Cindy Abbott v. Sangamon County

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-1121

C INDY C. A BBOTT and

T RAVIS A BBOTT,

Plaintiffs-Appellants,

v.

S ANGAMON C OUNTY, ILLINOIS,

N EIL W ILLIAMSON, Sheriff,

Sangamon County, Illinois, and

T ROY M. SWEENEY, Deputy Sheriff,

Sangamon County, Illinois,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of Illinois.

No. 3:09-cv-03261-SEM-BGC—Sue E. Myerscough, Judge.

A RGUED S EPTEMBER 25, 2012—D ECIDED JANUARY 29, 2013

Before K ANNE, T INDER, and H AMILTON, Circuit Judges.

T INDER, Circuit Judge. Cindy Abbott and her adult son

Travis Abbott (collectively, the Abbotts) brought this

action under 42 U.S.C. § 1983 against Sangamon County,

2 No. 12-1121

Sheriff Neil Williamson, and Deputy Troy Sweeney, each

asserting Fourth Amendment claims of false arrest, false

imprisonment, and excessive force. The district court

granted summary judgment for Deputy Sweeney on all

claims, and the County and Sheriff Williamson were

subsequently dismissed. We affirm the district court’s

judgment with respect to all of Travis’s claims

because Deputy Sweeney had probable cause to arrest

Travis and is entitled to qualified immunity on Travis’s

excessive-force claim. We also affirm the district court’s

judgment with respect to Cindy’s false-arrest and false-

imprisonment claims on the basis of qualified immu-

nity. But we vacate the judgment with respect to Cindy’s

excessive-force claim and remand for further proceedings.

I

A

Given the procedural posture of this case, we view the

facts in a light favorable to the Abbotts, the nonmovants.

E.g., Vodak v. City of Chicago, 639 F.3d 738, 740 (7th Cir.

2011). But we also point out several of the material dif-

ferences between the Abbotts’ version of events and

Deputy Sweeney’s narrative.

On the morning of June 25, 2007, Sangamon County

animal control officers responded to a complaint that

the Abbotts’ dog, a Chow mix named Biscuit, had been

running loose on Lyons Road in Spaulding, Illinois. After

visiting the complainants’ residence, Animal Control

Officer John Moore went to the Abbotts’ residence and

No. 12-1121 3

observed twenty-year-old Travis Abbott running into

the house and Biscuit unchained in the garage area.

(The record indicates that up to two additional animal

control officers were present, but it is unclear whether

they arrived with Officer Moore.)

Over the next hour-and-a-half Officer Moore at-

tempted to corral Biscuit, but Travis interfered with

those efforts by running to different doors and windows

in the house and calling out Biscuit’s name, which

prompted Biscuit to run to that area of the house. At

one point, Travis told Moore and another animal

control officer that if they touched his dog he would

“knock them out.” Travis shouted additional threats at

Officer Moore while displaying his middle finger, at

one point yelling, “If you don’t leave I’m going to

kick your ass.” These repeated threats prompted

Officer Moore to call the police. When informed that

the police had been called, Travis locked himself inside

but continued calling Biscuit to different areas of the

house. At some point, Travis called his mother, Cindy

Abbott, who was at work, and asked her to come home.

Sergeant James Lawley of the Riverton Police Depart-

ment was the first police officer to arrive at the Abbotts’

residence, but he was instructed to standby until a

Sangamon County Deputy arrived. The animal control

officers informed Sergeant Lawley that Travis had ob-

structed their efforts to capture Biscuit and had

threatened them by shouting, “If you touch my dog

I am going to kick your ass[;] I am going to knock you

out.” Sergeant Lawley successfully summoned Travis to

4 No. 12-1121

the house’s front window and then asked him to step

outside and talk; Travis responded, “Fuck you. I am no[t]

coming out there.” A few minutes later, Deputy Sweeney

arrived and was told by Sergeant Lawley that Travis

had threatened the animal control officers while making

a fist; Sweeney attempted to coax Travis out of the house

but was unsuccessful. Around this time, Cindy arrived

home and parked her Jeep Liberty in the driveway

behind Sweeney’s squad car. Deputy Sweeney talked

with Cindy and requested that she convince Travis to

come outside and tell his side of the story; Sweeney

advised Cindy that he could get a warrant if Travis re-

fused. Cindy went inside the house and came back

outside a short time later with Travis in tow.

Upon questioning by Deputy Sweeney, Travis ad-

mitted that he had verbally threatened the animal

control officers, knowing them to be animal control

officers. Sweeney informed Travis that he was under

arrest for obstruction and assault. Travis protested and

began backing away, but Sergeant Lawley grabbed his

arm and advised him not to resist. Sweeney handcuffed

Travis’s arms behind his back, double locked the hand-

cuffs, and confirmed the proper fit. Once hand-

cuffed, Travis became agitated and angry with Cindy,

yelling and cursing at her. And as he was being escorted

to Sweeney’s police cruiser, Travis yelled to the animal

control officers, “Thanks a lot assholes!” Sweeney con-

ducted a quick pat-down search and then placed Travis

in the backseat of his squad car, fastening him in with

a seatbelt.

No. 12-1121 5

Once Travis had been handcuffed, Cindy had gone

back into the house to use the restroom and to lock up.

When she came back outside, she stood in the driveway

and talked with Sergeant Lawley. At this point, Deputy

Sweeney had begun backing his squad car out of the

driveway, which required him to maneuver around

Cindy’s vehicle.

Meanwhile, Travis had become even more agitated in

the backseat of the squad car. He had elevated his legs,

struggled around, and successfully maneuvered his

hands from behind his back to the front of his body; he

had also begun screaming for his mother to get him out.

(According to Sweeney, Travis had also unfastened his

seatbelt and was reaching for the door, but Travis

denies this.) Sweeney’s squad car that day was not

equipped with a partition or a prisoner-transport shield,

so when Sweeney saw Travis fidgeting around he

reached back and attempted to gain control of Travis,

all the while still trying to navigate his car backward

around Cindy’s vehicle. Perhaps unsurprisingly, Sweeney’s

foot slipped off the brake pedal as he was trying to

control Travis and his cruiser rolled into Cindy’s vehicle.

Cindy, who was still speaking with Sergeant

Lawley, began screaming when the vehicles collided.

Lawley attempted to calm her, telling her that Sweeney

had merely bumped her vehicle and that any damage

would be covered by insurance. Cindy did not

calm down. Instead, she began walking toward her

vehicle and the squad car to inspect the damage and

was screaming, “I can’t believe you hit my vehicle!”

6 No. 12-1121

Deputy Sweeney placed his cruiser in park and exited

so that he could go to the rear passenger-side door

where, according to him, Travis was attempting to es-

cape. But as he exited the vehicle, he observed Cindy,

upset and screaming, moving toward his location at

the front driver-side door of the squad car. According

to Sweeney, he was concerned that Cindy was trying

to help her son escape, for Travis was still “going nuts”

in the backseat of the car. As a result, he held up his

hand and twice ordered Cindy to stop, but she con-

tinued on toward the vehicles. Cindy does not recall

whether Sweeney ordered her to stop, though she

does recall that he attempted to calm her. According to

Cindy, she was walking toward her vehicle to inspect

the damage when Deputy Sweeney, without warning,

shot her in the abdomen with his taser, causing her to

fall to the ground. Specifically, she explained that “some-

thing hit me and it dropped me to my knees and

then on my back and I was immobilized.” As she was

screaming from the pain, Deputy Sweeney came closer

to her and yelled for her to roll over onto her stomach,

but she could not move so Sweeney hit her with another

jolt of electricity. After the second jolt, Sweeney rolled

Cindy over onto her stomach and handcuffed her with

her arms behind her back. With Cindy secure, Sweeney

then went to the other side of the squad car to

resecure Travis.

Sweeney disputes Cindy’s version. According to Swee-

ney and Sergeant Lawley, Cindy was screaming about

her son being arrested and her car being hit. When

Cindy disobeyed Sweeney’s orders to stop, he warned

her twice that if she failed to comply he would use his

No. 12-1121 7

taser. And when she continued approaching, he shot her

in the abdomen with his taser, delivered an electric

shock, and caused her to drop to the ground. Sergeant

Lawley claims that after the first tasing, Cindy disobeyed

Sweeney’s order to turn over and attempted to get up,

so Sweeney zapped her a second time. Sweeney, how-

ever, testified that he “began giving her commands to

turn over onto her stomach so that she could be

handcuffed,” but she was not responsive so he “again

commanded her and told her if she did not comply that

she would be tased again”; Cindy again gave no

response, so Sweeney tased her a second time. After the

second tasing, Cindy rolled over onto her stomach

without help and placed her hands behind her back.

Sergeant Lawley placed her in handcuffs, while Sweeney

went to deal with Travis.

Travis testified that when Sweeney arrived at the

rear passenger-side door, he “got on top of me and

dropped an elbow on my throat and just tried to ta[s]e

me. The top was off of it, the ta[s]er . . . . And he tried

to getting [sic] me all over my whole body. And he did,

he kept getting me, getting me, getting me. I was trying

to fight with him.” He testified further that Sweeney

told him “just let me get you one good time” and

Sweeney started “getting” him all over his arm with

the taser, delivering “little second bursts.” Travis also

claims that once Sweeney pulled him out of the car he

threw him on the ground, gave him “the knee bomb,”

and used the taser three more times on his back. Travis

denies that he was attempting to escape and that

he was acting wild when Sweeney opened the rear pas-

8 No. 12-1121

senger-side door. But he does not dispute that he

was struggling with Sweeney in the back of the police

cruiser and at one point was “out powering” Sweeney.

Deputy Sweeney’s recollection is significantly differ-

ent. According to him, while he was engaged with

Cindy, Travis was kicking the rear passenger-side-

door window in an attempt to escape (he could not

simply open the door because the child-safety switch

was on, so he was trying to kick his way out). And ac-

cording to Officer Moore, when Sweeney opened the

car door Travis “continued to act wild and attempt to

escape and fight with Deputy Sweeney.” Sergeant Lawley

went to assist Sweeney after he had secured Cindy, and

when he arrived at the rear passenger-side door,

Sweeney was on top of Travis, but Travis had his hands

in front of him and was fighting. Sweeney told Travis

to stop resisting but to no avail; ultimately he had to

use his taser to subdue Travis. Officer Moore stated

that Sweeney “drive stunned” Travis “until he stopped

fighting.” According to Deputy Sweeney, he used his

taser on Travis only inside the car. Once Travis was

subdued, Deputy Sweeney and Sergeant Lawley

removed Travis from the backseat and placed him on

the ground in a prone position. Sweeney then unlocked

the handcuffs and reapplied them with Travis’s

hands behind his back. Travis complied with Sweeney’s

order to remain lying face down.

Cindy could hear Travis screaming but she could not

see him; in fact, she did not see Travis from the time

he was first handcuffed until later at the police station.

No. 12-1121 9

After Cindy had been lying on her stomach with her

hands cuffed behind her back for what she thinks was

thirty minutes, Deputy Sweeney returned and sat her

up. Sweeney then had a female animal control officer

remove the taser prongs from Cindy’s abdomen. He

then told Cindy that he would summon another officer

to transport her.

Eventually, Cindy and Travis were transported to

the police station in separate vehicles. They were held

at the jail for about eight hours until Cindy’s parents

(Travis’s grandparents) posted bail. Cindy was never

informed of the charges against her. She hired an at-

torney to represent her and Travis at their court date,

but she never heard anything further and assumed that

the matter had been dropped.

B

In 2009, the Abbotts filed this action under 42 U.S.C.

§ 1983 in Illinois state court, but the defendants

removed the case to the Central District of Illinois, see

28 U.S.C. § 1441. On August 19, 2011, the Abbotts filed

their second amended complaint, in which they each

asserted claims of false arrest, false imprisonment, and

excessive force.

The district court granted Sweeney’s motion for sum-

mary judgment. See Abbott v. Sangamon County,

No. 09-3261, 2011 WL 5244259 (C.D. Ill. Nov. 3, 2011). The

court concluded that Deputy Sweeney had probable

cause to arrest both Travis and Cindy and that, in any

10 No. 12-1121

event, he was cloaked with qualified immunity. Id. at *5-6,

10. On Travis’s excessive-force claim, the court con-

cluded that Sweeney was “entitled to qualified im-

munity because a reasonable officer could have believed

that he was entitled to use force on an arrestee who

continued to physically resist or who failed to submit

to the officer’s authority.” Id. at *9 (citation omitted).

And “based on the undisputed fact that Deputy

Sweeney used the taser until Travis stopped fighting,

Deputy Sweeney’s use of force was no more than

that necessary to gain control of Travis.” Id. (citation

omitted). On Cindy’s excessive-force claim, the district

court concluded that Cindy had admitted that she dis-

obeyed direct orders to stop and roll over on her

stomach, so “[a] reasonable officer would have

believed that employing a taser gun [the first

time] . . . would not violate Cindy’s constitutional

rights.” Id. (citation omitted). As to the second employ-

ment of the taser, the court dismissed Cindy’s testimony

that she did not comply because she could not move

because “ ‘what matters for this question is not the

arrestee’s perspective but rather the perspective of a

reasonable officer on the scene.’ ” Id. at *10 (citation omit-

ted).

Subsequently, the Abbotts filed a motion to dismiss

the remaining defendants as well as a motion to alter

the judgment. On January 5, 2012, the district court dis-

No. 12-1121 11

missed the remaining defendants without prejudice,1

denied the motion to alter the judgment, and entered

final judgment against the Abbotts. This appeal followed.

II

We review de novo the district court’s grant of

summary judgment. E.g., Suarez v. Town of Ogden Dunes,

Ind., 581 F.3d 591, 595 (7th Cir. 2009). Summary judgment

is proper “if the movant shows that there is no genuine

dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-

23 (1986).

Governmental actors performing discretionary func-

tions are entitled to qualified immunity from suits

for damages “insofar as their conduct does not violate

clearly established statutory or constitutional rights

of which a reasonable person would have known.” Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations omit-

ted); accord Messerschmidt v. Millender, 132 S. Ct. 1235,

1

During oral argument before this court, the Abbotts’ counsel

committed not to refile the claims against the County and the

Sheriff (i.e., the Abbotts have agreed to dismissal of those

defendants with prejudice), thereby eliminating any question

about the finality of the district court’s judgment and, accord-

ingly, our appellate jurisdiction, 28 U.S.C. § 1291. See, e.g.,

Arrow Gear Co. v. Downers Grove Sanitary Dist., 629 F.3d 633, 636-

37 (7th Cir. 2010); India Breweries, Inc. v. Miller Brewing Co., 612

F.3d 651, 657-58 (7th Cir. 2010).

12 No. 12-1121

1244 (2012). “Qualified immunity balances two im-

portant interests—the need to hold public officials ac-

countable when they exercise power irresponsibly and

the need to shield officers from harassment, distraction,

and liability when they perform their duties reason-

ably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). It

gives public officials “breathing room to make rea-

sonable but mistaken judgments about open legal ques-

tions. When properly applied, it protects ‘all but the

plainly incompetent or those who knowingly violate

the law.’ ” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011)

(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)); see

also Anderson v. Creighton, 483 U.S. 635, 646 (1987) (“The

general rule of qualified immunity is intended to

provide government officials with the ability ‘rea-

sonably to anticipate when their conduct may give rise

to liability for damages.’ ” (brackets and citation omitted)).

To overcome the defendant’s invocation of qualified

immunity, the plaintiffs must show both (1) that the

facts make out a constitutional violation, and (2) that

the constitutional right was “clearly established” at the

time of the official’s alleged misconduct. E.g., al-Kidd,

131 S. Ct. at 2080; Chelios v. Heavener, 520 F.3d 678, 691

(7th Cir. 2008). Though once required to determine

whether a violation occurred before determining

whether the right was clearly established, see Saucier v.

Katz, 533 U.S. 194, 200-01 (2001), courts now have dis-

cretion to grant immunity on the basis that the right

was not clearly established without determining whether

there was a violation in the first place, see Pearson, 555

U.S. at 227, abrogating Saucier, 533 U.S. at 200-01.

No. 12-1121 13

A

We begin with the Abbotts’ false-arrest and false-impris-

onment claims. The existence of probable cause to arrest

is an absolute defense to any § 1983 claim against a

police officer for false arrest or false imprisonment.

Mustafa v. City of Chicago, 442 F.3d 544, 547 (7th Cir. 2006).

Probable cause to justify an arrest exists if the totality

of the facts and circumstances known to the officer at the

time of the arrest would warrant a reasonable, prudent

person in believing that the arrestee had committed,

was committing, or was about to commit a crime. See

Thayer v. Chiczewski, ___ F.3d ___, ___, Nos. 10-1974 &

10-2064, 2012 WL 6621169, at *6 (7th Cir. Nov. 27, 2012); see

also Michigan v. DeFillippo, 443 U.S. 31, 37 (1979); Beck v.

Ohio, 379 U.S. 89, 91 (1964). As the term suggests,

probable cause deals not with hard certainties but with

probabilities. Illinois v. Gates, 462 U.S. 213, 231 (1983);

Suarez, 581 F.3d at 595. Yet, although it requires some-

thing more than a hunch, probable cause does not

require a finding that it was more likely than not that the

arrestee was engaged in criminal activity—the officer’s

belief that the arrestee was committing a crime need

only be reasonable. See Henry v. United States, 361 U.S.

98, 102 (1959); Fox v. Hayes, 600 F.3d 819, 833 (7th Cir.

2010). It is a practical, commonsense, nontechnical, and

fluid conception that deals with “the factual and

practical considerations of everyday life on which rea-

sonable and prudent men, not legal technicians, act.”

Brinegar v. United States, 338 U.S. 160, 175 (1949);

accord United States v. Reed, 443 F.3d 600, 603 (7th Cir.

14 No. 12-1121

2006). Determining whether an officer had probable

cause to arrest entails a purely objective inquiry; the

officer’s subjective state of mind and beliefs are irrele-

vant. Whren v. United States, 517 U.S. 806, 813 (1996);

Tebbens v. Mushol, 692 F.3d 807, 819 (7th Cir. 2012). Al-

though our focus is on what the officer knew at the time

of the arrest, Devenpeck v. Alford, 543 U.S. 146, 152 (2004),

we must determine whether those facts and circum-

stances, “ ‘viewed from the standpoint of an objectively

reasonable police officer, amount to’ probable cause,”

Maryland v. Pringle, 540 U.S. 366, 371 (2003) (quoting

Ornelas v. United States, 517 U.S. 690, 696 (1996)). Cognizant

that police officers operate in the real world, often in

rapidly unfolding and even chaotic circumstances, we

view the facts not “ ‘as an omniscient observer would

perceive them but . . . as they would have appeared to

a reasonable person in the position of the arresting

officer—seeing what he saw, hearing what he

heard.’ ” Carmichael v. Vill. of Palatine, Ill., 605 F.3d 451,

457 (7th Cir. 2010) (emphasis omitted) (quoting Mahoney

v. Kesery, 976 F.2d 1054, 1057 (7th Cir. 1992)). Usually in

a § 1983 false-arrest case the jury determines whether

the arrest was supported by probable cause; but if the

underlying facts are undisputed, the court can make

that decision on summary judgment. Chelios, 520 F.3d at

686; cf. Ornelas, 517 U.S. at 691 (appellate courts review

de novo ultimate question of probable cause).

The probable-cause standard inherently allows room

for reasonable mistakes, see Brinegar, 338 U.S. at 176,

but qualified immunity affords an added layer of protec-

tion by shielding officers from “suit for damages if ‘a

No. 12-1121 15

reasonable officer could have believed [the arrest] to

be lawful, in light of clearly established law and the

information the [arresting] officers possessed.’ ” Hunter

v. Bryant, 502 U.S. 224, 227 (1991) (per curiam) (second

alteration in original) (quoting Anderson, 483 U.S. at 641);

see, e.g., Fleming v. Livingston Cnty., Ill., 674 F.3d 874,

880 (7th Cir. 2012). Often termed “arguable probable

cause,” Thayer, ___ F.3d at ___, 2012 WL 6621169, at *6,

qualified immunity in this context protects officers

who reasonably but mistakenly believe that probable

cause exists, Hunter, 502 U.S. at 227. Though at first

blush similar, the arguable-probable-cause inquiry is

separate from the probable-cause inquiry, Fleming, 674

F.3d at 880; whereas an arrest not supported by

probable cause is a constitutional violation, an arrest not

supported by arguable probable cause is a violation of

a “clearly established” constitutional right, see Hunter,

502 U.S. at 227; McComas v. Brickley, 673 F.3d 722, 725

(7th Cir. 2012).

The existence of probable cause or arguable probable

cause depends, in the first instance, on the elements of

the predicate criminal offense(s) as defined by state law.

DeFillippo, 443 U.S. at 36; Thayer, ___ F.3d at ___, 2012

WL 6621169, at *7. There is some dispute as to

precisely what Deputy Sweeney told Travis he was

being arrested for, but this is immaterial because an

arrest can be supported by probable cause that the

arrestee committed any crime, regardless of the officer’s

belief as to which crime was at issue, Devenpeck, 543 U.S. at

153; Fox, 600 F.3d at 837. It is similarly immaterial

that Cindy was not informed of the basis for her arrest.

16 No. 12-1121

See Devenpeck, 543 U.S. at 155 (“While it is assuredly

good police practice to inform a person of the reason for

his arrest at the time he is taken into custody, we have

never held that to be constitutionally required.”).

1

Deputy Sweeney argues, and the district court con-

cluded, that he had probable cause to arrest Travis either

for assault or disorderly conduct (or both) under Illinois

law. Whether Sweeney did, of course, depends on the

facts known to him at the time of the arrest. E.g., Tebbens, 692

F.3d at 816. There is no serious question that Travis

was under arrest when Sweeney told him he was under

arrest and placed him in handcuffs. Cf. Hayes v. Florida,

470 U.S. 811, 813-17 (1985); Dunaway v. New York, 442 U.S.

200, 206-16 (1979).

In Illinois, misdemeanor assault occurs when a

person “knowingly engages in conduct which places

another in reasonable apprehension of receiving a bat-

tery.” 720 ILCS 5/12-1(a). Words alone seldom if ever are

sufficient to constitute an assault; rather, there must

be an accompanying gesture that is either inherently

threatening or made so by the accompanying words.

Kijonka v. Seitzinger, 363 F.3d 645, 647 (7th Cir. 2004)

(Illinois law); People v. Floyd, 663 N.E.2d 74, 76 (Ill. App.

Ct. 1996); see Fox, 600 F.3d at 838 (no probable cause

where plaintiff’s statement was not “accompanied by a

threatening gesture, such as a raised fist”). And assault

lies only if the threatening gesture creates in the victim

an objectively reasonable apprehension of an imminent

No. 12-1121 17

battery. See Kijonka, 363 F.3d at 647-48; Floyd, 663 N.E.2d

at 75-76.

We have little difficulty concluding that Sweeney

had probable cause to arrest Travis for assault. When

Sweeney arrived at the scene, Sergeant Lawley told him

that Travis had threatened to wallop the animal control

officers if they touched Biscuit and that Travis had made

a fist while shouting at the officers. Thus, at the time of

the arrest, Sweeney knew that Travis had threatened

the animal control officers with words and at least one

accompanying gesture; that the threats had been condi-

tioned on the officers’ successfully corralling Biscuit;

and that the officers had considered the threats serious

enough to warrant calling for police assistance. See,

e.g., Woods v. City of Chicago, 234 F.3d 979, 996 (7th Cir.

2000) (probable cause to arrest where plaintiff wielded

lead pipe while threatening to kill victim); People v. Preis,

189 N.E.2d 254, 256-57 (Ill. 1963) (disgruntled client

committed assault with intent to murder where she

told lawyer that she was going to shoot him, placed

her hand in her bulging coat pocket, and stood up);

People v. Ferguson, 537 N.E.2d 880, 881-82 (Ill. App. Ct.

1989) (defendant committed assault when he reached

into vehicle’s trunk and threatened to “kick [victim’s]

ass”).

It is true that Sweeney did almost no independent

investigation after Sergeant Lawley apprised him of

the situation, but he was not required to do so, because

“[o]nce a reasonably credible witness informs an officer

that a suspect has committed a crime, the police have

18 No. 12-1121

probable cause to arrest the suspect,” Mustafa, 442 F.3d

at 548; see also Kelley v. Myler, 149 F.3d 641, 647 (7th Cir.

1998) (probable cause to arrest plaintiff for trespass

based on complaint; officers not required to verify that

plaintiff had crossed property line). Travis makes no

argument that it was unreasonable for Sweeney to rely

on Lawley’s information or for Lawley to rely on the

animal control officers’ complaint—that is, he makes no

claim that those witnesses were not reasonably credible.

See, e.g., Holmes v. Vill. of Hoffman Estates, 511 F.3d 673,

680 (7th Cir. 2007) (officer entitled to rely on informa-

tion from fellow law enforcement officer); Sheik-Abdi

v. McClellan, 37 F.3d 1240, 1247 (7th Cir. 1994) (officers

entitled to rely on information from paramedic). And

the only additional information Sweeney learned prior

to the arrest came from Travis and corroborated much

of what Sweeney had already been told.

Travis does not dispute any of this. Rather, he

contends that there was no probable cause to arrest him

for assault because he made the threats and gestures

while he was inside the house, so he could not have

placed the animal control officers in apprehension

of an imminent battery. It is unclear whether Travis

was inside the entire time he was making the threats—the

record indicates that Travis did not lock himself inside

the house until after Officer Moore had called the

police, suggesting that he may have been outside before-

hand, and Sergeant Lawley attested that when he

arrived Travis was standing outside on the porch—but

this lack of clarity in the record is not material. Even

assuming that Travis was inside the house when he

No. 12-1121 19

made the threats and accompanying gesture, it is difficult

to understand how Officer Moore’s apprehension of a

battery was any less imminent. The threat was con-

ditioned on Moore touching or capturing Biscuit, which

he was trying to do. Had the officer successfully

corralled the dog, Travis could have made good on his

threats simply by stepping outside and engaging the

officer in fisticuffs—he retained control over his ability

to carry out his threats. Cf. People v. Kettler, 459 N.E.2d 7,

11 (Ill. App. Ct. 1984) (no assault where arrestee had

been strapped to gurney). In any event, Travis does not

contend that Sergeant Lawley or anyone else informed

Sweeney that Travis had made the threats and gestures

while locked inside the house. Cf. Gramenos v. Jewel Cos.,

797 F.2d 432, 439 (7th Cir. 1986) (“Probable cause

does not depend on the witness turning out to have

been right; it’s what the police know, not whether

they know the truth, that matters.”). Thus, even when

viewing the facts in Travis’s favor, Deputy Sweeney

clearly had probable cause to arrest him for assault.

As if this were not enough, Deputy Sweeney also had

probable cause to arrest Travis for disorderly conduct

under Illinois law. See 720 ILCS 5/26-1(a)(1) (“A per-

son commits disorderly conduct when he know-

ingly . . . [d]oes any act in such unreasonable manner as

to alarm or disturb another and to provoke a breach of

the peace . . . .”). In Illinois, “[t]o commit disorderly

conduct, ‘a person must engage in conduct that: (1) is

unreasonable; (2) alarms or disturbs another; and

(3) threatens to provoke or provokes a breach of the

peace.’ ” Thayer, ___ F.3d at ___, 2012 WL 6621169, at *8

20 No. 12-1121

(citation omitted). The unreasonableness of the conduct

depends on both the conduct itself and the circum-

stances in which the conduct occurs. Biddle v. Martin,

992 F.2d 673, 677 (7th Cir. 1993). But the conduct at

issue need not occur in the public square to threaten to

provoke or to provoke a breach of the peace. See

People v. Davis, 413 N.E.2d 413, 415 (Ill. 1980).

The Illinois Supreme Court has explained that the

offense of disorderly conduct “is intended to guard

against ‘an invasion of the right of others not to be mo-

lested or harassed, either mentally or physically, without

justification.’ ” Id. (citation omitted); see also Reher v.

Vivo, 656 F.3d 772, 777 (7th Cir. 2011) (“An arrest for

disorderly conduct is justified when the defendant

directly harasses or threatens other people.” (citation

omitted)). Deputy Sweeney reasonably could have con-

cluded that Travis “molested or harassed” the animal

control officers when he threatened to thump them if

they succeeded in capturing Biscuit and that his vulgar

threats and childish antics were unreasonable and threat-

ened to provoke a breach of the peace. See Davis, 413

N.E.2d at 415-16 (defendant committed disorderly

conduct by entering woman’s home, waiving sheets of

paper at her, and telling her that if her complaint were

prosecuted he would carry out undefined threat); In re

D.W., 502 N.E.2d 419, 420-22 (Ill. App. Ct. 1986) (juvenile’s

statement to another juvenile that he was going to “kick

his ass” constituted disorderly conduct); see also Sroga

v. Weiglen, 649 F.3d 604, 606-07 (7th Cir. 2011) (probable

cause to arrest for disorderly conduct where plaintiff

jumped on top of car as it was being towed); Biddle, 992

No. 12-1121 21

F.2d at 677-78 (probable cause to arrest for disorderly

conduct where plaintiff drunkenly had been screaming

profanities and making violent arm gestures).

Travis contends, however, that his actions neither

threatened to provoke nor actually provoked a breach

of the peace. He relies on People v. Trester, 421 N.E.2d

959 (Ill. App. Ct. 1981), in which the court reversed a

defendant’s disorderly conduct conviction on the

ground that the defendant’s statement to a police offi-

cer—that if the officer “would take off his gun and

badge, he, defendant, would punch [the officer] in the

nose and they would fight,” id. at 960—was “couched in

terms of what might happen” and thus could not “be

construed as an immediate threat,” id. at 961. In effect,

Travis makes an immediacy argument similar to that

he made above, and just as before, this argument fails.

Unlike Trester, in which the threat was contingent on

the highly unlikely event that the officer would take off

his gun and badge to rumble with the defendant,

Travis’s threat was contingent on the animal control

officers successfully performing their official duty, cap-

turing Biscuit. Cf. Humphrey v. Staszak, 148 F.3d 719,

728 (7th Cir. 1998) (“If an officer has reasonable grounds

to believe that further trouble will ensue, he need not

wait for the trouble to erupt, but may take lawful steps

to prevent the problem.”). Moreover, Trester has been

called into question by the court that rendered it. In re

D.W., 502 N.E.2d at 422.

In any event, we are not concerned with whether

Travis could have been convicted but only with whether

Sweeney had probable cause to arrest him. See Sroga,

22 No. 12-1121

649 F.3d at 610 (“And ‘to form a belief of probable cause,

an arresting officer is not required . . . to act as a judge or

jury to determine whether a person’s conduct satisfies

all of the essential elements of a particular statute.’ ”

(citation omitted)). As indicated above, Sweeney had

probable cause to arrest Travis for disorderly conduct;

but even if he did not, he would be cloaked with

qualified immunity because at the very least he had

arguable probable cause. The most that Travis has estab-

lished is that there is a conflict between In re D.W. and

Trester. Therefore, even if we were inclined to find

on this record that Sweeney did not actually have

probable cause to arrest Travis for disorderly conduct

(and we are not so inclined), Sweeney would be entitled

to qualified immunity because a reasonable person

could have reasonably concluded that there was

probable cause based on the holding of In re D.W.,

502 N.E.2d at 420-22. See Thayer, ___ F.3d at ___, 2012 WL

6621169, at *6 (“ ‘Qualified immunity protects police

officers who reasonably interpret an unclear statute.’ ”

(brackets omitted) (quoting Mustafa, 442 F.3d at 549)).

Deputy Sweeney had probable cause to arrest Travis

for assault and for disorderly conduct. Therefore, the

district court did not err in granting summary judgment

for Deputy Sweeney on Travis’s false-arrest and false-

imprisonment claims.

2

Whether there was probable cause to arrest Cindy is

a closer question. Sweeney maintains that he had probable

No. 12-1121 23

cause to arrest her for obstructing or resisting a peace

officer. See 720 ILCS 5/31-1(a) (“A person who

knowingly resists or obstructs the performance by

one known to the person to be a peace officer . . . of any

authorized act within his official capacity commits a

Class A misdemeanor.”). The district court agreed, con-

cluding that there was probable cause that Cindy had

attempted to help Travis escape and that she had

also resisted arrest. Alternatively, Sweeney contends,

and the district court also agreed, that he had arguable

probable cause to arrest Cindy and is therefore cloaked

with qualified immunity.

(i)

The district court’s brief probable-cause analysis

seems to have hinged on what it viewed as the

following undisputed facts: Cindy was “running” toward

Sweeney’s squad car screaming while Travis was

“going nuts” in the back seat of the squad car, and

“Deputy Sweeney thought Cindy was trying to help

Travis escape.” The district court’s analysis is flawed

for several reasons. First, Cindy testified in her deposition

that she was walking, not running, so viewing the facts in

her favor, as we must, her outward conduct was not as

aggressive as Sweeney’s narrative suggests. Second, it is

wholly irrelevant that Sweeney subjectively thought

Cindy was trying to help Travis escape because the

probable-cause inquiry concerns not what the officer

actually believed but what a reasonable person in the

officer’s shoes would have believed. See, e.g., Devenpeck,

24 No. 12-1121

543 U.S. at 154-55; Whren, 517 U.S. at 813. (It is likewise

irrelevant that Cindy’s subjective intent was to move

toward her own vehicle and not the squad car, as she

does not dispute that the squad car was in between her

and her vehicle.) Finally, and most importantly, the

district court failed to consider the totality of the circum-

stances known to Sweeney at the time, focusing instead

on only a small part of the overall picture. Cf. Fox, 600

F.3d at 834 (officers cannot close their eyes to informa-

tion that cuts against probable cause).

Viewing all the facts in Cindy’s favor without regard

to the parties’ subjective beliefs, a jury could conclude

that no reasonable person could have believed Cindy

was attempting to spring Travis. Recall that Cindy was

instrumental in effectuating Travis’s arrest; at Sweeney’s

request, she went into the house and persuaded Travis

to come outside, thereby saving Sweeney from having

to obtain an arrest warrant, see Payton v. New York, 445

U.S. 573, 576 (1980). Cindy did not put up a fuss

when Travis was handcuffed and instead went inside

to use the restroom. She became excited only after

Sweeney backed into her vehicle, at which point she

began screaming, “I can’t believe you hit my vehicle!” She

then “walked” toward the driver’s side of the squad car

as Sweeney was attempting to go to the passenger’s side

of the squad car to secure Travis. There was at least

one other police officer on-scene, not to mention several

animal control officers. And though not mentioned by

either party, the record also demonstrates that Cindy

was a petite woman, whereas Sweeney was a man of

somewhat generous proportions, testifying that he

No. 12-1121 25

was 5'9" and 275 pounds at the time of his deposition. It

is true that Travis was acting wildly in the backseat,

but it is also true that, moments before, he had been

yelling and cursing at Cindy. On this record, there are

sufficient questions of fact upon which a jury could

find that Sweeney lacked probable cause to arrest Cindy

for attempting to help Travis escape.

The district court also concluded that Sweeney had

probable cause to arrest Cindy for resisting arrest, based

on the undisputed facts that she ignored Sweeney’s

order to stop and then ignored his order to get down

on her stomach. As an initial matter, this account does

not adequately consider Cindy’s version of the incident

by suggesting that Cindy was standing up when first

ordered “to get down on her stomach”; her testimony

(and Sweeney’s) indicates that she was not ordered to

get on her stomach until after being dropped to the

ground by the first shot from the taser. More im-

portantly, the district court failed to pinpoint the

moment at which Sweeney arrested or attempted to

arrest Cindy, which is necessary to determine

whether her actions constituted resisting arrest. See

People v. Agnew-Downs, 936 N.E.2d 166, 173-74, 176 (Ill.

App. Ct. 2010).

An arrest, of course, is the archetypical “seizure” of a

person under the Fourth Amendment. California v.

Hodari D., 499 U.S. 621, 624 (1991). A person is “seized”

when his or her freedom of movement is terminated

or restrained by intentionally applied physical force or

submission to an assertion of authority. Id. at 626; see

26 No. 12-1121

also Brendlin v. California, 551 U.S. 249, 254 (2007); Brower

v. County of Inyo, 489 U.S. 593, 597 (1989). A seizure rises

to the level of an arrest “when a reasonable person in

the suspect’s position would have understood the

situation to constitute a restraint on freedom of move-

ment of the degree which the law associates with formal

arrest.” Ochana v. Flores, 347 F.3d 266, 270 (7th Cir. 2003)

(internal quotation marks and citation omitted). To deter-

mine if a seizure, including an arrest, has occurred,

courts engage in an objective inquiry that presupposes

an innocent person. United States v. Drayton, 536

U.S. 194, 202 (2002); Florida v. Bostick, 501 U.S. 429, 437-

38 (1991).

It is clear that when Sweeney deployed his taser into

Cindy’s abdomen and zapped her with electricity, her

freedom of movement was restrained to a degree that

the law associates with formal arrest; so at that point

she was arrested. See, e.g., Brooks v. City of Aurora, Ill.,

653 F.3d 478, 484 (7th Cir. 2011) (successful seizure oc-

curred when arrestee was incapacitated by pepper

spray). But was she arrested before then? Whether she

ran, walked, sauntered, or moseyed, it is undisputed

that Cindy approached Sweeney’s position. Sweeney

claims that he ordered her to halt before shooting her

with his taser, and this too is undisputed because Cindy

does not remember one way or the other. This order,

however, did not constitute an arrest as it was an asser-

tion of authority to which Cindy did not submit. See

Hodari D., 499 U.S. at 629. Thus, Cindy was not under

arrest before she was shot with the taser.

No. 12-1121 27

Furthermore, Cindy’s alleged defiance of Sweeney’s

order to halt did not constitute resistance of an at-

tempted arrest. Suppose Cindy had obeyed Sweeney’s

order and had stopped in her tracks—she would not

have been deemed arrested or even seized at that point

for the reason that Sweeney’s order sought to prevent

her from coming rather than going, that is, she was free

to go anywhere in the world except closer to the squad

car. See United States v. Mendenhall, 446 U.S. 544, 554

(1980) (opinion of Stewart, J.) (“We conclude that a

person has been ‘seized’ within the meaning of the

Fourth Amendment only if, in view of all of the circum-

stances surrounding the incident, a reasonable person

would have believed that he was not free to leave.” (empha-

sis added)); see also Michigan v. Chesternut, 486 U.S. 567,

573 (1988). And even if she would not have felt free

to leave the driveway—it was, after all, her home and

a handful of strangers were present—a reasonable

person in her position would have felt free to terminate

the encounter by walking away. See, e.g., Drayton, 536

U.S. at 202 (explaining that if a person does not feel free

to leave for reasons unrelated to the officer’s presence,

the inquiry shifts to whether a reasonable person under

the circumstances would feel free to terminate the en-

counter with the officer). Indeed, a jury might conclude

that under the circumstances Sweeney was really just

trying to avoid a confrontation with Cindy over a

collateral matter so that he could attend to what quite

sensibly he viewed as the more important task, securing

his prisoner. A jury could reasonably determine that, at

the time he first deployed his taser, Sweeney lacked

28 No. 12-1121

probable cause to arrest Cindy for resisting arrest, inas-

much as there had been no arrest or attempted arrest

prior to that point.

The district court also concluded that Cindy resisted

arrest by failing to turn over onto her stomach. This

alleged resistance occurred between the first and second

jolts from the taser, so if this constitutes resisting arrest

it was resistance of an unlawful arrest (based on our

analysis up to this point). Illinois law is clear that a

person violates section 5/31-1(a) if he or she resists

or obstructs even an unlawful arrest made by a

known peace officer. Brooks, 653 F.3d at 484; see 720

ILCS 5/7-7; People v. Villarreal, 604 N.E.2d 923, 926-28

(Ill. 1992). The effect of this rule on a § 1983 false-

arrest claim was considered in a case where an officer

went to the arrestee’s home to arrest him pursuant to

an allegedly unlawful warrant, and when the officer

grabbed the arrestee’s wrist to handcuff him, he broke

free from the officer’s grasp and began backpedaling,

thereby prompting the officer to use pepper spray to

subdue him. Brooks, 653 F.3d at 481-82, 485. We held

that there was no need to determine whether the

warrant had been obtained based on fabricated evi-

dence “because, at the time [the arrestee] was seized,

the officers had probable cause to arrest him for

resisting a peace officer.” Id. at 485. Critical to our

analysis was the fact that the arrestee had avoided the

officer’s first attempt at a seizure by escaping the

officer’s initial grasp—this brief initial grasp was not

sufficient to constitute an actual seizure because it did

not significantly detain the arrestee. Id.; see also Hodari D.,

No. 12-1121 29

499 U.S. at 624-26 (seizure by physical force occurs where

officer lays hands on suspect or otherwise applies

physical force to restrain suspect’s movement, even if

suspect breaks free). The arrest occurred when the

arrestee was subdued with pepper spray, and the

arrestee’s conduct up to that point provided probable

cause to arrest him for resisting arrest. Brooks, 653 F.3d

at 484-85. In the present case, however, Cindy remained

in the clutches of the taser prongs continuously

from the first jolt through the second jolt. The shot and

accompanying first jolt of electric current was not a

failed attempt at a seizure or a temporary seizure but a

successful seizure that was not broken until later that

night when Cindy walked out of jail. Unlike Brooks,

where the probable-cause determination was made with

reference to the second (and successful) attempted

seizure, here the probable-cause determination must be

made with reference to the first (and successful) attempt

at a seizure, the initial deployment of the taser. And, as

explained above, there was no probable cause at that

time to justify arresting Cindy for resisting arrest.

(ii)

Up to this point, we have constrained our analysis to

the framework employed by the district court and have

examined only whether Sweeney had probable cause

that Cindy was committing obstruction by trying to help

Travis escape or resisting arrest. The district court’s

analysis of Cindy’s false-arrest claim was abbreviated,

likely because the parties’ submissions themselves

30 No. 12-1121

were scanty. The parties’ lack of supporting case law is

troubling because, as will soon be clear, this is not the

first time that this court has been presented with a § 1983

false-arrest claim in which the defendant(s) claims

that there was either probable cause or arguable prob-

able cause to arrest the plaintiff for violating 720 ILCS 5/31-

1(a); additionally, there is a considerable body of

Illinois case law interpreting and applying this statute.

To avoid misconstruing Illinois law, we will consider

Cindy’s false-arrest claim in the context of this case law.

Section 5/31-1(a) proscribes a vast array of conduct,

not just attempting to spring someone from custody or

resisting arrest. Specifically, a person commits obstruc-

tion or resistance of a peace officer when, (1) knowing

that one is a peace officer, (2) he or she knowingly

resists or obstructs (3) the officer’s performance of an

authorized act. 720 ILCS 5/31-1(a); see Agnew-Downs, 936

N.E.2d at 174-76. The Illinois Supreme Court has held

that section 5/31-1(a) does “not proscribe mere

argument with a policeman about the validity of an

arrest or other police action, but proscribe[s] only

some physical act which imposes an obstacle which

may impede, hinder, interrupt, prevent[,] or delay the

performance of the officer’s duties, such as going limp,

forcefully resisting arrest[,] or physically aiding a third

party to avoid arrest.” People v. Raby, 240 N.E.2d 595, 599

(Ill. 1968) (internal quotation marks and citation omit-

ted); see People v. Weathington, 411 N.E.2d 862, 863-64 (Ill.

1980); see also Jones v. Clark, 630 F.3d 677, 684-85 (7th

Cir. 2011) (no arguable probable cause to arrest meter

reader because there was no physical act); Shipman v.

No. 12-1121 31

Hamilton, 520 F.3d 775, 779 (7th Cir. 2008) (no probable

cause where nurse never physically resisted officer);

Williams v. Jaglowski, 269 F.3d 778, 781-83 (7th Cir. 2001)

(no arguable probable cause where plaintiff merely

refused to give officers her identifying information). 2

In view of the Raby standard, the inquiry here is whether

at the time of the arrest a reasonable police officer

could have believed that Cindy had undertaken (or

was about to undertake) a physical act which imposed

2

Raby held that both resisting and obstructing a peace

officer require a physical act. 240 N.E.2d at 599 (noting that the

terms “resist” and “obstruct” “are alike in that they imply

some physical act or exertion”). But in a recent decision, the

Illinois Supreme Court held that “obstructing a peace officer

under section 31-1(a) . . . does not necessitate proof of a

physical act, and that providing false information may

constitute obstruction under section 31-1(a) when the misin-

formation interposes an obstacle that impedes or hinders

the officer and is relevant to the performance of his

authorized duties.” People v. Baskerville, 963 N.E.2d 898, 906 (Ill.

2012). In doing so, the court explained that “ ‘resist’ implies

some type of physical exertion in relation to the officer’s

actions,” id. at 905-06, but, “[a]lthough a person may commit

obstruction of a peace officer by means of a physical act, this

type of conduct is neither an essential element of nor the

exclusive means of committing an obstruction,” id. at 905

(emphases added). We express no opinion on the import of

this decision because it was decided almost five years after

the conduct in this case occurred (and thus could not have

been known by a reasonable person in Deputy Sweeney’s

position).

32 No. 12-1121

an obstacle that impeded, hindered, interrupted, pre-

vented, or delayed Sweeney’s performance of his autho-

rized acts.

Though capable of being stated succinctly, the Raby

standard for determining whether section 5/31-1(a)

has been violated has often proved difficult in applica-

tion. Perhaps the most straightforward cases of a

statutory violation are those in which a person physi-

cally scuffles with a police officer performing his or her

official duties or attempts to elude the police. See, e.g.,

People v. Holdman, 383 N.E.2d 155, 159 (Ill. 1978); Raby,

240 N.E.2d at 597, 602; Agnew-Downs, 936 N.E.2d at 176.

At the other end of the spectrum, the cases in which

the statute is not violated, are those involving only

verbal argument, e.g., Jones, 630 F.3d at 684-85; Shipman,

520 F.3d at 779; People v. McCoy, 881 N.E.2d 621, 630-

32 (Ill. App. Ct. 2008), refusal to identify oneself, e.g.,

Williams, 269 F.3d at 781-83; Weathington, 411 N.E.2d at

863-64, and refusal of officers’ request to enter where

they have no right to do so, e.g., People v. Cope, 701 N.E.2d

165, 169-71 (Ill. App. Ct. 1998); People v. Hilgenberg, 585

N.E.2d 180, 183-86 (Ill. App. Ct. 1991).

The greatest difficulty lies in determining the point at

which mere verbal argument or refusal to act becomes

an act of physical resistance or obstruction. See People v.

Ostrowski, 914 N.E.2d 558, 571 (Ill. App. Ct. 2009)

(“Passive acts that impede an officer’s ability to perform

his duties, such as repeatedly refusing an officer’s order

to exit a vehicle, may also violate section 31-1(a).”);

McCoy, 881 N.E.2d at 637 (McDade, J., concurring in

No. 12-1121 33

part and dissenting in part) (“While section 31-1 does

require an individual to comply with a peace officer’s

authorized actions, it does not call for complete and

immediate submission.”). Compare Sroga, 649 F.3d at 608

(“Although merely arguing with a police officer does

not violate the statute, [plaintiff] both times went

beyond argument by refusing to desist from behavior

that was obstructing the efforts of the police to enable

his car to be towed.” (internal citations omitted)), City

of Chicago v. Meyer, 253 N.E.2d 400, 402-03 (Ill. 1969)

(affirming conviction where defendant refused to obey

lawful order of dispersal after protest got out of

hand), People v. Gordon, 948 N.E.2d 282, 287-88 (Ill. App.

Ct. 2011) (affirming conviction where defendant re-

fused lawful dispersal order and instead yelled

profanities and threats at officers, while his cohort, who

had been arrested, attempted to escape), and People v.

Martinez, 717 N.E.2d 535, 538-39 (Ill. App. Ct. 1999) (proba-

ble cause to arrest where arrestee stood between

officer and motorist that officer was attempting to

question and where officer was unable to concentrate

on questioning due to concern over arrestee’s proxim-

ity), with Gonzalez v. City of Elgin, 578 F.3d 526, 538 (7th

Cir. 2009) (“The [district] court thought that probable

cause existed because each of these plaintiffs approached

the defendant officers while those officers were at-

tempting to arrest another of the plaintiffs. But, without

more evidence, there is nothing wrong in itself with

approaching a police officer.”), People v. Kotlinski, 959

N.E.2d 1230, 1238-40 (Ill. App. Ct. 2011) (reversing con-

viction where defendant exited vehicle; officers ordered

34 No. 12-1121

him back into vehicle; defendant complied 21 seconds

later; and total elapsed time defendant was not in

vehicle was 47 seconds), People v. Berardi, 948 N.E.2d 98,

103-04 (Ill. App. Ct. 2011) (reversing conviction where

defendant had refused to leave private office space

in public building and instead had argued that he had

authority to be there; dispute lasted only a short time

and defendant then complied with officer’s request), and

People v. Stoudt, 555 N.E.2d 825, 827-28 (Ill. App. Ct.

1990) (charges dismissed where defendants refused offi-

cer’s dispersal order).

The kerfuffle here falls somewhere in this middle

ground. Cindy did not flee or physically clash with Swee-

ney, but along with arguing and yelling she did not

comply with his order to stop approaching. Reasonable

minds could differ as to whether Cindy’s conduct was

more like that involved in cases like Meyer, 253 N.E.2d

at 402-03 (refusal to disperse), Gordon, 948 N.E.2d at 287-

88 (refusal to disperse and threatening officers while

cohort attempting to escape), and Martinez, 717 N.E.2d

at 538-39 (physical proximity interfered with officer’s

questioning of third party), and therefore violated

section 31-1(a), or whether it was more akin to the

conduct involved in cases like Gonzalez, 578 F.3d at 538

(nothing inherently wrong with approaching officers while

they were attempting to arrest others), Kotlinski, 959

N.E.2d at 1238-40 (incident occurred over less than a

minute), Berardi, 948 N.E.2d at 103-04 (refused officer’s

order to leave office building and kept arguing), or

Stoudt, 555 N.E.2d at 827-28 (refusal to disperse when

ordered), and therefore not a crime.

No. 12-1121 35

But we need not determine whether there was

probable cause, for the simple fact that reasonable

minds could differ as to the meaning of the law leads to

the conclusion that Sweeney is shielded by qualified

immunity. See Hunter, 502 U.S. at 229 (“The qualified

immunity standard ‘gives ample room for mistaken judg-

ments’ by protecting ‘all but the plainly incompetent

or those who knowingly violate the law.’ ” (quoting

Malley, 475 U.S. at 341, 343)); Thayer, ___ F.3d at ___, 2012

WL 6621169, at *6 (“ ‘Qualified immunity protects

police officers who reasonably interpret an unclear stat-

ute.’ ” (brackets omitted) (quoting Mustafa, 442 F.3d at

549)). Once a defendant raises the defense of qualified

immunity, the plaintiff bears the burden of defeating it

either by identifying a closely analogous case or by per-

suading the court that the conduct is so egregious and

unreasonable that, notwithstanding the lack of an analo-

gous decision, no reasonable officer could have thought

he was acting lawfully. E.g., Wheeler v. Lawson, 539 F.3d

629, 639 (7th Cir. 2008). Cindy has done neither. Therefore,

the district court did not err in granting summary judg-

ment to Sweeney on Cindy’s false-arrest and false-impris-

onment claims.

B

Although fatal to the Abbotts’ false-arrest and false-

imprisonment claims, the existence of probable cause (or

arguable probable cause) to arrest does not affect their

excessive-force claims, given that the reasonableness of

an arrest or other seizure under the Fourth Amendment

depends not only on when it is made but also on how it

36 No. 12-1121

is made, see Tennessee v. Garner, 471 U.S. 1, 7-8 (1985).

Put differently, even when an officer has probable cause

to arrest, the Fourth Amendment prohibits him from

employing “ ‘greater force than [is] reasonably necessary

to make the arrest.’ ” Gonzalez, 578 F.3d at 539 (quoting

Lester v. City of Chicago, 830 F.2d 706, 713 (7th Cir. 1987)).

A claim that an officer employed excessive

force in arresting a person is evaluated under the

Fourth Amendment’s objective-reasonableness standard.

Scott v. Harris, 550 U.S. 372, 381 (2007); Brosseau v.

Haugen, 543 U.S. 194, 197 (2004) (per curiam); Graham

v. Connor, 490 U.S. 386, 388, 395 (1989); Garner, 471 U.S. at

7-12. The reasonableness standard is incapable “of

precise definition or mechanical application.” Graham,

490 U.S. at 396 (quoting Bell v. Wolfish, 441 U.S. 520, 559

(1979)). It requires courts to “ ‘balance the nature

and quality of the intrusion on the individual’s Fourth

Amendment interests against the importance of the

governmental interests alleged to justify the intrusion.’ ”

Scott, 550 U.S. at 383 (brackets omitted) (quoting

United States v. Place, 462 U.S. 696, 703 (1983)).

In judging the reasonableness of any particular use of

force, we consider factors such as the severity of the

crime, whether the arrestee poses an immediate threat

to the safety of the officers or others, and whether he or

she is actively resisting arrest or attempting to flee

and evade arrest. Graham, 490 U.S. at 396; Abdullahi v. City

of Madison, 423 F.3d 763, 768 (7th Cir. 2005). The reason-

ableness of the force used depends on the totality of

the facts and circumstances known to the officer at the

No. 12-1121 37

time the force is applied. Garner, 471 U.S. at 8-9; Phillips

v. Cmty. Ins. Corp., 678 F.3d 513, 519 (7th Cir. 2012). It is

an objective inquiry, the dispositive question being

“ ‘whether, in light of the facts and circumstances that

confronted the officer (and not 20/20 hindsight),

the officer behaved in an objectively reasonable man-

ner,’ ” Padula v. Leimbach, 656 F.3d 595, 602 (7th Cir. 2011)

(quoting McAllister v. Price, 615 F.3d 877, 881 (7th Cir.

2010)), irrespective of the officer’s underlying intent or

motivation. See Graham, 490 U.S. at 397; Bell v. Irwin,

321 F.3d 637, 640 (7th Cir. 2003). In answering this ques-

tion, we remain cognizant of “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.” Graham, 490 U.S. at 397. As a

result, we “give considerable leeway to law enforcement

officers’ assessments about the appropriate use of force

in dangerous situations.” Baird v. Renbarger, 576 F.3d

340, 344 (7th Cir. 2009).

Qualified immunity, in effect, affords enhanced defer-

ence to officers’ on-scene judgments about the level of

necessary force. See Saucier, 533 U.S. at 204-05. This is

so because, even if the plaintiffs demonstrate that

excessive force was used, they must further establish

that it was objectively unreasonable for the officer to

believe that the force was lawful—i.e., they must demon-

strate that the right to be free from the particular use

of force under the relevant circumstances was “clearly

established.” See, e.g., al-Kidd, 131 S. Ct. at 2080. A con-

stitutional right is “clearly established” for qualified-

38 No. 12-1121

immunity purposes where “[t]he contours of the right

[are] sufficiently clear that a reasonable official would

understand that what he is doing violates that right.”

Anderson, 483 U.S. at 640; see also United States v. Lanier, 520

U.S. 259, 270 (1997); Estate of Escobedo v. Bender, 600 F.3d

770, 779 (7th Cir. 2010). “In other words, ‘existing prece-

dent must have placed the . . . constitutional question

beyond debate.’ ” Reichle v. Howards, 132 S. Ct. 2088, 2093

(2012) (quoting al-Kidd, 131 S. Ct. at 2083).

Travis and Cindy both limit their excessive-force

claims to Deputy Sweeney’s use of his taser on them.

Before addressing the merits of their contentions on

appeal, it is useful to pin down the quantum of force

exacted by Sweeney’s taser, which represents the

nature and significance of the governmental intrusion on

their Fourth Amendment interests. See Phillips, 678 F.3d

at 521; Deorle v. Rutherford, 272 F.3d 1272, 1279 (9th Cir.

2001). Although Deputy Sweeney used the same device,

a model X26 Taser,3 on both Cindy and Travis, he did

not employ it in the same manner—he used the taser in

dart mode on Cindy and in drivestun mode on Travis. In

dart mode, the X26 uses compressed nitrogen to propel

two “probes” toward the target at somewhere between

160 and 180 feet per second. The probes are aluminum

darts tipped with steel barbs and are connected to the

device by insulated wires, which are about twenty-five

3

For an explanation of the origin of the term “Taser,” see, for

example, Cockrell v. City of Cincinnati, 468 F. App’x 491, 492

n.3 (6th Cir. 2012).

No. 12-1121 39

feet in length. Once the probes strike the target, the

officer pulls the trigger and the device delivers 50,000

volts of electric current, but the amount of voltage

that enters the target’s body is closer to 1200 volts. These

high-voltage electric waves “overpower the normal

electrical signals within the [target’s] nerve fibers”; they

“override the central nervous system[ ] and take[ ] direct

control of the skeletal muscles.” “The impact is as

powerful as it is swift. The electrical impulse instantly

overrides the victim’s central nervous system, paralyzing

the muscles throughout the body, rendering the target

limp and helpless.” Bryan v. MacPherson, 630 F.3d 805,

824 (9th Cir. 2010) (footnotes omitted) (same model); see

also Draper v. Reynolds, 369 F.3d 1270, 1273 n.3 (11th

Cir. 2004) (similar description of the model M26 Taser).

In drivestun mode, however, the officer does not fire

probes at the target but instead presses the device’s

electrodes directly to the target’s body and pulls the

trigger to deliver the electric current. When utilized in

this manner, the X26 does not override the target’s

central nervous system. See Brooks v. City of Seattle, 661

F.3d 433, 443 (9th Cir. 2011) (en banc) (same model), cert.

denied sub nom. Daman v. Brooks, 132 S. Ct. 2681, and

cert. denied, 132 S. Ct. 2682 (2012). Rather, it “becomes

a pain compliance tool with limited threat reduction.”

This court has acknowledged that “one need not have

personally endured a taser jolt to know the pain that

must accompany it,” Lewis v. Downey, 581 F.3d 467, 475

(7th Cir. 2009), and several of our sister circuits have

likewise recognized the intense pain inflicted by a taser,

see, e.g., Bryan, 630 F.3d at 824 (“The tasered person

40 No. 12-1121

also experiences an excruciating pain that radiates

throughout the body.”); Hickey v. Reeder, 12 F.3d 754,

757 (8th Cir. 1993) (“[A] stun gun inflicts a painful and

frightening blow [that] temporarily paralyzes the large

muscles of the body, rendering the victim helpless.”); Orem

v. Rephann, 523 F.3d 442, 448 (4th Cir. 2008) (same). Ac-

cordingly, we have held that, even though it is gen-

erally nonlethal, the use of a taser “is more than a de

minimis application of force,” Lewis, 581 F.3d at 475, but

we have also acknowledged that the use of a taser, like

the use of pepper spray or pain-compliance techniques,

generally does not constitute as much force as so-called

impact weapons, such as baton launchers and beanbag

projectiles, Phillips, 678 F.3d at 521. The use of a taser,

therefore, falls somewhere in the middle of the nonlethal-

force spectrum. See Bryan, 630 F.3d at 826 (describing

the X26 in dart mode as “an ‘intermediate or medium,

though not insignificant, quantum of force’ ” (citation

omitted)). Indeed, the Sangamon County Taser Policies

and Procedures and the Use of Force Scale place tasers

at an intermediate level of force, on par with pepper

spray. Cf. Tracy v. Freshwater, 623 F.3d 90, 98 (2d Cir.

2010) (“[I]nfliction of pepper spray on an arrestee has a

variety of incapacitating and painful effects, and, as

such, its use constitutes a significant degree of force.”

(internal citation omitted)). That said, when used in dart

mode, the X26 “intrudes upon the victim’s physiological

functions and physical integrity in a way that other non-

lethal uses of force do not. While pepper spray causes

an intense pain and acts upon the target’s physiology,

the effects of the X26 are not limited to the target’s eyes

No. 12-1121 41

or respiratory system.” Bryan, 630 F.3d at 825; cf. Oliver

v. Fiorino, 586 F.3d 898, 903-04 (11th Cir. 2009) (after

being tased at least eight times over a two-minute

period, decedent “died as a result of ‘ventricular

dysrhythmia in conjunction with Rhabdomyolisis’ as

a result of ‘being struck by a Taser’ ”).

1

Deputy Sweeney argues, and the district court held,

that he is entitled to qualified immunity on Travis’s

excessive-force claim because he did not violate clearly

established law. Alternatively, Sweeney contends that

use of the taser under the circumstances was reasonable

so there was no constitutional violation in the first

place. We need not examine whether Sweeney’s use of

the taser on Travis was reasonable because we agree

with the district court that use of the taser under these

circumstances did not violate clearly established law.

The facts viewed in Travis’s favor appear to show that,

as Sweeney was backing out of the driveway, Travis

was fidgeting around in the backseat and successfully

maneuvered his cuffed hands from behind his back to

the front of his body. In his submissions to both the

district court and this court, Travis does not dispute

that Sweeney’s squad car lacked a partition between the

front and back seats (though Travis testified otherwise

in his deposition). Travis also does not dispute that he

was “going nuts” in the backseat of the car when

Sweeney first encountered Cindy, though he does deny

42 No. 12-1121

unfastening his seatbelt and reaching for the door (but

how he maneuvered his cuffed hands around his body

with a seatbelt on is a mystery). After finishing with

Cindy, Travis continues, Sweeney opened the rear,

passenger-side door and got on top of Travis, “dropped

an elbow on [Travis’s] throat,” and began applying the

taser to Travis’s body in drivestun mode. And Travis

claims further that Sweeney pulled him from the car,

threw him on the ground, gave him “the knee bomb,”

and tased him three more times on his back. Travis

denies that he was acting wild when Sweeney came to

deal with him, but he admits that he “was trying to

fight with” Sweeney in the back of the police cruiser and

at one point was “out powering” the deputy. Neither

Travis nor Sweeney can recall the number of times the

taser was applied to Travis, but they seem to agree

that there were multiple applications of short duration

(Travis said “little second bursts”).

On appeal, Travis does not challenge Sweeney’s initial

use of the taser, arguing instead that Sweeney violated

clearly established law in tasing him multiple times

after he had been subdued by the first tasing. 4 Travis

4

Travis’s concession that the first tasing did not violate

clearly established law helps to resolve an ambiguity in his

deposition testimony. It is possible to view Travis’s testimony

to convey that the only fight he put up was to defend

himself against excessive force. And if that were so, our case

law holds that use of unnecessary force on one who resists

only that force can constitute excessive force. See Morfin v.

(continued...)

No. 12-1121 43

claims that the subsequent taser applications were exces-

sive because he had been subdued by the first tasing and

he was already handcuffed and in custody. See, e.g., Dye

v. Wargo, 253 F.3d 296, 298 (7th Cir. 2001). He marshals

three pepper-spray cases from other circuits to support

his position, but while those cases support the general

proposition that it is excessive to use such force on a

subdued suspect, the arrestees in those cases, unlike

here, were actually subdued. See Tracy, 623 F.3d at 98-99

(jury could find application of pepper spray to be unrea-

sonable where plaintiff claimed he had already been

handcuffed and was not resisting); Henderson v. Munn, 439

F.3d 497, 502-03 (8th Cir. 2006) (officer not entitled to

qualified immunity at summary judgment where jury

could find that he had applied pepper spray to

nonresisting plaintiff’s face while plaintiff was lying

on his stomach and handcuffed with his hands behind

his back); Vinyard v. Wilson, 311 F.3d 1340, 1347-49 (11th

Cir. 2002) (officer not entitled to summary judgment

where he had pulled over and applied pepper spray

while arrestee was yelling and arrestee had been

arrested for minor offenses, was handcuffed and secured

4

(...continued)

City of E. Chicago, 349 F.3d 989, 1005 (7th Cir. 2003) (reversing

summary judgment for officers where “[i]t was only after

the officers took [plaintiff] to the floor that [he] crossed his

arms on his chest to prevent the officers from handcuffing

him”). But as Travis has not challenged the initial use of the

taser on him, we do not view his testimony about fighting

with Sweeney to be so limited.

44 No. 12-1121

in backseat of police car, posed no threat to the officer

or herself, and there was a partition separating her

from the officer). Unlike the arrestees in these three

cases, even Travis admits that he continued fighting with

Sweeney after the first application of the taser, so he

was not subdued. And even though he was handcuffed,

he had moved his hands to the front of his body, which

allowed him to overpower Sweeney at times.

Courts generally hold that the use of a taser against an

actively resisting suspect either does not violate clearly

established law or is constitutionally reasonable. See

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

(affirming defense verdict where defendant used taser

three times on plaintiff when she blocked the doorway

to her son’s bedroom after several officers had entered

and defendant heard a commotion in the bedroom and

believed officers needed help; the second and third

tasings were deployed because plaintiff was kicking

and flailing and continuing assaultive behavior as defen-

dant was arresting her); United States v. Norris, 640 F.3d

295, 303 (7th Cir. 2011) (use of taser on defendant

was reasonable where defendant had “displayed an

unwillingness to accede to reasonable police com-

mands, and his actions suggested an intent to use

violence to fend off further police action”); Forrest v.

Prine, 620 F.3d 739, 745-46 (7th Cir. 2010) (affirming

summary judgment for officer on plaintiff’s Fourteenth

Amendment excessive-force claim, where plaintiff was

a large man in a confined area who was intoxicated,

defiant, belligerent, was clenching his fists and yelling

obscenities, and had attacked another officer earlier

No. 12-1121 45

that evening); see also Hagans v. Franklin Cnty. Sheriff’s

Office, 695 F.3d 505, 509-10 (6th Cir. 2012); Marquez v.

City of Phoenix, 693 F.3d 1167, 1175 (9th Cir. 2012); Hoyt

v. Cooks, 672 F.3d 972, 979-80 (11th Cir. 2012); McKenney v.

Harrison, 635 F.3d 354, 360 (8th Cir. 2011); Zivojinovich v.

Barner, 525 F.3d 1059, 1073 (11th Cir. 2008); Draper v.

Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004); Hinton v.

City of Elwood, Kan., 997 F.2d 774, 781 (10th Cir. 1993).

Insofar as Travis continued to resist after the first tasing,

Deputy Sweeney did not violate clearly established law

by using the taser in drivestun mode several more

times until Travis was subdued.

Furthermore, although Travis claims that Sweeney

pulled him from the car, threw him on the ground,

gave him “the knee bomb,” and tased him three more

times on his back, he does not contend that he had

ceased resisting or fighting with Sweeney at that point.

Indeed, it is undisputed that Sweeney used the taser

until Travis stopped fighting but did not use it there-

after, suggesting that Sweeney used no more force than

was necessary to gain control of the actively resisting

Travis. And even assuming that Travis had ceased

resisting prior to these last three tasings, Deputy Sweeney

reasonably could have believed that Travis had not

ceased resisting. See Brooks, 653 F.3d at 487 (“[C]ontrolling

law would not have communicated to a reasonable

officer the illegality of applying pepper spray to an

arrestee who has ceased active, physical resistance for

a couple of seconds but has not submitted to the

officer’s authority, has not been taken into custody and

still arguably could pose a threat of flight or further

46 No. 12-1121

resistance.”); see also Johnson v. Scott, 576 F.3d 658, 660

(7th Cir. 2009).

Thus, even viewing the facts in a light favorable to

Travis,5 Deputy Sweeney did not violate clearly estab-

lished law when he used his taser, so he is entitled to

qualified immunity.

5

Deputy Sweeney’s expert, Travis Dalby, testified that, taking

Travis’s deposition at face value, Sweeney’s use of the taser was

not warranted. When asked about this at oral argument, Swee-

ney’s counsel responded that the court cannot look just at

Travis’s testimony but must view all of the facts. While it is

true that summary judgment involves examination of all the

parties’ evidence, Fed. R. Civ. P. 56(c)(1), Sweeney misses

the point that on summary judgment any conflicts are

resolved against the moving party, so Dalby’s comment

might have been used to resist summary judgment for Swee-

ney. That said, Travis has never identified this portion of

Dalby’s testimony in any of his submissions to the district

court or to this court, see FTC v. Bay Area Bus. Council, Inc., 423

F.3d 627, 634 (7th Cir. 2005) (limiting review to adequately

supported facts in FTC’s Local Rule 56.1 statement), and

Travis has not given any reason as to why we should exer-

cise our discretion to look beyond the properly submitted

materials and consider other matters in the record, see Fed.

R. Civ. P. 56(c)(3) (“The court need consider only the cited

materials, but it may consider other materials in the record.”). In

point of fact, after oral argument Sweeney’s counsel sub-

mitted a letter to the court pursuant to Appellate Rule 28(j)

addressing this very issue, and Travis never submitted any-

thing to the contrary.

No. 12-1121 47

2

Cindy’s excessive-force claim again presents a closer

question. Cindy, like Travis, does not challenge the first

tasing on appeal. With regard to the second tasing,

Deputy Sweeney contends that he did not violate

clearly established law because Cindy failed to follow

his orders to roll over and then attempted to stand up.

But there is a factual dispute over whether Cindy at-

tempted to stand up or whether she did not move, and

we must view the facts in her favor. The district court

acknowledged that Cindy testified she was unable to

move, but it concluded that this was irrelevant because

the reasonableness of the force used is determined from

the officer’s perspective and there was no dispute that

Cindy failed to comply with Sweeney’s command.

(i)

The facts viewed in a light favorable to Cindy show that

Cindy became excited and upset when Sweeney backed

into her car. She began screaming about her car and

walking toward it to inspect the damage. Deputy

Sweeney interpreted her actions, perhaps unreasonably

(as previously noted), as her attempting to help Travis

escape, so he ordered her to stop but she kept walking.

As she was walking toward her vehicle she was, without

warning, shot with a taser in dart mode and fell to the

ground in immense pain. After she was on the ground,

Sweeney came closer and shouted orders for her to

turn over onto her stomach, but she did not comply

and did not move, so he zapped her again and then he

48 No. 12-1121

turned her over onto her stomach. The record is unclear

as to the duration of each tasing and the time between

the first and the second jolts.6

Because Cindy does not challenge the first tasing, we

assume without deciding that it was reasonable under

the Fourth Amendment or at least that a reasonable

officer could have believed that it was reasonable. But

the fact that an initial use of force may have been

6

The record contains an exhibit, attached to Sweeney’s dep-

osition transcript, that appears to be a printout of the date,

times, and duration of each trigger pull for an X26. This

exhibit indicates that on June 25, 2007, an X26 with serial

number X00-093461 was fired seven times between 12:17:40

and 12:19:14. Assuming that this is an accurate and complete

printout for the taser that Sweeney used on Cindy and Travis,

it indicates that Cindy was tased at 12:17:40 for 3 seconds

and at 12:17:50 for 6 seconds and that Travis was tased five

times between 12:18:00 and 12:19:14 for 5 seconds each time.

This, however, is mere conjecture because the record contains

no foundational evidence linking this exhibit to the taser

used by Sweeney or verifying that it is an accurate and

complete record. During Sweeney’s deposition, the Abbotts’

counsel asked him to explain this exhibit because counsel

did not know what it was; Sweeney responded, “I do not

[know] either.” And Sweeney’s expert, Travis Dalby, was

never asked about this exhibit. Perhaps this is why the parties

do not mention the exhibit in their submissions to this court.

Indeed, at oral argument, Sweeney’s counsel responded to

a question about the timing set forth in this exhibit by saying

that there was nothing in the record about the timing of

the tasings.

No. 12-1121 49

justified does not mean that all subsequent uses of

that force were similarly justified. See Phillips, 678 F.3d at

525-26. Rather, “[f]orce is reasonable only when exer-

cised in proportion to the threat posed, and as the threat

changes, so too should the degree of force. . . . It’s the

totality of the circumstances, not the first forcible act, that

determines objective reasonableness.” Cyrus v. Town of

Mukwonago, 624 F.3d 856, 863 (7th Cir. 2010) (citations

omitted).

The totality of the circumstances, when viewed in a

light favorable to Cindy, demonstrates that Sweeney’s

second application of the taser could be determined by a

jury to have been unreasonable. Cindy was shot in dart

mode both times, which caused her to lose control of

her skeletal muscles, a very significant intrusion on her

Fourth Amendment interests. See Bryan, 630 F.3d at 826;

Lewis, 581 F.3d at 475-76; see also Cavanaugh v. Woods Cross

City, 625 F.3d 661, 665 (10th Cir. 2010) (describing taser

fired in dart mode as a “quite severe” intrusion on

Fourth Amendment interests). And none of the three

Graham factors provide a justification for the second

tasing. As we explained earlier, Sweeney had arguable

probable cause to believe that Cindy had obstructed

a peace officer, a Class A misdemeanor, see 720 ILCS 5/31-

1(a), which is not a serious or violent crime. See

Cyrus, 624 F.3d at 863 & n.7 (criminal trespass, entry onto

construction site, or resistance or obstruction of peace

officer, were all misdemeanors under Wisconsin law

and thus minor); cf. Casey v. City of Fed. Heights, 509

F.3d 1278, 1281 (10th Cir. 2007) (lesser degree of force

reasonable when offense is minor and not committed

50 No. 12-1121

violently). Moreover, there is absolutely no evidence

that Cindy posed a threat to Sweeney, herself, or anyone

else, especially after the first tasing when she was lying

on her back on the ground and not moving. See Cyrus,

624 F.3d at 863. And although she did not comply

with Sweeney’s order to turn over onto her stomach

after the first tasing, she did not move and at most exhib-

ited passive noncompliance and not active resistance.

See Phillips, 678 F.3d at 527 (“Permitting substantial escala-

tion 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.”); cf. Headwaters Forest Def. v. County

of Humboldt, 276 F.3d 1125, 1130 (9th Cir. 2002) (“[T]he

use of pepper spray ‘may be reasonable as a general

policy to bring an arrestee under control, but in a situa-

tion in which an arrestee surrenders and is rendered

helpless, any reasonable officer would know that a con-

tinued use of the weapon or a refusal without cause

to alleviate its harmful effects constitutes excessive

force.’ ” (emphasis and citation omitted)).

In short, there are no countervailing governmental

interests that come close to off-setting the substantial

intrusion on Cindy’s Fourth Amendment interests

exacted by the second tasing. Indeed, courts generally

hold that it is unreasonable for officers to deploy a taser

against a misdemeanant who is not actively resisting

arrest. See Cyrus, 624 F.3d at 862-63 (jury reasonably

could find the use of taser to be excessive: Cyrus’s disobe-

dience of officer’s commands could be interpreted in

several ways—e.g., a jury could conclude that his barrel-

No. 12-1121 51

roll down the driveway was an involuntary response

to being tased twice; Cyrus had committed at most a

misdemeanor under Wisconsin law; and there was abso-

lutely no evidence that Cyrus had violently resisted

the officer’s attempts to handcuff him); Lewis, 581 F.3d

at 473-79 (reversing summary judgment for officer

on presentencing detainee’s Fourteenth Amendment

excessive-force claim, evaluated under Eighth Amend-

ment standard, where detainee “was prone on his bed,

weakened, and docile” when ordered to get out of bed

and when he turned toward officers to explain that he

was too weak to get up he was shot with taser

without warning); Schneider v. Love, No. 09 C 3105, 2011

WL 635582, at *7 (N.D. Ill. Feb. 10, 2011) (“Although this

is a close case, on the facts assumed to be true, it was

unreasonable to continue to hit, kick, and tase plaintiff

after the first tasing. It should have taken only seconds

to realize plaintiff was subdued. It will be a fact

question for the jury as to when defendant should have

recognized plaintiff was subdued. Further tasing or

punching after that point would not be reasonable.”);

see also Austin v. Redford Twp. Police Dep’t, 690 F.3d 490, 496-

98 (6th Cir. 2012); Shekleton v. Eichenberger, 677 F.3d 361,

366 (8th Cir. 2012); Mattos v. Agarano, 661 F.3d 433, 448-52

(9th Cir. 2011), cert. denied, 132 S. Ct. 2682, and cert. denied,

132 S. Ct. 2684 (2012); Brooks v. City of Seattle, 661 F.3d at

443-46; Fils v. City of Aventura, 647 F.3d 1272, 1288-90 (11th

Cir. 2011); Bryan, 630 F.3d at 826-32; Cavanaugh, 625 F.3d at

665-66; Oliver, 586 F.3d at 905-07; Brown v. City of Golden

Valley, 574 F.3d 491, 496-98 (8th Cir. 2009); Parker v. Gerrish,

547 F.3d 1, 9-11 (1st Cir. 2008); Casey, 509 F.3d at 1282-83.

52 No. 12-1121

We are mindful that Deputy Sweeney acted in a

rapidly unfolding situation and that officers are to be

given leeway under those circumstances. But Sweeney

attempts to transform the circumstances into much

more than they really were. Although he reasonably

believed that Travis was attempting to escape, it is undis-

puted that Travis could not open the car door from

the inside. And had he escaped, it is unlikely he would

have gone far because Sergeant Lawley or the animal

control officers could have intercepted him—this is not

the case of a single officer attempting to control and

detain multiple suspects. Furthermore, Travis was not a

violent criminal who had been arrested for a violent

crime; rather, he simply had been acting foolishly,

albeit criminally. Because the Graham balance tips so

heavily in Cindy’s favor, we do not think that the

rapidly unfolding nature of these relatively innocuous

events tips the balance the other way. Cf. Deorle, 272

F.3d at 1281 (“A desire to resolve quickly a potentially

dangerous situation is not the type of governmental

interest that, standing alone, justifies the use of force

that may cause serious injury.”); accord Phillips, 678 F.3d

at 525.

(ii)

Although Cindy has made out a constitutional violation,

she must also show that the right that Sweeney violated

was clearly established on June 25, 2007, the date of the

incident. To determine whether a right is clearly estab-

lished we look to controlling precedent from both the

No. 12-1121 53

Supreme Court and this circuit, and if there is no

such precedent we cast a wider net and examine “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.’ ”

Phillips, 678 F.3d at 528 (quoting Estate of Escobedo, 600

F.3d at 781); see Pearson, 555 U.S. at 244 (officers were

entitled to rely on cases from other circuits even

though their own circuit had not yet addressed the

issue). Importantly, the right must be clearly established

in a particularized sense, rather than in an abstract or

general sense. Brosseau, 543 U.S. at 198; Anderson, 483

U.S. at 639-40. “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.’ ”

Phillips, 678 F.3d at 528 (quoting Hope v. Pelzer, 536 U.S.

730, 741 (2002)); see, e.g., McDonald v. Haskins, 966 F.2d

292, 294 (7th Cir. 1992).

The Supreme Court has not addressed an excessive-

force claim based on the use of a taser and the most

analogous case from this circuit is Cyrus, which was

decided in 2010 and did not consider qualified immu-

nity. And although we cited several cases from

other circuits holding that officers had used excessive

force in deploying tasers under circumstances similar

to those here—a misdemeanant who is not actively re-

sisting—all of those cases were decided after June 25,

2007. The Ninth Circuit has held that the absence of any

case law involving tasers means that officers are entitled

54 No. 12-1121

to qualified immunity. See, e.g., Mattos, 661 F.3d at 452.

But, as the Sixth Circuit has explained, just as defining

a right too broadly may defeat the purpose of qualified

immunity, defining a right too narrowly may defeat the

purpose of § 1983. Hagans, 695 F.3d at 508-09. Moreover,

we have explained that “[e]very time the police employ

a new 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.” Phillips, 678 F.3d at 528 (citing Sallenger v.

Oakes, 473 F.3d 731, 741-42 (7th Cir. 2007)).

Turning to the present case, we conclude that it was

clearly established on June 25, 2007, that it is unlawful to

deploy a taser in dart mode against a nonviolent

misdemeanant who had just been tased in dart mode

and made no movement when, after the first tasing, the

officer instructed her to turn over. Prior to 2007, it

was well-established in this circuit that police officers

could not use significant force on nonresisting or

passively resisting suspects. See, e.g., Morfin v. City of

E. Chicago, 349 F.3d 989, 1005 (7th Cir. 2003) (jury could

find that officers used excessive force in grabbing

plaintiff and throwing him to the floor, where plaintiff

had not been a threat to officers, was docile and coopera-

tive, and did not resist in anyway until the officers

applied unnecessary force); Payne v. Pauley, 337 F.3d 767,

779 (7th Cir. 2003) (not objectively reasonable for officer

to apply overly tight handcuffs, where arrestee was

not threatening to harm the police officer or anyone else

at the scene, was not resisting or evading arrest, was

not attempting to flee, and was charged with . . . minor

No. 12-1121 55

offenses”); Clash v. Beatty, 77 F.3d 1045, 1048 (7th Cir.

1996) (“It is clear . . . that police officers do not have the

right to shove, push, or otherwise assault innocent citizens

without any provocation whatsoever.”); Rambo v. Daley, 68

F.3d 203, 207 (7th Cir. 1995) (“The Constitution clearly does

not allow police officers to force a handcuffed, passive

suspect into a squad car by breaking his ribs.”). Rather,

only a minimal amount of force may be used on such

arrestees. See Smith v. Ball State Univ., 295 F.3d 763, 766, 770

(7th Cir. 2002) (not excessive force for officers to use

“straight arm bar” technique to remove nonresponsive

driver from automobile, where, although driver was not

actively resisting, officers reasonably believed him to be

intoxicated and behind the wheel of a running vehicle); see

also McAllister, 615 F.3d at 885-86 (distinguishing Smith).

It is true that Cindy had already been tased once when

the second taser jolt was delivered, and because she

does not challenge the initial jolt we assume without

deciding that the first tasing did not violate clearly estab-

lished law. But even so, it was well-established in 2007

that police officers cannot continue to use force once a

suspect is subdued. See, e.g., Dye, 253 F.3d at 298

(“shooting a disarmed and passive suspect is a clear

example of excessive force”); Henderson, 439 F.3d at 502-

03; Vinyard, 311 F.3d at 1347-49; cf. Ellis v. Wynalda, 999

F.2d 243, 247 (7th Cir. 1993) (“When an officer faces a

situation in which he could justifiably shoot, he does

not retain the right to shoot at any time thereafter

with impunity.”). And viewing the facts in Cindy’s

favor, there is no question that she was in fact subdued

56 No. 12-1121

by the first tasing—she immediately fell to the ground

and convulsed but made no movement after the first

tasing ended. Cf. Johnson, 576 F.3d at 660-61 (use of

police dog to subdue purportedly surrendering suspect

was objectively reasonable because it would not have

been clear to reasonable officer that suspect’s surrender

was genuine). In contrast to the situation posed by

Travis, no reasonable officer could have understood

Cindy’s conduct after the first tasing, as she describes it,

to be active physical resistance. Cf. Brooks, 653 F.3d at 487.

To be sure, an officer will not be held liable if the cir-

cumstances under which the force was used evolved so

rapidly that a reasonable officer would not have had

time to recalibrate the reasonable quantum of force. See,

e.g., Berube v. Conley, 506 F.3d 79, 85 (1st Cir. 2007) (officer

entitled to qualified immunity where on a dark, rainy

night she had “fired a fusillade in an emergency situa-

tion” at a large man running toward her with a

hammer raised in the air, and she had continued firing

after the man went to the ground, but the entire incident

lasted ten seconds); Hathaway v. Bazany, 507 F.3d 312, 321-

22 (5th Cir. 2007) (objectively reasonable for officer

to respond with deadly force in limited time avail-

able where vehicle he had stopped began accelerating

toward officer as he approached vehicle on foot). But this

is not such a case. Even Deputy Sweeney’s testimony

indicates that, after the first tasing ended, he approached

Cindy, ordered her to roll over, and then tased her

the second time because she did not roll over. Put differ-

ently, he did not squeeze the taser trigger a second

time because events unfolded so rapidly that he was

No. 12-1121 57

unable to appreciate that Cindy was subdued; he tased

her the second time because she did not comply with his

command to roll over. Cf. Brockington v. Boykins, 637

F.3d 503, 507 (4th Cir. 2011) (plaintiff stated plausible

excessive-force claim based on officer having shot him

multiple times after he had been incapacitated by first

shot, where there was time for officer to realize that

plaintiff had already been subdued by first shot).

Finally, several post-2007 decisions lend further

support to our conclusion that, on the facts viewed in

Cindy’s favor, Deputy Sweeney violated clearly

established law in applying the second taser jolt. In 2009,

we found that it had been clearly established in 2006

that a taser could not be used against a prone, weakened,

and docile prisoner who had been told to rise one time,

had not been warned that failure to comply would result

in use of a taser, and had been zapped before having

a chance to comply with the order to rise. Lewis, 581 F.3d

at 479. If it was clearly unlawful in 2006 to use a taser on

a moving prisoner who had been ordered to rise, then

it surely was clearly unlawful a year later to use a taser

on a noncompliant, nonmoving misdemeanor arrestee

who had already been immobilized by an initial taser

jolt. Cf. Bell v. Wolfish, 441 U.S. 520, 544-48 (1979) (dis-

cussing limitations on convicted prisoners’ and pretrial

detainees’ constitutional rights). And more recently, we

held that it was clearly established in 2005 that officers

could not repeatedly use an impact weapon to beat

into submission a person who was not resisting or was

merely passively resisting officers’ orders. Phillips, 678

F.3d at 528-29. Additionally, since 2007, many of our

58 No. 12-1121

sister circuits have found the use of a taser against nonvio-

lent, nonresisting misdemeanants to violate clearly estab-

lished law, the absence of taser case law notwithstand-

ing. See Austin, 690 F.3d at 498-99; Shekleton, 677 F.3d at

367; Fils, 647 F.3d at 1292; Oliver, 586 F.3d at 907-08;

Brown, 574 F.3d at 499; Casey, 509 F.3d at 1286.

In short, a genuine issue of material fact exists that

must be resolved by a jury, so summary judgment on

this claim was improper. Although the issue of qualified

immunity ordinarily should be resolved “ ‘at the earliest

possible stage in litigation,’ ” Saucier, 533 U.S. at 201

(citation omitted), this is one of the unusual cases

in which a definitive decision on the issue cannot be

had without further factual development, see, e.g., Estate

of Escobedo v. Martin, ___ F.3d ___, ___, No. 11-2426,

2012 WL 6199155, at *6 n.4, *13-17 (7th Cir. Dec. 13, 2012);

Warlick v. Cross, 969 F.2d 303, 305-10 (7th Cir. 1992).

III

For the foregoing reasons, we A FFIRM the district court’s

entry of judgment in Deputy Sweeney’s favor on all

of Travis Abbott’s claims and on Cindy Abbott’s

false-arrest and false-imprisonment claims, but we

V ACATE the judgment on Cindy’s excessive-force claim

and R EMAND for further proceedings.

1-29-13