it out was not a viable

option.

Police officers must have the ability to make on-the-

scene judgment calls that protect their safety and the

safety of the public. That’s what the officers attempted

to do in this situation and there was no existing legal

precedent warning them that their actions were unlaw-

ful. This is different from the cases cited by the

majority where police used excessive force after

the suspect was in their control. Maj. Op. p. 31 (citing

Rambo v. Daley, 68 F.3d 203, 207 (7th Cir. 1995) (suspect

was handcuffed) and St. John v. Hickey, 411 F.3d 762, 766

(6th Cir. 2005) (forcing plaintiff who couldn’t bend his

legs because of muscular dystrophy into back of police

car)). Recently, in Brooks v. City of Aurora, 653 F.3d 478,

487 (7th Cir. 2011), we held that officers were entitled

50 No. 10-1654

to qualified immunity when they used pepper spray

against the plaintiff a second time after he stopped re-

sisting arrest. In that case, we noted that the pepper

spray was not applied until Brooks had ceased back

peddling from the officers and was passively facing

them. Id. We held that it would not have been obvious

to a reasonable police officer that the application of

pepper spray was unlawful. Id. The suspect had ceased

active, physical resistance but had not submitted to

authority, had not been taken into custody, and could

arguably pose a threat of flight or further resistance.

Id. Although Phillips had not actively resisted arrest

in a physical way, the officers here were similarly pre-

sented with a threatening situation because Phillips

had not submitted to their authority and had not yet

been taken into custody. Accordingly, given the totality

of the circumstances as explained above, I believe the

officers should at least be entitled to qualified immunity.

For the foregoing reasons, I respectfully dissent and

would affirm the judgment in favor of the officers.

4-27-12