Strand v. Minchuk, No. 18-1514 (7th Cir. 2018)
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Strand, a truck driver, stopped to take a mandatory drug screening test and received permission to park his rig outside a nearby Planned Parenthood office. Officer Minchuk, working security at Planned Parenthood, in uniform, reported to work, noticed the truck, and wrote parking tickets. Strand found the tickets and tried to explain that he did not see any no‐parking signs and had received permission. Minchuk allegedly solicited a bribe. Strand used his cell phone to take pictures to contest the tickets. Minchuk ordered Strand to leave. Strand said he would leave when he finished. Minchuk admonished, “I told you to get the f*** outta here,” and slapped Strand’s cell phone to the ground. Minchuk demanded Strand’s identification; Strand refused. Minchuk grabbed Strand, resulting in Strand’s shirt tearing off his body. Minchuk attempted to push Strand, with Strand holding Minchuk’s arm. Both fell to the ground. Strand punched Minchuk in the face and placed his hands on Minchuk’s throat. Minchuk testified that this caused him to fear for his life. Strand then stood up, backed away, put his hands up, and said, “I surrender, I’m done.” Minchuk removed his gun and fired a shot, striking Strand in the abdomen. Strand was convicted of committing felony battery of a police officer. Strand sued, 42 U.S.C. 1983. The Seventh Circuit affirmed the denial of Minchuk’s motion for qualified immunity. A material question of fact exists as to whether Strand continued to pose a threat at the exact moment Minchuk fired the shot.
The court issued a subsequent related opinion or order on December 6, 2018.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 18 1514 CRAIG STRAND, Plaintiff Appellee, v. CURTIS MINCHUK, Defendant Appellant. ____________________ Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:15 cv 149 — James T. Moody, Judge. ____________________ ARGUED AUGUST 7, 2018 — DECIDED NOVEMBER 8, 2018 ____________________ Before KANNE, SCUDDER, and ST. EVE, Circuit Judges. SCUDDER, Circuit Judge. We consider whether the district court erred at summary judgment in denying qualified im munity to a police o cer who, in the context of an argument and fist fight over parking tickets, shot a semi truck driver. The o cer fired the shot after the driver stopped fighting, stepped back from the o cer, and—with his hands in the air—twice said “I surrender.” The district court concluded that a material question of fact existed as to whether the driver 2 No. 18 1514 continued to pose a threat at the exact moment the o cer fired the shot. We a rm. We cannot read the facts in the light most fa vorable to the plainti and, on the record as it presently stands, conclude as a matter of law that the o cer is entitled to qualified immunity. Doing so would mark a stark depar ture from clearly established law regarding an o cer’s use of deadly force. A trial is necessary to determine the precise timeline and circumstances leading to and surrounding the o cer’s deployment of such force. I A Our retelling of the facts tracks the district court’s account at summary judgment. See Estate of Clark v. Walker, 865 F.3d 544, 547 (7th Cir. 2017). Craig Strand drives an 18 wheeler. On May 20, 2013, he stopped in Merrillville, Indiana, to take a mandatory drug screening test. Unable to find parking at the drug testing fa cility, Strand received permission to park his rig outside a nearby Planned Parenthood o ce. Curtis Minchuk, a police o cer with the Town of Merrillville, was working security at Planned Parenthood the same day. He did so in uniform with authorization from the Town. Upon reporting to work, Minchuk noticed a semi truck parked in the lot. Unable to find the driver, he wrote two parking tickets and left them on the truck’s windshield. Upon returning to his truck, Strand found the tickets and went into Planned Parenthood to ask about them. An em ployee directed Strand to meet a police o cer by his truck. No. 18 1514 3 Strand tried to discuss the tickets with O cer Minchuk, ex plaining that he did not see any no parking signs in the lot, and also had received permission to park there. Minchuk had no interest in discussing the tickets beyond, as the district court observed, allegedly soliciting a bribe from Strand. After Strand declined to pay, Minchuk drove to the back of the Planned Parenthood facility. Strand started his rig, but before driving away used his cell phone to take pictures of the parking lot, thinking he might need them to show the absence of no parking signs to contest the tickets. Observing from a distance, O cer Minchuk returned to the truck and ordered Strand to leave immediately. Strand said he would leave as soon as he finished taking pictures. Minchuk responded by saying he was calling a tow truck and telling Strand he had two minutes to leave. The situation then escalated. Stepping toward Strand, O cer Minchuk admonished, “I told you to get the f*** outta here,” and slapped Strand’s cell phone to the ground. Minchuk then demanded Strand’s identification; Strand refused and countered by demanding Minchuk’s badge number. Minchuk replied, “I said, give me your I.D.” and grabbed Strand by his shirt and neck, resulting in Strand’s shirt tearing o his body. Minchuk attempted to push and tackle Strand to the ground, with Strand resisting by holding on to Minchuk’s arm. At that point, both men fell to the ground, with Strand then punching Minchuk at least three times in the face and placing his hands on Minchuk’s throat. Minchuk testified that this caused him to see stars, to feel as if he would pass out, 4 No. 18 1514 and to fear for his life. He worried that, if he passed out, Strand would take his gun and shoot him. The fist fight ceased when Strand stood up, backed four to six feet away from O cer Minchuk, put his hands up, and said, “I surrender. Do whatever you think you need to do. I surrender, I’m done.” While still on the ground, Minchuk re sponded by removing his gun from its holster and firing a shot at Strand, striking him in the abdomen. Strand survived the gunshot wound. (In a subsequent proceeding in Indiana state court, Strand was convicted of committing felony battery of a police o cer.) B Strand brought suit under 42 U.S.C. § 1983 against O cer Minchuk and the Town of Merrillville for the use of excessive force in violation of the Fourth Amendment. The defendants moved for summary judgment, contending that undisputed facts showed that O cer Minchuk could have reasonably be lieved Strand was not subdued—and therefore continued to present a danger—at the moment Minchuk chose to use deadly force. The defendants further argued that regardless of the district court’s ruling on the merits of the excessive force claim, Minchuk was entitled to qualified immunity. The district court denied the Town and Minchuk’s motion for summary judgment, concluding that a material fact remains unresolved and contested between the parties: whether su cient time passed upon Strand’s surrender to result in Strand being “subdued prior to O cer Minchuk’s use of deadly force.” Putting the same point another way, the district court determined that Strand’s substantive Fourth Amendment claim and O cer Minchuk’s corresponding No. 18 1514 5 request for qualified immunity could not be resolved on summary judgment because the record leaves “unclear whether the rapidly evolving nature of the altercation justified O cer Minchuk’s use of force, or whether he had time to recalibrate the degree of force necessary, in light of plainti ’s statement of surrender.” In emphasizing that these questions could not be an swered on summary judgment, the district court was able to make the limited observation that, “[a]t some point at the start of the physical altercation O cer Minchuk called for assis tance over his radio.” The court further observed that twenty one seconds passed from Minchuk’s radio call for backup to the report of the shooting, which the record shows came from a Planned Parenthood employee who called 911. O cer Minchuk now appeals, urging us to reverse the dis trict court’s denial of qualified immunity. II A We begin, as we must, by evaluating our jurisdiction over O cer Minchuk’s appeal. Although the denial of summary judgment ordinarily does not constitute an appealable final order under 28 U.S.C. § 1291, the collateral order doctrine af fords an exception for a denial of qualified immunity. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); Thompson v. Cope, 900 F.3d 414, 419 (7th Cir. 2018). The Supreme Court’s decision in Johnson v. Jones, 515 U.S. 304 (1995) teaches that the exception is not absolute, however. Immediate appeal is available only if we can evaluate the de nial of qualified immunity as a legal matter. See id. at 319–20. Here that requires us to view the facts as the district court did 6 No. 18 1514 in ruling on O cer Minchuk’s motion for summary judg ment—in the light most favorable to Strand as the plainti and non moving party. See Jones v. Clark, 630 F.3d 677, 680 (7th Cir. 2011). Only then do we evaluate the constitutionality of O cer Minchuk’s conduct. See Thompson, 900 F.3d at 419– 20; Jones, 630 F.3d at 680–81. In answering whether a police o cer is entitled to quali fied immunity as a matter of law, we must avoid resolving contested factual matters. See Gutierrez v. Kermon, 722 F.3d 1003, 1011 (7th Cir. 2013); Weinmann v. McClone, 787 F.3d 444, 446 (7th Cir. 2015) (“An appeal from a ruling on qualified im munity is not the time for the resolution of disputed facts.”). If we detect a “back door e ort” to contest facts on appeal, we lack jurisdiction. Jones, 630 F.3d at 680; see also Gutierrez, 722 F.3d at 1010 (reiterating limits of appellate jurisdiction over appeal from denial of qualified immunity and stating that a party “e ectively pleads himself out of court by interposing disputed factual issues in his argument”). Aware of this jurisdictional limitation, O cer Minchuk emphasizes that he is not contesting any facts and indeed, for purposes of this appeal, accepts them in the light most favor able to Strand as the non moving party. We take him at his word and proceed to evaluate whether O cer Minchuk is en titled to qualified immunity as a matter of law. See Jones, 630 F.3d at 680 (“In a collateral order appeal like this one, where the defendants say that they accept the plainti ’s version of the facts, we will take them at their word and consider their legal arguments in that light.”); Knox v. Smith, 342 F.3d 651, 656–57 (7th Cir. 2003) (following the same approach). In traveling this path, we cannot retreat from our obliga tion to avoid trying to answer (as a factual matter) the No. 18 1514 7 question the district court emphasized remains unresolved: whether enough time went by between Strand’s surrender and Minchuk’s use of deadly force such that Strand was sub dued at the moment Minchuk fired the shot. The Supreme Court has underscored the necessity for this exact discipline in this exact context—appellate review of a denial of qualified immunity on summary judgment. See Tolan v. Cotton, 134 S. Ct. 1861, 1868 (2014) (“By weighing the evidence and reaching factual inferences contrary to Tolan’s competent evidence, the court below neglected to adhere to the fundamental principle that at the summary judgment stage, reasonable inferences should be drawn in favor of the non moving party.”). B In evaluating O cer Minchuk’s entitlement to qualified immunity, we undertake the twofold inquiry of asking whether his conduct violated a constitutional right, and whether that right was clearly established at the time of the alleged violation. See District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018). We are free to choose which prong to address first. See Pearson v. Callahan, 129 S. Ct. 808, 812 (2009). The first prong of the inquiry, whether O cer Minchuk used excessive force and thereby violated Strand’s Fourth Amendment rights, is governed by the Supreme Court’s deci sions in Tennessee v. Garner, 471 U.S. 1 (1985) and Graham v. Connor, 490 U.S. 386 (1989). The law requires an assessment of the totality of the facts and circumstances and a “careful bal ancing of the nature and quality of the intrusion on the indi vidual’s Fourth Amendment interests against the countervail ing governmental interests at stake.” See Plumho v. Rickard, 134 S. Ct. 2012, 2020 (2014) (quoting Graham, 490 U.S. at 396). At a more specific level, we owe “careful attention” to “the 8 No. 18 1514 severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the o cers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396. The proper inquiry is one of “objective” reasonableness that proceeds without regard to the subjective “intent or mo tivation” of the o cer. Id. at 397. To be sure, the “calculus of reasonableness must embody allowance for the fact that po lice o cers are often forced to make split second judgments— in circumstances that are tense, uncertain, and rapidly evolv ing—about the amount of force that is necessary in a particu lar situation.” Id. at 396–97. So, too, however, have we cau tioned that “[w]hen an o cer faces a situation in which he could justifiably shoot, he does not retain the right to shoot at any time thereafter with impunity.” Ellis v. Wynalda, 999 F.2d 243, 247 (7th Cir. 1993). After all “[t]he circumstances might materially change,” for “[e]ven though an o cer may in one moment confront circumstances in which he could constitu tionally use deadly force, that does not necessarily mean he may still constitutionally use deadly force the next moment.” See Horton v. Pobjecky, 883 F.3d 941, 950 (7th Cir. 2018). If the facts and circumstances show that an individual who once posed a threat has become “subdued and comply ing with the o cer’s orders,” the o cer may not continue to use force. See Johnson v. Scott, 576 F.3d 658, 660 (7th Cir. 2009). And that is especially so when it comes to the use of deadly force: “[A] person has a right not to be seized through the use of deadly force unless he puts another person (including a po lice o cer) in imminent danger or he is actively resisting ar rest and the circumstances warrant that degree of force.” Weinmann, 787 F.3d at 448. As the Supreme Court succinctly No. 18 1514 9 stated in Garner, “[a] police o cer may not seize an unarmed, nondangerous suspect by shooting him dead.” 471 U.S. at 11. Wherever “feasible,” moreover, the o cer should give a warning before deploying deadly force. Id. at 12. For the law to be clearly established—the second prong of the qualified immunity analysis—the “existing precedent must have placed the statutory or constitutional question be yond debate.” Ashcroft v. al Kidd, 563 U.S. 731, 741 (2011). The necessary starting point is to define the right at issue with specificity. See Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018). Indeed, the Supreme Court has “’repeatedly told courts … not to define clearly established law at a high level of generality,’ since doing so avoids the crucial question whether the o cial acted reasonably in the particular circumstances he or she faced.” Rickard, 134 S. Ct. at 2023 (quoting al Kidd, 563 U.S. at 742); see also Kisela, 138 S. Ct. at 1153 (emphasizing im portance of defining clearly established law with specificity in the excessive force context). The demand for specificity is not unyielding or bereft of balance. Assessing whether the law is clearly established does not require locating “a case directly on point.” Kisela, 138 S. Ct. at 1152. Law enforcement o cers, the Court has stressed, “can still be on notice that their conduct violates established law even in novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 741 (2002). C Whether we approach O cer Minchuk’s request for qual ified immunity by first assessing the merits of Strand’s claim or instead by evaluating whether Minchuk’s conduct violated clearly established law, we come to the same barrier: we 10 No. 18 1514 cannot—as we must—view the facts in Strand’s favor and conclude as a matter of law that Minchuk is entitled to quali fied immunity on summary judgment. O cer Minchuk resorted to the use of deadly force at a time when Strand had stopped fighting, separated from Minchuk, stood up, stepped four to six feet away from Minchuk, and, with his hands in the air, said, “I surrender. Do whatever you think you need to do. I surrender, I’m done.” The record shows that Strand was unarmed at all points in time. Furthermore, upon standing, raising his hands, and voicing his surrender, Strand never stepped toward Minchuk, made a threatening statement, or otherwise did anything to suggest he may resume fighting or reach for a weapon. Recall, too, the broader circumstances that led to the shooting. The police were not in hot pursuit of an individual known to be armed and dangerous. Nor had the police re sponded to a report of violent crime or otherwise arrived at a location only to find an individual engaged in violent or men acing conduct or acting so unpredictably as to convey a threat to anyone present. To the contrary, the entire fracas leading to O cer Minchuk’s use of deadly force began with his issuance of parking tickets. After Strand declined to make an on the spot cash payment and instead sought to take pictures to show the absence of no parking signs, O cer Minchuk allowed the situation to escalate and boil over by slapping Strand’s cell phone to the ground and then tearing Strand’s shirt from his body. The fist fight then ensued, with Strand choosing to stop throwing punches and stand up and o er his express surrender, including by raising his hands above his head. It was then—with no direction to Strand to keep his hands in No. 18 1514 11 the air, to fall to his knees, or to lay on the ground—that O cer Minchuk drew his gun and fired the shot. A reasonable jury could find that O cer Minchuk violated Strand’s constitutional right to remain free of excessive force. On these facts and circumstances, considered collectively and in the light most favorable to Strand, Strand no longer posed an immediate danger to O cer Minchuk at the time he fired the shot. The Fourth Amendment does not sanction an of ficer—without a word of warning—shooting an unarmed of fender who is not fleeing, actively resisting, or posing an im mediate threat to the o cer or the public. See Garner, 471 U.S. at 11 (“A police o cer may not seize an unarmed, nondanger ous suspect by shooting him dead.”). The district court correctly observed that additional fact finding was necessary to determine whether “the rapidly evolving nature of the altercation” justified O cer Minchuk’s use of deadly force or whether “he had time to recalibrate the degree of force necessary, in light of [Strand’s] statement of surrender.” This fact finding cannot occur on summary judg ment (or appeal), so we cannot conclude that the district court committed error in determining a genuine issue of material fact prevented a resolution of the merits of Strand’s claim. O cer Minchuk urges a contrary conclusion. He argues that Strand’s “sudden and unexpected gesture of surrender,” after having just finished beating O cer Minchuk about the face and head while pressing down on O cer Minchuk’s throat, proves as a matter of law that a reasonable o cer could have believed the use of deadly force was objectively warranted to prevent Strand from inflicting additional serious harm. O cer Minchuk goes even further, contending that “[t]here is no dispute in this case that [Strand], who was 12 No. 18 1514 standing over O cer Minchuk just a few feet away from him completely unrestrained, was not subdued at the time that O cer Minchuk deployed deadly force.” Factual disputes do not resolve on the force of say so, how ever. What O cer Minchuk sees as undisputed—whether Strand continued to pose a threat at the moment Minchuk de ployed deadly force—is actually unresolved and indeed vig orously contested by Strand. For Minchuk to prevail at this stage, the record must show that he fired while Strand still posed a threat. Instead, the record shows that Strand had backed away, voiced his surrender, and up to five, ten, or fif teen seconds may have elapsed while Strand stood with his hands in the air. And that is why the district court rightly de termined, after a close and careful analysis of the record, that Minchuk was not entitled to qualified immunity as a matter of law at summary judgment on the merits of Strand’s claim. This same factual dispute also prevents us from conclud ing, as O cer Minchuk urges, that Strand’s clearly estab lished constitutional rights were not violated, the second prong of the qualified immunity inquiry. We analyze whether precedent squarely governs the facts at issue, mindful that we cannot define clearly established law at too high a level of generality. Yet we can look at the facts only with as much specificity as the summary judgment record allows. It is beyond debate that a person has a right to be free of deadly force “unless he puts another person (including a po lice o cer) in imminent danger or he is actively resisting ar rest and the circumstances warrant that degree of force.” Weinmann, 787 F.3d at 448; see also Becker v. Elfreich, 821 F.3d 920, 928 (7th Cir. 2016) (emphasizing that it is “well estab lished that police o cers cannot continue to use force once a No. 18 1514 13 suspect is subdued”). But the district court could not deter mine whether—at the point Minchuk used deadly force— Strand posed an imminent harm to O cer Minchuk. The rec ord left unclear precisely how much time went by from the moment the fist fight stopped to the moment O cer Minchuk pulled the trigger. All the record shows is that twenty one seconds passed between O cer Minchuk radioing for assistance and the po lice department receiving the 911 call from the Planned Parenthood employee who reported the shooting. However much time elapsed between the end of the fighting and the gunshot had to be enough for Strand to bring the ground brawl to an end, to stand up and step back four to six feet, and then to raise his arms and say to O cer Minchuk, “I surren der. Do whatever you think you need to do. I surrender, I’m done.” Perhaps all of this took ten seconds. Or perhaps it took seven seconds or maybe fifteen. At some point, though, enough time may have passed that it would have been objec tively unreasonable for O cer Minchuk to continue to believe that he was in imminent danger. But, as the district court ob served, the record at this stage does not answer whether Strand continued to pose a threat when Minchuk fired. And this is the hurdle—the unresolved material question of fact— that O cer Minchuk cannot clear on summary judgment. O cer Minchuk points to our decision in Johnson v. Scott, 576 F.3d 658 (7th Cir. 2009), which he sees as “controlling and dispositive in this case,” to contend that there is no way to conclude that he violated clearly established law in using deadly force in the circumstances he faced here. Read fairly, however, Johnson lends little support to O cer Minchuk, at least at the summary judgment stage. Facts matter, and the 14 No. 18 1514 facts of Johnson were quite di erent. The crimes leading to ar rest in Johnson were severe—a shooting and then reckless flight in a car and by foot from the police. See 576 F.3d at 660. The suspect had “used every method at his disposal to flee” but encountered a fence “too high for him to jump over.” Id. At that point, cornered, he put his hands up in the air and at tempted to surrender, just as the o cer, in a split second re action, deployed force on the suspect. Id. at 659. Critical to the court’s decision that the o cer was entitled to qualified im munity was that “it could not have been more than one sec ond between [the suspect’s] surrender and the use of force by [the o cer].” Id. at 660. The contrast is clear: Strand’s confrontation with O cer Minchuk involved no high speed car and foot chase, no re port of a violent crime, and no reason to believe an o ender was armed. Far from undermining the clearly established law that the use of deadly force against a person posing no risk of imminent harm is unreasonable, Johnson underscores that the circumstances of the surrender and the timeline surrounding the use of force are critical. And here, unlike in Johnson, the circumstances are unclear such that we cannot discern with any confidence whether Strand continued to pose a threat to O cer Minchuk. The clearly established law comes from cases in which we have emphasized that a subdued suspect has the right not to be seized by deadly force. See, e.g., Weinmann, 787 F.3d at 448; see also Becker, 821 F.3d at 929 (upholding a denial of qualified immunity where an o cer used force on a suspect who was not fleeing, was out in the open, and had surrendered with his hands above his head); Miller v. Gonzalez, 761 F.3d 822, 829 (7th Cir. 2014) (holding that an o cer was not entitled to No. 18 1514 15 qualified immunity at the summary judgment stage where, at the point the o cer used force, the suspect was visible to the o cer and “had been motionless for upwards of ten sec onds”). Weinmann also instructs that a dispute of fact regarding the circumstances surrounding an o cer’s use of force may prevent us from determining whether an individual’s clearly established rights have been violated. 787 F.3d at 451. There the summary judgment record left unresolved whether a sui cidal man with a gun presented an immediate threat to an of ficer who arrived on the scene. See id. at 448. Under one ver sion of the facts, the o cer’s use of force would have been reasonable; under another, clearly established law would have made it unreasonable. See id. at 449−50. And it was this uncertainty as to a material fact that “preclude[d] a ruling on qualified immunity” on summary judgment. Id. at 451. We chart the same course here. The existence of the substantial factual dispute about the circumstances and timing surrounding Minchuk’s decision to shoot Strand precludes a ruling on qualified immunity at this point. This is not to foreclose the availability of qualified immunity to O cer Minchuk at trial. At trial a jury may resolve these disputed facts in O cer Minchuk’s favor, and the district court could then determine he is entitled to qualified immunity as matter of law. See Warlick v. Cross, 969 F.2d 303, 305 (7th Cir. 1992) (“When the issue of qualified immunity remains unresolved at the time of trial, as was the case here, the district court may properly use special interrogatories to allow the jury to determine disputed issues of fact upon which the court can base its legal determination of qualified 16 No. 18 1514 immunity.”). But we cannot make such a determination at this stage on this record. For these reasons, we AFFIRM.
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