Cheryl TOM, individually and as administratrix of the estate of Wayne Lee Tom, deceased, Plaintiff-Appellant, v. Dawn E. VOIDA, individually and in her official capacity as a Police Officer of the City of Indianapolis, Paul Annee, individually and in his official capacity as Chief of Police, Indianapolis Police Department and City of Indianapolis, Defendants-Appellees.
No. 91-2293
United States Court of Appeals, Seventh Circuit
Argued Feb. 11, 1992. Decided May 8, 1992.
963 F.2d 952
Frances W. Hardy, Marion County Legal Div., John C. Ruckelshaus, Ruckelshaus, Roland, Hasbrook & O‘Connor, Douglas J. Webber, City-County Legal Div., Andrew P. Wirick, Corp. Counsel, argued, Office of the Corp. Counsel, City Counsel Legal Div., Indianapolis, Ind., for Dawn E. Voida.
Frances W. Hardy, Marion County Legal Div., Douglas J. Webber, City-County Legal Div., Andrew P. Wirick, Corp. Counsel, Office of the Corp. Counsel, Indianapolis, Ind., for Paul Annee and City of Indianapolis.
Before CUMMINGS, Circuit Judge, and WOOD, Jr., and ESCHBACH, Senior Circuit Judges.
ESCHBACH, Senior Circuit Judge.
This case began when a police officer benevolently approached an eighteen-year-old whom she did not suspect of any wrongdoing. For various reasons, this innocent encounter progressively escalated into a leisurely pursuit on foot, a rough-and-tumble chase, an attempted handcuffing, a violent physical struggle, another chase, another violent struggle, and ultimately a fatal shooting of the citizen. The question is whether the circumstances surrounding the escalation to violence give rise to a
Facts1
On December 10, 1988, Dawn E. Voida, an Indianapolis police officer, was investigating a report that shots had been fired in a certain neighborhood. While driving in her car, she noticed Wayne Lee Tom, an eighteen-year-old male, fall off his bicycle and remain on the ground. Tom was lying down with his arms and legs in the air, “like a bug.” Voida Depo. at 118; R. 103 at 4. Voida did not suspect Tom of any crime, but she was concerned that he might have hurt himself or had some medical problem, and wished to help him. Voida Depo. at 122-25; R. 103 at 4. She stopped her vehicle to investigate. As Voida approached Tom on foot while in full uniform, Tom immediately got up, grabbed the bicycle, and began to walk away. Voida Depo. at 121; R. 103 at 4. Voida asked Tom if he was alright, but Tom did not respond and continued to walk away for approximately 35 seconds. He glanced back at Voida all the while. Voida Depo. at 125-26; R. 103 at 1. Voida followed him, but Tom began to walk faster. Finally, Voida said, “Hey, wait a minute.” Tom then looked “sharply” over his shoulder at Voida, threw down the bicycle, and ran away. Although Voida repeatedly ordered Tom to stop, he did not. Voida Depo. at 127; R. 103 at 1.
At this point, Voida noticed that the bicycle was fairly nice, and that she was in a neighborhood where property crimes, drug abuse, and alcohol abuse were common. Based on these facts, Voida now suspected that the bicycle was stolen. R. 103 at 6-7; Voida Depo. at 140. In addition, Tom had just fled from a law enforcement officer. Voida began to pursue him. Voida Depo. at 135; R. 103 at 6-7. She followed him for a few blocks, and over at least one fence. Eventually, Tom slipped on a patch of ice, allowing Voida to catch him. She kneeled on Tom and attempted to handcuff him. For approximately 25 seconds, they struggled violently, with Tom repeatedly hitting Voida‘s head on the concrete. Voida feared for her life and screamed for help. Witnesses heard her scream and saw some of the struggle. Tom ultimately broke free and continued his flight. Voida Depo. at 145-47; R. 103 at 2, 11-14; Briley Report at 7.
By this time, Tom had committed a felony—battery on a police officer,
The district court decided this case after the investigation was concluded. Cheryl Tom, the administratrix of Wayne Lee Tom‘s estate, had brought suit against Officer Voida, Indianapolis police chief Paul A. Annee, and the City of Indianapolis. In the two federal claims in her complaint, she claimed that the defendants violated the decedent‘s Fourth Amendment rights as protected through the Fourteenth Amendment to the United States Constitution.2 Voida allegedly violated those rights by seizing Tom without a reasonable suspicion or probable cause, and by employing excessive force in pursuing him and ultimately killing him. The district court granted the defendants summary judgment on these federal claims and dismissed the pendent state claims without prejudice.
As we see it, Voida made three distinct sets of decisions in her encounter with Tom: 1) first were Voida‘s decisions to press an encounter with Tom: when he was lying on the ground, she decided to approach him and ask if he was alright; when he refused to answer her questions, she decided to follow him slowly; and when he threw down the bicycle and fled, she decided to order him to stop, and then pursue him; 2) next was her decision, after catching up with him on the ice, to cuff him and seize him physically; and 3) last were her decisions to subdue him: when he escaped from the first physical confrontation, she decided to continue to pursue him, and when he rushed at her, in the midst of the second of two physical confrontations and after she had already fired one shot, she decided to fire again. The plaintiff argues that some of these actions violated Tom‘s constitutional rights and entitle her to damages in and of themselves. The plaintiff also argues that because some of these actions violated Tom‘s constitutional rights, Voida herself created the need for force, so that her ultimate decision to shoot Tom was tainted by prior unconstitutional acts. Appellant‘s Br. at 36-38; see Gilmere v. City of Atlanta, Georgia, 774 F.2d 1495, 1501-1502 (11th Cir. 1985) (when officer improperly beat the suspect-decedent and this improper use of official power created need for use of deadly force, officer could be held liable for shooting even if officer had “a moment of legitimate fear“), cert. denied, 476 U.S. 1115, 106 S. Ct. 1970, 90 L. Ed. 2d 654, 476 U.S. 1124, 106 S. Ct. 1993, 90 L. Ed. 2d 673 (1986). Because we hold that Voida did not violate Tom‘s constitutional rights at any point in this series of events, we need not distinguish between these two theories.
1. Voida‘s Decisions to Question and Follow Tom
The plaintiff argues that Voida created this entire incident by overreacting to circumstances which demonstrated little more than teen panic. According to the plaintiff, Voida should never have insisted on following Tom and continuing to ask him questions after he got off the ground and showed no need of help. Even if Voida‘s various decisions to question and follow Tom were unjustified, they did not constitute a “seizure” and, as a result, are not subject to any Fourth Amendment scrutiny. Voida‘s initial questioning of Tom was “a voluntary encounter initiated by non-coercive police questioning, requiring no suspicion at all.” United States v. High, 921 F.2d 112, 115 (7th Cir. 1990); see also Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 1879 n. 16, 20 L. Ed. 2d 889 (1968). Because Tom was completely free to leave this encounter, High, 921 F.2d at 115, Florida v. Bostick, --- U.S. ----, 111 S. Ct. 2382, 2386, 115 L. Ed. 2d 389 (1991), the Fourth Amendment was not implicated.
Hodari D. governs this case. Although Voida followed Tom slowly, ordered him to stop, and then followed him more quickly, she did not seize Tom until she overtook him on the ice and physically touched him. As a result, even though Voida was attempting to execute an investigatory stop, her acts do not need to be justified by reasonable suspicion, let alone probable cause.
2. The Attempted Cuffing
The most difficult issue in this case is whether Voida was justified in attempting to handcuff Tom after he fled from her attempted Terry stop. The plaintiff argues that Voida was attempting to arrest Tom, and that the district court thus erred by requiring Voida to have only a reasonable suspicion of criminal activity. Appellant‘s Br. at 23-24. The plaintiff also argues that Voida used excessive force in attempting to cuff Tom. Although this issue arguably raises some thorny questions, we affirm the district court on two alternative grounds.
A. The Cuffing Was Justified as Incident to an Investigatory Stop
The district court held that Voida‘s action was a justifiable attempt to enforce an investigatory stop. To this end, the district court first held that “[a]s a matter of law, dropping the bicycle and running are specific facts that would raise a reasonable suspicion of criminal activity” justifying the stop. Order at 12. Then, the district court found that the attempted cuffing was a reasonable means of executing the investigative stop. Order at 12-13. Finally, the district court assumed that because the attempted cuffing was reasonable, it did not convert the investigatory stop into a formal arrest. We agree with all three prongs of the district court‘s analysis.
The first question is whether Voida had a reasonable suspicion of criminal activity to justify stopping Tom. When Tom first saw Voida approaching, he immediately grabbed the bicycle. As he walked away, he glanced back at Voida again and again. Finally, after Voida had called out to him, he looked at her sharply, discarded the bicycle, and fled. Voida noticed that the bicycle was “fairly nice” and that she was in a high-crime neighborhood; she testified that at this point she suspected that the bicycle might have been stolen. We agree with the district court that this suspicion was reasonable. Yet the plaintiff seizes on Voida‘s admission that she did not suspect that Tom had committed any crimes before she saw him throw the bicycle down and flee. The plaintiff thus argues that Voida relied solely on Tom‘s flight in forming her reasonable suspicion, and that this is impermissible. But the plaintiff focuses on the wrong time frame. Voida‘s lack of earlier suspicions are not relevant in determining whether she had a reasonable suspicion at the time she made the decision to cuff him. In addition, the plaintiff cannot benefit from United States v. Sterling, 909 F.2d 1078, 1082 (7th Cir. 1990), which noted that “officers cannot use [ ] departure as the single additional event that ripens their preexisting concerns to the ‘founded suspicion’ that a Terry stop requires.”3 In Sterling, the police had indicated to the defendant that she was free to leave; the issue was whether departing could contribute to the officers’ formation of reasonable suspicion. In the present case, Tom did not simply depart; he threw down the bicycle and fled. And although the Supreme Court has not decided whether flight alone may support a finding of reasonable suspicion,4 flight is certainly a relevant and probative factor. See, e.g., United States v. Sharpe, 470 U.S. 675, 105 S. Ct. 1568, 1573 n. 3, 84 L. Ed. 2d 605 (1985) (evasive actions relevant in determining whether officers had reasonable suspicion); United States v. Cardona-Rivera, 904 F.2d 1149, 1153 (7th Cir. 1990) (same).
To answer these questions, we must evaluate whether Voida‘s attempt to cuff Tom was an objectively reasonable use of force in light of the totality of the circumstances. These circumstances include factors such as “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, 1871-72, 104 L. Ed. 2d 443 (1989). We believe that although Tom did not appear to be dangerous at this time, Voida‘s minimal use of force was reasonable under the circumstances. Tom had already disobeyed her repeated orders to stop. And he fell to the ground because he had slipped on the ice, not because Voida had touched him. Voida merely kneeled on Tom and tried to cuff him. There is no evidence in the record to suggest that this action was violent or threatening in any way; Voida merely tried to restrain Tom. Voida acted reasonably in attempting to handcuff a fleeing person about whom she had a reasonable suspicion of criminal activity. United States v. Taylor, 716 F.2d 701, 708-709 (9th Cir. 1983) (handcuffing during Terry stop justified when defendant “had disobeyed an order to raise his hands, and he made furtive gestures“); United States v. Purry, 545 F.2d 217, 220 (D.C. Cir. 1976) (handcuffing justified when “Purry attempted to frustrate further inquiry“).
Moreover, this reasonable attempt to restrain Tom did not convert the Terry stop into an arrest. Voida‘s attempt to handcuff Tom was a measured use of force, could have been brief, and was appropriate to accomplish the purposes of an investigatory stop.5 See United States v. Hensley, 469 U.S. 221, 105 S. Ct. 675, 684, 83 L. Ed. 2d 604 (1985) (detention was an investigative stop even though officer approached defendant‘s car with gun drawn and pointed in air); United States v. Glenna, 878 F.2d 967, 972-73 (7th Cir. 1989) (handcuffing does not necessarily convert Terry stop into arrest); Taylor, 716 F.2d at 709 (same). Tom‘s attempt to flee from her necessitated her attempt to restrain him. The plaintiff cannot complain that Officer Voida took extensive steps to investigate when Tom‘s own actions necessitated those steps. See United States v. Sharpe, 105 S. Ct. at 1577 (Marshall, J., concurring in judgment) (intrusive Terry detention justified by defendants’ evasive actions).6
B. Voida Had Probable Cause to Justify an Arrest
Even if Voida‘s attempt to restrain Tom was an arrest, we affirm the district court on an alternative ground. When Tom threw down the bicycle and fled, we believe, as did the district court, that Voida had a reasonable suspicion that Tom was engaged in criminal activity. And when Tom defied Voida‘s orders to stop and continued to flee in apparent panic, we believe that Voida had probable cause to arrest Tom for stealing the bicycle and for resisting a law enforcement officer. Put differently, Tom‘s continued flight from Voida ripened her reasonable suspicion into probable cause.
The plaintiff repeatedly argues that Voida placed Tom in this dilemma, and that by following him, Voida punished him for exercising his right not to respond to the investigatory stop. But the plaintiff mischaracterizes Tom‘s reactions. He did not listen to Voida‘s question and announce his refusal to respond to it. Nor did he calmly depart from her. Rather, he threw down his bicycle and fled from her, even after she had repeatedly ordered him to stop. Whether or not suspects have a right to refuse to respond to an investigative stop, a suspect‘s actual flight from an officer may certainly provide information to ripen an officer‘s preexisting suspicions into probable cause. Even Justice Brennan, one of the justices who has argued that a suspect in an investigative stop has a right to remain silent, see supra n. 8, has accepted the distinction between flight and a refusal to submit to more extensive questioning. In Kolender v. Lawson, 461 U.S. 352, 103 S. Ct. 1855, 1861, 75 L. Ed. 2d 903 (1983), Justice Brennan asserted in his concurrence that “States may not authorize the arrest and criminal prosecution of an individual for failing to produce identification or further information on demand by a police officer” when the officer has only a reasonable suspicion of criminal activity. To the contrary, police officers with a reasonable suspicion “must allow the person to leave after a reasonably brief period of time unless the information they have acquired during the encounter has given them probable cause sufficient to justify an arrest.” Id., 103 S. Ct. at 1863. “Of course,” Justice Brennan continued, “some reactions by individuals to a properly limited Terry encounter, e.g. violence toward a police officer, in and of themselves furnish valid grounds for arrest. Other reactions, such as flight, may often provide the necessary information, in addition to that which the officers already possess, to constitute probable cause.” Id. at 1863 n. 4 (emphasis added). A number of appellate decisions have held precisely that. In United States v. Morgan, 936 F.2d 1561, 1569 (10th Cir. 1991), cert. denied, --- U.S. ----, 112 S. Ct. 1190, 117 L. Ed. 2d 431 (1992), for example, the police followed the defendant‘s car and attempted a Terry stop at the curb based on their reasonable suspicion that he was involved in criminal activity. When the defendant exited the car, the officer said, “Just hold it right there” and “Don‘t run.” The defendant fled nevertheless. The court held that “the facts establishing the officer‘s reasonable suspicion combined with the furtive actions and flight of Mr. Morgan [ ] sufficiently support a finding of probable cause to arrest.” See also United States v. Bell, 892 F.2d 959, 967 (10th Cir. 1989) (reasonable suspicion ripened into probable cause when suspect being detained by narcotics agents “dropped his bag and ran down the concourse“), cert. denied, 496 U.S. 925, 110 S. Ct. 2618, 110 L. Ed. 2d 639 (1990); United States v. Martinez-Gonzalez, 686 F.2d 93, 100 (2nd Cir. 1982) (“The event that transformed the agents’ reasonable suspicion into probable cause was Martinez‘s own manifestation of guilt evidenced by his flight from the agents back into the apartment when the agents approached him to talk to him.“). Tom‘s uncomfortable glances toward Officer Voida, his abandonment of a fairly new bicycle in a high-crime area, his defiance of her order to stop, and his obvious determination to flee from any contact with her gave Voida probable cause to arrest him for stealing the bicycle. And once Tom defied Voida‘s orders to stop, she may also have had probable cause to arrest him for “resisting law enforcement,” in violation of
The plaintiff also argues that Voida used excessive force by pursuing Tom overzealously after their first physical encounter, and ultimately by shooting him. Voida was clearly justified in continuing to pursue Tom. By this time, she had more than probable cause to arrest Tom. He had actually committed crimes against her by fleeing from her,
Voida was also justified in shooting Tom. The plaintiff argues that the evidence is conflicting on two relevant points: whether Tom violently beat Voida, and whether Tom moved aggressively toward Voida after the first shot. Thus, the plaintiff suggests that Tom never did beat Voida, and that Tom was surrendering, not attacking, when he stretched his arms out toward Voida. In making this argument, the plaintiff claims that Voida did not adduce any evidence to support her claim that Tom beat her. Appellant‘s Br. at 15. Here the plaintiff distorts the record, ignoring considerable medical and testimonial evidence that entirely corroborated Voida‘s story.10 The report of the doctor who examined Voida after the incident noted the following injuries: a twisted and tender left arm, a scratched neck, hair pulled out, a 6 by 3 centimeter lump on her head, a crimson and swollen right cheek, a crimson and swollen right earlobe and cartilage, a bruise on her back, bruises on her right tibia, and an effusion on her right knee. Plaintiff‘s Ex. B. These injuries are consistent with Voida‘s statements regarding the two fights. In addition, an officer who investigated the entire incident interviewed five witnesses to various portions of the fight between Voida and Tom. According to the officer‘s report, some of the witnesses “saw the suspect kicking Officer Voida in the head, face and body” during the first physical confrontation. Other witnesses saw “the suspect ... striking the officer in the face ... and ... kicking Officer Voida” during the second physical confrontation. Briley Report at 7. In suggesting that Voida fabricated her story, the plaintiff completely ignores these witnesses.
The plaintiff also suggests that Tom‘s arms were outstretched in surrender, not in attack, and that therefore he did not pose a threat of serious bodily injury at the time Voida fired the second shot. But this is pure speculation; the plaintiff simply suggests that “Most people do not attack someone for the first time after they have been shot at, especially when they are unarmed.” Appellant‘s Br. at 16. The plaintiff had no witness who could testify that Tom was surrendering, no scientific evidence that Tom was retreating from Voida at the moment she shot him, and, of course, no evidence from the decedent himself. Based on Voida‘s injuries and testimony, the district court did not err in concluding that Tom posed a threat to Voida.
At oral argument, the plaintiff argued that her lack of affirmative evidence should not be dispositive of this issue; she relies instead on “inherent contradictions” in Voida‘s testimony. Despite the plaintiff‘s repeated reference to these contradictions, her brief does not illustrate any major discrepancies. Voida made four separate statements about the incident which are in the record: to the doctor who examined her injuries just after the incident, to the police officer who investigated the incident, to the Firearms Review Board, and in her deposition for this case. We find these statements to be consistent. To the extent that there are minor ambiguities in Voida‘s statements, these ambiguities do not relieve the plaintiff of the burden of presenting affirmative evidence to support her case. See Branion v. Gramly, 855 F.2d 1256, 1263 (7th Cir. 1988) (“Disbelief is not evidence of the opposite of the thing discredited“), cert. denied, 490 U.S. 1008, 109 S. Ct. 1645, 104 L. Ed. 2d 160 (1989); Zayre Corp. v. S.M. & R. Co., 882 F.2d 1145, 1148 (7th Cir. 1989).
Finally, because Voida did not violate Tom‘s constitutional rights, there is no basis for liability against the other defendants either. City of Los Angeles v. Heller, 475 U.S. 796, 106 S. Ct. 1571, 1573, 89 L. Ed. 2d 806 (1986) (“If a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point.“).
Conclusion
In sum, none of Voida‘s actions prior to her physical contact with Tom is subject to any scrutiny under the Fourth Amendment. Further, Voida was justified in attempting to handcuff Tom because she then had a reasonable suspicion that he was engaged in criminal activity. In addition, Tom‘s continued flight from her, even after she had ordered him to stop, had given her probable cause to arrest him. Voida was justified in following him after the initial physical encounter because by this time he had committed at least two crimes. And she was ultimately justified in using deadly force because Tom had already inflicted serious bodily injury on her and threatened to continue doing so. Accordingly, we AFFIRM the district court‘s grant of summary judgment to the defendants.