Lopez v. Sheriff of Cook County, No. 20-1681 (7th Cir. 2021)
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At 3:55 a.m. people were loitering outside a lounge when Lopez sideswiped an SUV parked in front of the lounge. Bystanders swarmed Lopez’s car, punching him through an open window. A passenger exited Lopez’s car and fired a warning shot. Lopez exited the car, grabbed the gun, and walked toward the bystanders. Raines, a Cook County correctional officer, out celebrating, arrived at 3:56:11. Lopez walked back toward his car, stopping to fire two shots at an upward angle. Raines approached Lopez with his own gun drawn. Lopez reached to open his car door. Raines started shooting at 3:56:27. Lopez, injured, dropped his gun and staggered away. Raines continued to fire. Raines pursued Lopez, who was leaning against a wall. Lopez’s passenger, Orta, picked up the dropped gun and fired at Raines at 3:56:32 a.m. For about three minutes, Orta and Raines engaged in a standoff. Raines simultaneously restrained Lopez, wounded but conscious, and used him as a human shield. At 4:00:10 a.m., Orta fled. Police and paramedics arrived. Lopez faced criminal charges.
The Seventh Circuit affirmed summary judgment for the defendants in his 42 U.S.C. 1983 suit. Raines was entitled to qualified immunity because his use of deadly force did not violate clearly established law although the video footage of the events conveys the impression that Raines might have been able to avoid any use of lethal force.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 20-1681 FERNANDO LOPEZ, Plaintiff-Appellant, v. SHERIFF OF COOK COUNTY, et al., Defendants-Appellees. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 16 C 10931 — Edmond E. Chang, Judge. ____________________ ARGUED DECEMBER 4, 2020 — DECIDED APRIL 9, 2021 ____________________ Before KANNE, WOOD, and SCUDDER, Circuit Judges. SCUDDER, Circuit Judge. Nothing much good happens after 3:00 a.m. The early morning hours of November 30, 2014 outside the Funky Buddha Lounge on Chicago’s West Side were no di erent. That morning, upon hearing a gunshot, O cer Michael Raines, an o -duty Cook County correctional o cer out celebrating a friend’s birthday, approached the scene of a scu e between patrons outside the Lounge. Fernando Lopez was present and pulled a gun, ring two shots into the air. 2 No. 20-1681 Having seen Lopez re near people on a crowded street, Of cer Raines confronted and shot Lopez multiple times in the span of three seconds. Lopez reacted by dropping his gun and scampering toward the sidewalk outside the bar. Just as Raines began to chase after him, Lopez’s friend Mario Orta picked up the dropped gun and red at Raines—but missed. O cer Raines then used Lopez as a human shield in a stando with Orta for several minutes until Orta ed. The scene was chaotic and everything happened fast. Lopez survived and brought a civil rights suit alleging Of cer Raines used excessive force against him in violation of the Fourth Amendment. The district court granted summary judgment for the defendants, concluding that O cer Raines was entitled to quali ed immunity because his use of deadly force did not violate clearly established law. We a rm, though not without the same pause expressed by the district court. Our review of the record, including video footage of the events, leaves us with the impression that although the circumstances were volatile, O cer Raines may have been able to avoid any use of lethal force. We cannot conclude, however, that his decision to the contrary violated clearly established law. I A Our retelling of the facts tracks the district court’s meticulous recitation at summary judgment. We view all facts in the light most favorable to Lopez as the nonmovant and draw all reasonable inferences in his favor. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). We may also take stock of what the video evidence shows without favoring No. 20-1681 3 Lopez where the video contradicts his view of the facts. See Scott v. Harris, 550 U.S. 372, 378–81 (2007); Horton v. Pobjecky, 883 F.3d 941, 944 (7th Cir. 2018). Security camera timestamps show that at about 3:55 a.m. on November 30, 2014, many people were loitering outside the Funky Buddha Lounge. Fernando Lopez was driving a group of his friends westbound on Grand Avenue when he sideswiped an SUV parked in front of the Lounge. A group of bystanders saw this and reacted by swarming Lopez’s car and grabbing and punching at him through an open window. The already tense situation then escalated. One of the passengers exited Lopez’s car, displayed a handgun, and red a warning shot into the air. Lopez also got out of the car, grabbed the passenger’s gun, and waved it around in the air—presumably to scare o the group that had encircled his car. Lopez then walked toward a few of the men in the now-dispersed group, crossing the street and alternating between pointing the gun at them and up in the air as if to tell everyone not to mess with him. While all of this unfolded, Michael Raines, a correctional o cer with the Cook County Sheri ’s O ce who had been out celebrating a friend’s birthday, arrived on the scene at 3:56:11 a.m., likely after hearing the initial gunshot from a nearby bar. The video footage shows Raines running onto Grand Avenue, at an intersection not more than a few car lengths from where Lopez stood. Just a few seconds after Raines came onto the scene, Lopez turned away from his eeing attackers and walked back toward his car. While doing so, he stopped in the middle of the street and red two shots at an upward angle in the general direction of a few eeing 4 No. 20-1681 Lounge-goers. O cer Raines then approached Lopez with his own gun drawn. It was now 3:56:22 a.m. Raines and Lopez walked toward each other—both visibly armed—though it was not clear whether Lopez had seen Raines by this point. Lopez waved his gun up and down, though he does not appear to have aimed directly at O cer Raines. For his part, Raines had his gun aimed at Lopez. Lopez then reached to open his car door, but Raines started shooting before he could get inside the car (at about 3:56:27 a.m.). Lopez—hit by at least one bullet— turned, dropped his gun, and started to stagger away. Raines stayed focused on Lopez and continued to re for two more seconds, stopping at 3:56:30 a.m. All told, Raines appears to have red six rounds in three seconds. Injured but still standing, Lopez then ran around the back of his car, eventually reaching the sidewalk right outside the Lounge at about 3:56:32 a.m. O cer Raines kept pursuing Lopez, who was holding himself up by leaning against the Lounge’s wall. As Raines followed and approached Lopez, Mario Orta, a passenger in Lopez’s car, picked up the dropped gun and almost immediately red a shot directly at O cer Raines (at about 3:56:32 a.m.). The shot missed. Raines reached Lopez along the Lounge’s exterior wall just two seconds later. What followed was bizarre and dangerous—but it all happened and was captured on several security cameras. Video footage from one of the cameras may be accessed at https://www.chicagotribune.com/news/breaking/ct-funkybuddha-gun ght-sentencing-20170725-story.html. For about three and a half minutes, Mario Orta (Lopez’s friend) and Of cer Raines engaged in a protracted stando with guns No. 20-1681 5 pointed at one another. At several points in the stando , Orta circled Raines, getting as close as a couple of feet away from him. Throughout the stando with Orta, Raines simultaneously restrained Lopez—now wounded, but conscious—and used him as a human shield to prevent Orta from getting a clean shot. At one point, Orta entered the Lounge, seemingly looking for another route to approach Raines. Orta eventually reemerged from the Lounge’s front entrance at 3:56:54 a.m. and aimed his gun squarely at Raines. Orta started to walk o , but then again approached Raines at 3:57:13 a.m. During this confrontation, O cer Raines alternated between holding the gun at Lopez’s head, using it to wave o bystanders who tried to di use the situation, and pointing his gun straight at Orta. Lopez, injured but still alert, repeatedly swatted at Raines’s gun in an e ort to dislodge it. At about 4:00:10 a.m., less than ve minutes after events began with an errant car sideswipe, Orta ed the scene. That no one died during the chaotic melee is astonishing. B Police and paramedics soon arrived at the scene. Lopez survived and later faced criminal charges in Cook County, where he pleaded guilty to a state law rearms o ense. See 720 ILCS 5/24-1.2(a)(2) (de ning and criminalizing the aggravated discharge of a rearm). He also brought suit in federal court under 42 U.S.C. § 1983 against O cer Raines (and now that Raines has since passed away, against his special representative), the Sheri of Cook County, and Cook County. Lopez alleged that Raines used excessive force in violation of the Fourth Amendment. He also brought a related Monell liability claim against Cook County. 6 No. 20-1681 The defendants moved for summary judgment, contending that O cer Raines did not use excessive force and that Lopez’s § 1983 action was barred by Heck v. Humphrey, 512 U.S. 477 (1994), on the view that the claim necessarily undermines the validity of Lopez’s conviction in Cook County. The defendants further argued that O cer Raines was entitled to quali ed immunity regardless of the merits of the excessive force claim. While Lopez disputed whether quali ed immunity applied to Raines’s speci c conduct, he did not contend that O cer Raines was ineligible to assert the defense on the basis that the challenged conduct occurred while Raines was o duty. Doing otherwise would have undermined the basis for Lopez’s § 1983 suit, which requires that a defendant act “under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). Our case law also makes plain that Raines’s conduct, even though o duty, could constitute state action. See Pickrel v. City of Spring eld, 45 F.3d 1115, 1118 (7th Cir. 1995) (“Deciding whether a police o cer acted under color of state law should turn largely on the nature of the speci c acts the police o cer performed, rather than on merely whether he was actively assigned at the moment to the performance of police duties.”). The district court entered summary judgment for the defendants, concluding that even though Lopez’s suit was not Heck-barred, O cer Raines was entitled to quali ed immunity. That determination, the district court observed, meant that the rest of Lopez’s claims necessarily failed. The district court chose to proceed rst to the second prong of the quali ed immunity analysis—whether O cer Raines violated clearly established law. See Pearson v. Callahan, 555 U.S. 223, 236 (2009) (concluding that judges may No. 20-1681 7 exercise “discretion in deciding which of the two prongs of the quali ed immunity analysis should be addressed rst”). While emphasizing that Raines’s conduct is open to criticism, the district court explained that the law a ords police o cers signi cant deference in making snap decisions in the heat of the moment, with o cers losing the bene t of quali ed immunity only when they violate clearly established law. O cer Raines, the district court observed, heard a gunshot, responded, and then saw Lopez re a weapon around a group of people standing outside and near the Funky Buddha Lounge. The court further observed that after shooting Lopez, Raines was red upon and subsequently engaged in a prolonged stando with an armed assailant while trying to subdue an injured-but-resisting Lopez. With these unique and fast-moving facts front of mind, the district court concluded that O cer Raines did not violate clearly established law and was therefore entitled to quali ed immunity. Lopez now appeals. II We rst consider the defendants’ argument that Heck v. Humphrey bars Lopez’s § 1983 claim. This contention is way o the mark. A prisoner cannot seek damages against a governmental entity for a violation of his constitutional rights when a judgment in the prisoner’s favor “would necessarily imply the invalidity of his conviction or sentence.” Heck, 512 U.S. at 486– 87. Allowing Lopez’s excessive force claim to proceed, the defendants contend, implies the invalidity of Lopez’s conviction for discharging a rearm. We agree with the district court that Lopez’s conviction does not bar his § 1983 suit because 8 No. 20-1681 success on the Fourth Amendment excessive force claim does not depend on any fact undermining or implying the invalidity of the state law conviction. Lopez pleaded guilty to aggravated discharge of a rearm, which requires a person to knowingly or intentionally re in the direction of another person. See 720 ILCS 5/24-1.2(a)(2). Under Illinois law, however, a person can be found guilty of that o ense without posing a threat of serious harm to another. See People v. Ellis, 929 N.E.2d 1245, 1248–49 (Ill. App. Ct. 2010). This means Lopez can be guilty of aggravated discharge of a rearm while also having had excessive force used against him by an o cer after the fact. These two realities are not mutually exclusive. So Heck does not bar Lopez’s § 1983 claim. III A We come now to the district court’s grant of quali ed immunity. The doctrine of quali ed immunity balances dueling interests—allowing o cials to perform their duties reasonably without fear of liability on the one hand and “a ording members of the public the ability to vindicate constitutional violations by government o cials who abuse their o ces” on the other. See Weinmann v. McClone, 787 F.3d 444, 447–48 (7th Cir. 2015) (cleaned up). In evaluating a law enforcement of cer’s entitlement to quali ed immunity, we undertake the twofold inquiry of asking whether his conduct violated a constitutional right and, if so, 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 may choose which prong to address rst. See Pearson, 555 U.S. at 236. No. 20-1681 9 Like the district court, we begin and end with the second step of the analysis: determining whether O cer Raines violated Fernando Lopez’s clearly established Fourth Amendment right to be free from an unreasonable seizure. For the law to be clearly established, the “existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). Assessing whether an o cer used excessive force turns on whether the o cer’s actions are “objectively reasonable in light of the facts and circumstances confronting [the o cer].” Graham v. Connor, 490 U.S. 386, 397 (1989) (internal quotation omitted). We must consider, too, “the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to safety of the o cers or others, and whether he is actively resisting arrest or attempting to evade arrest by ight.” Id. at 396. This context-speci c inquiry notwithstanding, it is rmly established that a “person has a right not to be seized through the use of deadly force unless he puts another person (including a police o cer) in imminent danger or he is actively resisting arrest and the circumstances warrant that degree of force.” Strand v. Minchuk, 910 F.3d 909, 915 (7th Cir. 2018) (quoting Weinmann, 787 F.3d at 448); see also Tennessee v. Garner, 471 U.S. 1, 11–12 (1985). But these situations are uid. While an o cer may be authorized to use deadly force at one moment, it is not a blank check. When an individual has become “subdued and [is] complying with the o cer’s orders,” the o cer may no longer use deadly force. Johnson v. Scott, 576 F.3d 658, 660 (7th Cir. 2009). Yet we must be careful not to allow the bene t of hindsight to cause us to discount the reality 10 No. 20-1681 that o cers must make quick decisions as to how much force, if any, to employ. See Graham, 490 U.S. at 396–97. While cases like Garner and Graham are instructive in the excessive force context, they “do not by themselves create clearly established law outside an obvious case.” Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (internal citations omitted). Determining whether an o cer violates clearly established law requires a look at past cases with speci city. See id. at 1152–53. The Supreme Court has time and again instructed lower courts “not to de ne clearly established law at a high level of generality.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (quoting al-Kidd, 563 U.S. at 742). Speci city is critical to making quali ed immunity a workable doctrine in the Fourth Amendment context, where it “is sometimes di cult for an o cer to determine how the relevant legal doctrine . . . will apply to the factual situation the o cer confronts.” Id. at 308. But this requirement is not unbending. The prong-two clearly-established-law assessment does not require a case with identical factual circumstances, lest quali ed immunity become absolute immunity. See Kisela, 138 S. Ct. at 1152. Still, the right must be so clearly established such that it is “su ciently clear that every reasonable o cial would have understood that what he is doing violates that right.” Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012) (cleaned up). That sounds like a high bar because it is—quali ed immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). B The district court approached this inquiry the exact right way, looking rst to past precedent to ask whether any cases No. 20-1681 11 squarely govern the facts at issue. In following suit, we too think it best to consider O cer Raines’s use of force that early morning in two distinct phases: the shooting of Lopez and the use of Lopez as a human shield during the sidewalk stando . Recall the scene when O cer Raines arrived. It was just before 4 a.m. when Raines heard a gunshot from a nearby bar and ran to Grand Avenue, where he saw Fernando Lopez re two shots into the air, in close proximity to the scattering crowd outside the Funky Buddha Lounge. Lopez then turned in Raines’s direction and began walking toward him, all the while displaying and waving a gun. Though we have tried our best to describe the incident, a picture is worth a thousand words. This still image of security camera video footage shows the positioning and proximity of Lopez (indicated by a triangle) and O cer Raines (circled) when Lopez, while standing in 12 No. 20-1681 the middle of Grand Avenue, red twice into the air at 3:56:20 a.m. Neither the Supreme Court’s precedent nor our own clearly establishes that O cer Raines’s split-second decision to open re was unlawful. There were many people on the city street when Lopez, just moments before, opened re. All Raines knew at the time he red was that Lopez had just popped o two rounds and that Lopez was now walking in his general direction with gun in hand. A reasonable o cer could have concluded that Lopez was an imminent threat both to the o cer and the bystanders on the street and outside the Lounge. Lopez insists that O cer Raines should have given him a warning. Whether Raines did so is disputed. At summary judgment and without any clear evidence to the contrary, we must credit Lopez’s contention that Raines did not announce himself as a police o cer. A warning is decidedly preferred— but it is not required in every circumstance. See Pobjecky, 883 F.3d at 952 (“Garner requires an o cer to warn ‘where feasible’ but does not require an o cer to warn under all circumstances.”). Given the lack of clearly established law, O cer Raines is entitled to quali ed immunity as to the rst shot. From here the case gets much harder. Lopez contends that even if the rst shot did not transgress established law, Raines’s subsequent shots clearly violated Lopez’s constitutional right not to have lethal force used against him once he was subdued by the initial shot. But that contention too discounts the speed and unpredictability with which events unfolded on the street that morning. As the district court explained, the video shows that Raines rst shot Lopez at 3:56:27 a.m. Lopez dropped his gun one second later, No. 20-1681 13 but as he turned and started to run, O cer Raines red for two more seconds, until 3:56:30 a.m. Raines red all of his shots in the span of three seconds. In retrospect, and with the bene t of the security footage, it is inviting to parse the multiple shots red into separate individual events. But we must consider them together in light of how quickly—and in precisely what circumstances—everything transpired. Indeed, in this very context of quali ed immunity, the Supreme Court has emphasized that a proper analysis must “allo[w] for the fact that police o cers 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.” Plumho v. Rickard, 572 U.S. 765, 775 (2014) (alteration in original) (quoting Graham, 490 U.S. at 396–97). Lopez cannot point to a case that clearly establishes a reasonable o cer cannot use lethal force over the span of three seconds on an individual he had just seen re his weapon, who has not surrendered, and is still moving to evade capture. Lopez points to precedent that we nd either easily distinguishable or standing for principles that do not show that Of cer Raines’s conduct violated clearly established law. Consider, for instance, our decision in Ellis v. Wynalda, 999 F.2d 243 (7th Cir. 1993). Wynalda clearly establishes only that “[w]hen an o cer faces a situation in which he could justi ably shoot, he does not retain the right to shoot at any time thereafter with impunity.” Id. at 247. That general proposition is clear, but it does not change our analysis of O cer Raines’s speci c conduct. Wynalda is di erent because the victim there was shot in the back while eeing and did not have a gun— unlike Lopez, who was armed, had just red at least two shots 14 No. 20-1681 on a populated city street, and was walking in the direction of an o cer while displaying a gun. Nor does Sledd v. Lindsay, 102 F.3d 282 (7th Cir. 1996), defeat quali ed immunity for O cer Raines. In Sledd, we reversed a grant of quali ed immunity because there were numerous disputed questions of material fact that were, incidentally, unaided by any video footage. See id. at 284. Even more signi cant, Andrew Sledd was shot in his own home after police executed a disputed no-knock warrant—and crucially, Sledd had not red any shots in front of police. See id. at 286. The shooting of Lopez, by contrast, happened on a crowded city street only after O cer Raines saw Lopez re shots and walk toward him displaying the gun. Not only are these cases distinguishable, but there is also recent precedent with facts that more closely resemble the situation here. Just two years ago, we held that an o -duty police of cer—who did not announce himself—acted reasonably when he shot and killed an unarmed, eeing suspect at a pizza parlor. See Pobjecky, 883 F.3d at 946. That case, while not on all fours with the circumstances here, does lend support to the district court’s conclusion that O cer Raines did not violate clearly established law. At the very least, Pobjecky does not “place[ ] the invalidity of [Raines’s conduct] beyond debate.” Johnson v. Rogers, 944 F.3d 966, 969 (7th Cir. 2019). C Our assessment does not change when we consider O cer Raines’s conduct on the sidewalk. Recall that after Raines shot Lopez, Lopez quickly moved around the rear of his car and scampered toward the sidewalk. Security footage shows Lopez dropped his gun but was still eeing. Raines followed No. 20-1681 15 after him, quickly reaching Lopez on the sidewalk near the entrance to the Lounge just a few seconds later (at 3:56:34 a.m.). As O cer Raines followed after Lopez, Mario Orta picked up Lopez’s gun and immediately opened re on Raines—shooting directly at him but missing. Raines was then forced to deal with two assailants—restraining an injured Lopez and keeping a mobile, gun-toting Orta at bay. Notice what O cer Raines did not do: he never again red his weapon. He instead used Lopez’s body as a bu er between himself and Orta, rotating his position (and the injured Lopez) to react to Orta’s constant movement. Here, too, a picture may again clarify the scene. This still image of security camera video footage shows one snippet of the sidewalk stando between Orta (indicated by a rectangle) and Raines (circled) at 3:57:15 a.m. The picture shows what we mean when we say that O cer Raines used Lopez as a human shield. 16 No. 20-1681 To be sure, Raines aggressively restrained Lopez, at times holding a gun to his head. You certainly (and rightly) will not nd this maneuver in a police training manual. But the quali ed immunity inquiry is not whether O cer Raines’s action is immune from criticism. The question the Supreme Court instructs courts to consider instead is whether O cer Raines violated clearly established law. In our view, he did not. Putting a gun to someone’s head is no doubt a use of force. See Jacobs v. City of Chicago, 215 F.3d 758, 773 (7th Cir. 2000). And the use of such force is unreasonable when the suspect is subdued and complying with orders. See Johnson, 576 F.3d at 660. But Lopez was neither incapacitated nor complying with orders. He was actively trying to swat O cer Raines’s gun away as Raines tried to fend o an armed and dangerous Orta. By the district court’s count, Lopez did this more than 17 times while Orta aimed his gun squarely at Raines. The combination of these unusual facts compels our conclusion. We cannot say that O cer Raines’s actions on the sidewalk violated law clearly established in 2014—especially when considering the Supreme Court’s admonition to de ne the violation with speci city. Try as Lopez might, there is no analogous case to put Raines on notice that his conduct was unlawful given the circumstances he faced in those early morning hours. Nor is this a situation where a violation is so egregious that any reasonable o cer would know they are violating the Constitution notwithstanding the lack of an analogous decision. See Taylor v. Riojas, 141 S. Ct. 52, 53–54 (2020); Hope v. Pelzer, 536 U.S. 730, 740–42 (2002); Estate of Escobedo v. Bender, 600 F.3d 770, 780 (7th Cir. 2010) (“[The] conduct was so patently violative of the constitutional right that reasonable No. 20-1681 17 o cials would know without guidance from a court.”). The situation was too fast-moving, too unpredictable, and too volatile to reach that conclusion. Raines could have reasonably concluded he was acting lawfully in protecting himself and the public when he subdued Lopez and tried to defuse the situation by using him as a shield to ward o Mario Orta until police arrived at the scene. IV What makes this case di cult is the distinct impression the video leaves us with after watching it multiples times. By the looks of it, there is a reasonable chance that Fernando Lopez was about to get in his car and leave the scene right when O cer Raines opened re. That observation invites the conclusion that Raines may not have needed to use lethal force at all. This whole situation may have been avoided had cooler heads prevailed that morning. Hindsight—aided by watching this scene unfold frame by frame on video footage from four distinct angles in the comfort of the courthouse—allows us to ponder how O cer Raines could have best handled the situation. But that is not our inquiry here. We are left to evaluate whether Raines’s conduct violated clearly established law, given the dangerous, delicate, and dynamic circumstances he faced that morning and the state of the law at the time. The bene t of hindsight does not lower the clear and high bar that is the law of quali ed immunity. In this case that bar compels us to AFFIRM the grant of quali ed immunity.
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