VICTOR R. MCNAIR AND TRÉ K. MCNAIR v. SEAN COFFEY

CUDAHY, Circuit Judge,

concurring.

As the majority points out, Saucier v. Katz, 533 U.S. 194 , 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001), is a template that ill-fits the present case since one of the principal goals of Saucier is to avoid trials of constitutional claims barred by qualified immunity. Here the trial has already occurred but becomes a virtual nullity under the rules prescribed by Saucier as best as they can be implemented in this topsy-turvy situation. I am none too sure what Saucier requires here: whether a finding of qualified immunity will do or whether one may look behind the jury verdict, which Officer Coffey does not contest, to exculpate him entirely. Apart from the unappealed verdict, a finding that he did not violate the Constitution seems quite supportable. In that connection, Judge Coffey has performed a service by attempting to reconstruct a detailed scenario of Officer Coffey’s activities during the evening in question and by offering an interpretation of events from Officer Coffey’s perspective.

I am troubled, however, by what seem to me to be ambiguities in the majority’s treatment of displays (as opposed to the actual use) of force in relation to the strictures of the Fourth Amendment. Although the majority eventually concedes that “we do not foreclose the possibility that the circumstances of an arrest could become ‘unreasonable’ without the application of physical force,” Opinion, at 468, it elsewhere follows an unbroken course of minimizing this possibility. For example, at one point it states, “One must be careful of equating fright-inducing aspects with ‘unreasonableness.’ ” Opinion, at 466. This seems to me to be carrying the requirement of objectivity to an extreme. The mental state of the terrorized is at least one measure of the objective reasonableness of the terror applied. Physical injury is not a necessary element of a claim for excessive force. But the absence of physical injury is an important circumstance in the totality of the circumstances measuring the reasonableness of the force displayed.

In California v. Hodari D., 499 U.S. 621, 626 , 111 S.Ct. 1547 , 113 L.Ed.2d 690 (1991), the Court held that an arrest requires either the use of physical force, or the submission to an assertion of authority. Thus, there can be no seizure unless the person seized actually yields to a show of authority. See id. Hodari D. clarifies a line of Fourth Amendment cases that held that a seizure occurs when an officer restrains a suspect by a show of authority. See generally Graham v. Connor, 490 U.S. *469 386, 395, n. 10 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989) (a “ seizure’ triggering the Fourth Amendment’s protections occurs only when government actors have, ‘by means of physical force or show of authority, ... in some way restrained the liberty of a citizen.’”) (citing Terry v. Ohio, 392 U.S. 1, 19, n. 16 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1986)); INS v. Delgado, 466 U.S. 210, 215 , 104 S.Ct. 1758 , 80 L.Ed.2d 247 (1984) (same); United States v. Mendenhall, 446 U.S. 544, 553 , 100 S.Ct. 1870 , 64 L.Ed.2d 497 (1980) (adhering to “the view that a person is ‘seized’ only when, by means of physical force or a show of authority, his freedom is restrained”). Hodari D. requires, for the triggering of Fourth Amendment protection, that the suspect actually submit to the show of authority. Clearly, these cases make no distinction, as a matter of principle, between the use of physical force and its display, provided that the suspect submits.

Seizures of persons must satisfy the reasonableness standard of the Fourth Amendment. See Graham v. Connor, 490 U.S. 386, 395 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989) (holding that “all claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.”). In determining whether a seizure is reasonable, the court must engage in an objective inquiry. See id. at 397 , 109 S.Ct. 1865 (“[T]he question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.”). The absence of physical injury is clearly relevant to the determination whether the use or display of force is constitutionally excessive. See Gumz v. Morrissette, 772 F.2d 1395, 1401 (7th Cir.1985) (noting that “the presence of some physical evidence is certainly relevant” to the determination whether the use of force was constitutionally excessive), overruled on other grounds by Lester v. City of Chicago, 830 F.2d 706 (7th Cir.1987); Sharrar v. Felsing, 128 F.3d 810 (3d Cir.1997) (extending Gwmz’s rationale to an excessive display of force claim).

Sharrar , which involved perhaps the most frightening show of force of any reported case, still does not support the proposition that there can be no excessive force without physical injury. In Sharrar , the plaintiffs were arrested by a SWAT team which displayed a threat of force and used extreme tactics (that did not result in physical injury to three of the victims). See 128 F.3d at 821 . Analyzing the case under Graham’s objective reasonableness standard, the majority held that the extreme measures did not rise to the level of a constitutional violation. Id. The Sharrar court, however, did note that the case was a close one, implying, of course, that a contrary outcome was not foreclosed. See id. at 822 . 1 And, this observation is certainly incompatible with any suggestion that a display of force that does not result in physical injury could in principle never violate the Fourth Amendment. Further, the Sharrar court explicitly stated that it did not agree that “the absence of physical injury necessarily signifies that the force [used] has not been excessive.” Id. And the court noted that, “Although there are decisions of this court that found the use of force excessive, notwithstanding the absence of extensive physical contact and permanent physical injury, the circum *470 stances here are distinguishable.” Id. at 821 . Therefore, it would be incorrect to dismiss the present circumstances entirely on the basis that they merely involve a display of force without physical impact.

In any event, as I have suggested, it is not clear exactly how Saucier should be applied to the present facts but the plausible interpretation employed here points to affirmance of the judgment.

. The dissent in Sharrar disagreed only with this holding, arguing that if the case went to trial, a jury could find that the use of the SWAT team was objectively unreasonable. See 128 F.3d at 832-33 .