Marlo MCDOWELL, Plaintiff-Appellant, v. VILLAGE OF LANSING, et al, Defendants-Appellees.
No. 13-3423.
United States Court of Appeals, Seventh Circuit.
Decided Aug. 18, 2014.
764 F.3d 762
Argued April 22, 2014.
Gregory S. Mathews, Attorney, Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C., Chicago, IL, for Defendants-Appellees.
Before POSNER, WILLIAMS, and TINDER, Circuit Judges.
TINDER, Circuit Judge.
Marlo McDowell appeals the summary judgment dismissal of his suit against the Village of Lansing and Officer Michael Rodriguez, in which he alleged, inter alia, that Officer Rodriguez violated his substantive due process rights by rendering him vulnerable to a blow to the face by a third party. We hold that Officer Rodriguez‘s conduct, even according to McDowell‘s depiction of the record, was not sufficiently egregious to qualify as a constitutional tort or to vitiate his state-law immunity.
I. Background
On summary judgment we view the facts in the light most favorable to the nonmoving party. Williams v. City of Chicago, 733 F.3d 749, 752 (7th Cir. 2013). Of course, Officer Rodriguez disputes much of the account that follows, but McDowell is entitled to every reasonable inference that supports his claims.
McDowell alleges that, after working a night shift on June 25, 2011, he met three friends at Bottoms Up, a local restaurant and bar located in unincorporated Cook County, Illinois. They stayed there for about a half hour, until the bar‘s 4:00 a.m. closing time. McDowell and his companions then exited the front door, but they were confronted by a grоup of four or five other individuals, who were apparently looking for trouble. (One of the few things we know about this latter group is that one of them happened to be an off-duty police officer.) The opposing sides quickly came
Michael Rodriguez, an on-duty police officer for the Village of Lansing, was dispatched to the scene. (Lansing is a nearby suburb of Chicago that lies within Cook County.) Officer Rodriguez found McDowell running in circles around parked cars, trying to get away from at least three men who were chasing him. Rodriguez exited his squad car, approached McDowell with his Tаser drawn and pointed at him, and ordered everyone to get on the ground. The chase immediately stopped and everyone promptly lay down—everyone that is, except one man named Morandi, who had been one of McDowell‘s antagonists in the fight.
While McDowell lay prоne ten feet in front of Officer Rodriguez, looking up at him with his hands behind his head, Morandi began to slowly walk towards McDowell. When Morandi started his approach, he and McDowell were about 15 to 20 feet apart. A witness on McDowell‘s side of the fight testified that he thought at the time that Morandi “was about to do something.” Officer Rodriguez did not issue a second warning for Morandi to stop and get on the ground, nor did he point his Taser at him. Morandi kept coming. About 15 seconds after McDowell had first lain down, Morandi got within striking distance and kicked him in the face.
McDowell has described the kick as a strong blow with a slow, deliberate wind-up, almost like a placekicker striking a football. The force of the impact broke his jaw, which required surgery. That was the only reported injury he suffered during the incident. McDowell further alleges that after the attack Officer Rodriguez failed to handcuff Morandi, who simply sat down of his own volition. He also claims that Officer Rodriguez did not request an ambulance for him. In fact, he complains that, after officers from the Cook County Sheriff‘s Office arrived, he was handcuffed before being transported to a hospital.
McDowell sued Officer Rodriguez under
II. Discussion
We review a district court‘s decision to grant summary judgment de novo, and like the district court we grant McDowell every reasonable inference in his favor. Kvapil v. Chippewa Cnty., Wis., 752 F.3d 708, 712 (7th Cir. 2014). We agree that McDowell has failed to create a legitimate question of material fact as to wheth-
Officer Rodriguez disputes thе merits of McDowell‘s claim and also presents a defense of qualified immunity. We need not reach the qualified immunity defense however, because resolving the case on the merits will be simple enough. See Pearson v. Callahan, 555 U.S. 223, 236 (2009). McDowell‘s constitutional claim is straightforward: the government constrained his liberty and made him more vulnerable to attack, thereby setting the stage for his injury. Officer Rodriguez himself testified that he had “detained” McDowell before Morandi kicked him.
In pressing his substantive due process claim, McDowell invokes the state-created danger doctrine. For a plaintiff to succeеd on a theory of state-created danger, (1) “the state, by its affirmative acts must create or increase a danger” to him, (2) “the failure on the part of the state to protect an individual from such a danger must be the proximate cause of [his] injury,” and (3) “the state‘s failure to proteсt [him] must shock the conscience.” King ex rel. King v. E. St. Louis Sch. Dist., 189, 496 F.3d 812, 818 (7th Cir. 2007). Deciding exactly what qualifies as an “affirmative act” that “shock[s] the conscience” has proven difficult, and we have recently attempted to simplify the governing standard. See Slade v. Bd. of Sch. Dirs. of City of Milwaukee, 702 F.3d 1027, 1033 (7th Cir. 2012) (“Shouldn‘t it be enough to say that it violates the due process clausе for a government employee acting within the scope of his employment to commit a reckless act that by gratuitously endangering a person results in an injury to that person?“). Regardless of the precise wording, the Supreme Court has made it clear that mere negligence is not sufficient to support a substantive due process claim. Cnty. of Sacramento v. Lewis, 523 U.S. 833, 848-49 (1998). Nor is gross negligence. Archie v. City of Racine, 847 F.2d 1211, 1219-20 (7th Cir. 1988) (en banc). Deliberate indifference to a person‘s welfare may be sufficient to give rise to a constitutional violation, depending on the circumstances. Lewis, 523 U.S. at 851.
McDowell has set forth a plausible case satisfying the first two of thе King requirements. It is an open question whether McDowell would have been better off had Officer Rodriguez never showed up, and McDowell were left to take his chances with the men chasing him around the parking lot. But given that he ended up with a broken jaw, a reasonable jury might grant him the benefit of the doubt on that question. More to the point, once Officer Rodriguez arrived on the scene, he allegedly committed an affirmative act—detaining McDowell while threatening people were around him—that rendered him more vulnerable to Morandi‘s kick. According to McDowell‘s version of events, Officer Rodriguez could have chosen a different course of action that likely would have prevented his injury.
However, nothing McDowell alleges approaches the level of egregious conduct necessary to violate the substantive guarantees of Fourteenth Amendment. Officer Rodriguez arrived on scene alone; he had no partner or backup to help him. The incident occurred at night. Officer Rodriguez was significantly outnumbered by the four belligerents that he saw, and he did not know if others were involved. He did not know which of the men were hostile
In light of those circumstances, we conclude that Officer Rodriguez did not disregard a known or obvious risk so much as he made a difficult decision that balanced legitimate competing dangers, both to himself and the men he detained. Indeed, it is not clear what Officer Rodriguez should have done differently to avoid McDowell‘s injury. Certainly, he might have paid more attention to Morandi, and issued anоther warning for him to stop (assuming McDowell is correct that no second warning was issued). But that would have afforded other suspects the opportunity to get up while the officer was preoccupied, and in any event it likely would not have made a difference. Once Morandi disobeyed his first command, simply repeating the order might actually have undermined Officer Rodriguez‘s authority. He could have tased Morandi, but that might have exposed him to attack from the other suspects. Physically positioning himself between Morandi and McDowell would have been a particularly bad idеa, because he then would necessarily be turned away from one (or both) of them. And of course, encouraging McDowell to flee or defend himself would have been absurdly irresponsible. Officer Rodriguez had only a matter of seconds to decide among these and many other oрtions. Even if he chose poorly—and we express no opinion on that point—his snap judgment did not rise to the level of a constitutional tort.
The time frame involved is particularly important when judges scrutinize law enforcement decisions resulting in injury. The Supreme Court has imposed an exacting standard on plaintiffs seeking to cast a swift, emergency police decision as an infringement of substantive rights. “[W]hen unforeseen circumstances demand an officer‘s instant judgment, even precipitate recklessness fails to inch close enough to harmful purpose to spark the shock” of conscience necessary for a substantive due process violation. Lewis, 523 U.S. at 853. The Court in Lewis therefore held that “high-speed chases with no intent to harm suspects physically or to worsen their legal plight do not give rise to liability under the Fourteenth Amendment.” Id. at 854. Although this case does not involve a high-speed chase, this court has expanded the principle to encompass other emergency situations. In Carter v. Simpson, 328 F.3d 948, 952 (7th Cir. 2003), we held that “in emergency situations (such as high-speed chases) ... conduct ‘shocks the conscience’ only if there was intent to cause harm.” Carter involved a vehicle collision as an officer responded to an emergency call. In Schaefer v. Goch, 153 F.3d 793, 798 (7th Cir. 1998), we applied Lewis in the context of a shooting in the line of duty. Id. (“The sine qua non of liability in cases analogous to high-speed chases, therefore, is a purpose to cause harm.“) (citation and quotation marks omitted). Other circuits have reached the same conclusion. See Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010) (“[W]here a law enforcement officer makes a snap judgment because of an escalating situation, his conduct may only be found to shock the conscience if he acts with a purpose to harm unrelated to legitimate law enforcement objectives.“). Likewise, it is undisputed that Officer Rodri-
McDowell has asserted some additional allegations regarding the officer‘s conduct after he was injured. He claims that Morandi was not handcuffed but that he was, and that Officer Rodriguez never called for an ambulance. However, there is no evidenсe that this alleged conduct aggravated McDowell‘s injury or worsened the situation in any way. Moreover, nothing in the record suggests that Officer Rodriguez knew or should have known how badly McDowell was injured, or that he required surgery. Other law enforcement officers and emergency responders еventually arrived at the scene, so the manner in which McDowell was transported to the hospital does not shed much light on Officer Rodriguez‘s state of mind in the moments before the kick. These additional allegations do not help McDowell.
By the same token, McDowell‘s state-law claims must fail as well. In Moran v. City of Chicago, 286 Ill. App. 3d 746, 222 Ill. Dec. 112, 676 N.E.2d 1316 (1997), the Illinois Appellate Court dismissed a suit in which a participant in an altercation injured another long after the police arrived. The court found that, before the plaintiff sustained any injury, “the [officers] stopped the altercation, separated the сombatants, and attempted to question them. At the time the plaintiff was injured, the defendants were investigating the matter. These actions do not show indifference or willful and wanton conduct.” Id., 676 N.E.2d at 1323. By comparison, Officer Rodriguez was alone and had no chance to investigate the incident before Morandi struck. There is no evidence that he wanted McDowell to be injured or was indifferent to what happened to him. Indeed, Officer Rodriguez arrived on scene, drew his Taser, and warned everyone to get on the ground in order to protect McDowell and others. “Wilful and wanton conduct, as contemplated in [the Tort Immunity Act], consists of more than mere inadvertence, incompetence, or unskillfulness.” Geimer v. Chi. Park Dist., 272 Ill. App. 3d 629, 208 Ill. Dec. 891, 650 N.E.2d 585, 592 (1995). McDowell has failed to allege anything more than that. Because Officer Rodriguez‘s actions were in no way willful or wanton, he and the Village enjoy immunity from McDowell‘s state-law claim.
III. Conclusion
We are not competent to decide whether Officer Rodriguez‘s actions represent good police work, and even if we were, we lack the factual record to make such a determination. We are confident, however, that his conduct did not violate McDowell‘s constitutional rights, and was not willful or wanton. The decision of the district court is AFFIRMED.