*1 In the
United States Court of Appeals For the Seventh Circuit
No. 00-1139
Victor R. McNair and Tre K. McNair, Plaintiffs-Appellants,
v.
Sean Coffey,
Defendant-Appellee.
On Remand from the
Supreme Court of the United States.
Submitted August 15, 2001--Decided January 29, 2002 Before Cudahy, Coffey, and Easterbrook, Circuit Judges.
Easterbrook, Circuit Judge. Frazell v.
Flanigan,
1996), held that, "once a jury has
determined under the Fourth Amendment
that the officer’s conduct was
objectively unreasonable, that conclusion
necessarily resolves for immunity
purposes whether a reasonable officer
could have believed that his conduct was
lawful." Our initial decision in this
case followed Frazell and concluded that
a jury verdict in plaintiffs’ favor on
their claim that defendant used excessive
force in arresting them precluded any
possibility of qualified immunity for the
arresting officer. McNair v. Coffey, 234
F.3d 352 (7th Cir. 2000). After Saucier
v. Katz,
consideration.
Plaintiffs contend that we should maintain our position despite that decision, but we conclude that it requires a change in outcome as well as analysis.
Officer Coffey had probable cause to believe that the McNair brothers had not *2 paid parking tickets, and he activated his cruiser’s lights to pull them over.
An arrest on this basis was proper. See
Whren v. United States,
surrendering, but this reason is not
relevant; people ordered to stop (on
probable cause to arrest) must halt
immediately; they cannot make their own
decisions about when and where they will
surrender. See Dye v. Wargo,
Berry,
Because it was dark (after 5 p.m. on December 20), the neighborhood posed risks, and the McNairs did not immediately stop, Coffey called for backup. Given the risks entailed even in ordinary traffic stops, see Uniform Crime Reports: Law Enforcement Personnel Table 18 (2000) (94 officers killed in traffic stops between 1990 and 1998), this was a sensible decision. When the McNairs finally stopped, they were surrounded by eight squad cars and told to get out with their hands up; many officers leveled weapons at the McNairs. But they were not roughed up; matters were handled peaceably. Victor McNair (the driver) was issued citations for operating a vehicle with a suspended registration and for failing to stop when directed; both McNairs were released within an hour. The jury determined that Officer Coffey violated the fourth amendment by arranging for a show of force that was needlessly frightening; each plaintiff was awarded $5,000 to compensate for the shock and indignity of the situation.
Neither in the district court nor on appeal did Coffey take issue with the jury’s verdict; this uncontested finding, coupled with the holding of Frazell, led to the conclusion that Coffey could not receive qualified immunity.
According to Saucier, the first question
whenever a public official asserts
qualified immunity must be whether that
official violated the Constitution at
*3
all.
Creighton,
We assume that the jury resolved all factual disputes in the McNairs’ favor.
Juries are not authorized, however, to determine the substance of the Constitution. Taken in the light most favorable to the verdict, the record shows an over-the-top response by the police department as an entity: too many cars, too many gun muzzles on display. It does not show that Officer Coffey directed this response or controlled the conduct of the other officers at the scene; to the extent the record speaks to the question, it shows that Coffey did no more than radio for backup. (He denied at his deposition having any control over the number of cars that would be sent or the other officers’ conduct when they ar rived, and the jury was not asked to determine whether this answer was truthful.)
Coffey was entitled to support from other police; the McNairs do not even argue that the fourth amendment requires *4 all arrests to be made without assistance. If the policy of the police department were to display or use excessive force, then the McNairs might have a claim under Monell v. New York Department of Social Services, 436 U.S.
658 (1978). But they do not argue that the department had such a policy, and Fitchburg, Wisconsin, the unincorporated area near Madison that employed Officer Coffey, has not been made a defendant.
Thus only Coffey’s actions matter, and with respect to these the most that could be said (taking all of the evidence in the light most favorable to the verdict) is that Coffey recognized that many other officers might answer his call, and that he did nothing to prevent them from surrounding the McNairs, drawing their weapons, and otherwise displaying force that under the circumstances was intimidating and frightening.
Yet nothing in the fourth amendment specifies how many officers may respond to a call. The number of officers is not independently a "seizure" of any kind.
The McNairs were eventually stopped, and
thus seized, compare California v. Hodari
D.,
Inyo County,
There remains the possibility that a seizure reasonable at the outset may become "unreasonable" because implemented in a needlessly frightening manner. One must be careful of equating fright- inducing aspects with "unreasonableness," however. That approach comes
uncomfortably close to overlaying a shocks-the-conscience standard of substantive due process on the objective standard of the fourth amendment. We did that in Gumz v. Morrissette, 772 F.2d 1395 (7th Cir. 1985), but overruled Gumz two years later after concluding that fourth amendment analysis should depend on an objective assessment of the officers’ conduct, rather than a subjective assessment of the suspect’s *5 reaction to that conduct. See Lester v.
Chicago,
Accord, Graham v. Connor,
Viewing matters through the objective
reasonableness standard, we conclude
that, even taking the record in the light
most favorable to the McNairs, a jury
could not properly have found that
Officer Coffey personally behaved
unreasonably. Good practice may have
called for sending fewer cars, the better
to maintain patrol coverage throughout
the jurisdiction, and good community
relations may counsel leaving revolvers
in their holsters unless necessary. But
the Constitution does not displace state
and local governments as the source of
wise police practices, and it certainly
does not fasten liability on individual
officers who call for aid whenever too
many colleagues respond. Just as police
may order occupants out of their vehicles
to promote safety in a traffic stop, see
Pennsylvania v. Mimms,
1997); Wilkins v. May,
2000).
Our point is not that Coffey and the
other officers necessarily behaved
"reasonably" in the tort sense. State law
might or might not have afforded the
McNairs some remedy. Our point, rather,
is that the fourth amendment does not
duplicate the tort of negligent
infliction of emotional distress, a
source of civil liability developed at
common law long after the Constitution’s
adoption. The Supreme Court has held that
this tort should not be engrafted onto
statutes enacted early in the last
century. See, e.g., Consolidated Rail
Corp. v. Gottshall,
Providian Financial Corp.,
authoritative discussion of excessive
force, repeatedly says or assumes that
there cannot be excessive force without
some force, referring variously to
"physically abusive governmental
conduct,"
Although we do not foreclose the possibility that the circumstances of an arrest could become "unreasonable" without the application of physical force, nothing in the circumstances of this case approaches that line, so it is unnecessary to determine where it may be located. It is enough to say that a reasonable officer in Coffey’s position *7 would not have understood that what he was doing violated the McNairs’ rights under the fourth amendment and therefore cannot be required to pay damages. The district court reached this conclusion also, and its judgment is
affirmed.
CUDAHY, Circuit Judge, concurring. As
the majority points out, Saucier v. Katz,
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," Slip Opinion, at 7, 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.’" Slip Opinion, at 5. 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 *8 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 (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 seizedactually 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,
. in some way restrained the liberty of a
citizen.’") (citing Terry v. Ohio, 392
U.S. 1, 19, n.16 (1986)); INS v. Delgado,
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 (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 ("[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 *9 of force is constitutionally excessive.
See Gumz v. Morrissette,
constitutionally excessive), overruled on
other grounds by Lester v. City of
Chicago,
1997) (extending Gumz’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
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.
FOOTNOTE
/1 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
COFFEY, Circuit Judge, concurring in judgment and dissenting in part./1
I. INTRODUCTION
This case has an extended procedural history. Two African-American brothers, Victor and Tre McNair, brought suit in the Circuit Court of Dane County in February 1999, alleging that Officer Sean Coffey of the Fitchburg Police Department practiced racial discrimination; committed the torts of assault, battery, and false imprisonment; and deprived them of their Fourth Amendment rights by initiating a traffic stop of their vehicle on December 20, 1997. After Coffey removed this case to federal court, the McNairs voluntarily dismissed their claim of discrimination, and Coffey thereafter moved for summary judgment on the claim of excessive force, raising the defense of qualified immunity./2 The qualified immunity motion was denied, and this case went to trial in early November 1999. On two occasions during trial, Coffey again raised the defense of qualified immunity--in a motion for directed verdict following the plaintiffs’ case/3 and in a motion for directed verdict following the close of all evidence at the trial/4--arguing that the facts taken in the light most favorable to the McNair brothers were insufficient to sustain a jury’s finding that he violated the Fourth Amendment and could not have reasonably believed that his conduct was lawful. These motions also were denied. Following five hours of deliberation, the jury found in favor of Officer Coffey on the claims of assault, battery, and false imprisonment, but found in favor of the McNairs on their claim of excessive force. The jury awarded each of the plaintiffs $5,000, for a total of $10,000 in compensatory damages.
Seven days after the jury verdict, Coffey filed
a motion to alter or amend the judgment, again
raising the issue of qualified immunity--this for
the fourth time./5 The trial judge granted the
motion. The McNairs appealed to the U.S. Court of
Appeals for the Seventh Circuit, and a panel of
the court reversed the district judge, quoting
and following the holding of Frazell v. Flanigan,
*11
In the penultimate sentence of its opinion, the majority in this case overturns the decision in McNair I and seems to hold that Officer Coffey is entitled to qualified immunity because "a reasonable officer in Coffey’s position would not have understood that what he was doing violated the McNairs’ rights" under the Fourth Amendment. The majority, by drawing attention to whether Coffey believed he was acting within the boundaries of the law, suggests by its very language that Coffey is entitled to qualified immunity because the law was unsettled at the time of his conduct, and thus implies that Coffey did violate the Fourth Amendment.
I agree with the majority’s decision only insofar that the jury’s verdict must be set aside. However, I believe, unlike the majority, that the Supreme Court has made it clear in their remand and directed us to undertake a thoroughreview of the record. Upon review, I would dismiss this case on the basis that the McNairs failed to establish that Officer Coffey’s conduct violated their constitutional rights, despite the jury verdict to the contrary. I am convinced, as a matter of law, that the McNairs failed to produce sufficient evidence to warrant submitting their Fourth Amendment claims to the jury in the first instance. We in McNair I should *12 have ended our inquiry there. Accordingly, while I concur in the judgment of this court, my decision rests on grounds other than those stated by the majority. I am forced to write separately because I believe that our prior decision in McNair I, as well as the majority opinion, fails to recite facts sufficient to sustain our holding, misstates important aspects of the record, and misconstrues relevant case law concerning the extent of the Fourth Amendment’s protection against unreasonable seizures.
Therefore, I must respectfully dissent from certain portions of the majority opinion.
My concurrence and dissent addresses two issues. First, in Part II of this opinion, I analyze the McNairs’ excessive force claim in light of the rich factual record, which establishes that Officer Coffey and other patrolmen in the same position would have reasonably believed that the McNairs were a risk to the officers as well as the general public. I explain that Officer Coffey cannot personally be held responsible for the display of force made by the law enforcement officers from Fitchburg or the other jurisdictions, who responded to his call for backup assistance, any more than he would be responsible for a misdeed by one of the officers while on the scene, because the actions of these other patrolmen were beyond his control. I then conclude that, in any event, this simple display of force was a reasonable response to the potentially dangerous safety risk posed by the McNairs. Accordingly, I am convinced that the display of force and the subsequent seizure of the McNair brothers was accomplished within the parameters of the United States Constitution and not in violation thereof.
Then, in Part III, I respectfully dissent from
the majority’s suggestion that plaintiffs
alleging excessive force cannot prevail on a
Fourth Amendment claim if they "are not victims
of physically abusive governmental conduct."/6
Ante at 7. I am of the opinion that this is an
overbroad statement of the law. I agree with the
proposition that, if a suspect is apprehended
without suffering any physical injuries, it is
likely that the police acted reasonably. However,
as I explain more fully later in this opinion,
post at 40-41, at least two cases from this
Circuit--including one written by the author of
the majority opinion--support the proposition
that a seizure resulting from an alleged
excessive display of force, standing alone, might
possibly violate the Fourth Amendment. See United
States v. Jones,
II. THE MCNAIRS’ FOURTH AMENDMENT CLAIM
"Qualified immunity is ’an entitlement not to
stand trial or face the other burdens of litigation.’"
Saucier,
As noted previously, on three separate occasions prior to the jury verdict--(1) in a motion for summary judgment; (2) in a motion for directed verdict following the plaintiffs’ case; and (3) in a motion for directed verdict following the close of all evidence--Coffey raised the defense of qualified immunity, arguing that the facts taken in the light most favorable to the McNair brothers were insufficient to sustain a jury’s finding that he violated the Fourth Amendment and could not have reasonably believed that his con duct was lawful. The district court denied each of these motions only to grant Coffey’s post- verdict Motion To Alter Or Amend Judgment on the basis that "a reasonable police officer could have believed that the high risk procedure Defendant Officer Coffey used was lawful based on the law [in existence] when force was [displayed] in this case." (Doc. No. 103 at 6.) As explained previously, although Coffey’s motion for summary judgment, based on qualified immunity, explicitly argued that, "if the court were to rule that Officer Coffey’s actions may somehow have violated the plaintiffs’ Fourth Amendment rights, it could not be fairly said that a reasonable police officer in his position would have known that his conduct was forbidden by law," (Doc. No. 34 at 15), the trial judge denied the motion on the basis that the presence of "factual disputes concerning the defendant’s conduct" precluded summary judgment. (Doc. No. 55 at 8.) Yet the law was equally settled before and after trial; likewise, my review of the record convinces me that the proposed finding of facts submitted by Coffey at summary judgment, and undisputed by the McNairs, were identical to the material facts developed at trial./7 It is difficult, therefore, to reconcile the judge’s decision before trial to deny the motion for qualified immunity with his decision after trial to grant the motion for qualified immunity notwithstanding the jury verdict. Indeed, if we are to preserve the fundamental benefit that qualified immunity confers on governmental officials performing the difficult task of navigating the hazy borders between permissible and impermissible activity, i.e., avoiding the burdens of needless litigation and trial, we are compelled to observe that the trial judge erred by failing to grant Officer Coffey’s motion for *14 summary judgment and dismiss this case more than two years ago. See Egebergh v. Nicholson, 272 F.3d 925, 927 (7th Cir. 2001) (police officers "are entitled to immunity before trial . . . if the facts are construed as favorably to the plaintiff as the record permits, [and] they still are entitled to immunity-- in which event they shouldn’t be put to the burden of a trial that might cast the facts in a light unnecessarily more favorable to them.")
A. The Issue and Standard of Review
After granting Officer Coffey’s writ of
certiorari, the Supreme Court vacated our prior
opinion and remanded this case "for further
consideration in light of Saucier v. Katz, 121
S.Ct. 2151 (2001)."
Saucier, in turn, states as follows:
In a suit against an officer for an alleged
violation of a constitutional right, the
requisites of a qualified immunity defense must
be considered in proper sequence. . . . Qualified
immunity is an entitlement not to stand trial or
face the other burdens of litigation. . . . A
court required to rule upon the qualified
immunity issue must consider, then, this
threshold question: Taken in the light most
favorable to the party asserting the injury, do
the facts alleged show the officer’s conduct
violated a constitutional right? This must be the
initial inquiry. In the course of determining
whether a constitutional right was violated on
the premises alleged, a court might find it
necessary to set forth principles which will
become the basis for holding that a right is
clearly established. This is the process for the
law’s elaboration from case to case, and it is
one reason for our insisting upon turning to the
existence or nonexistence of a constitutional
right as the first inquiry. The law might be
deprived of this explanation were a court simply
to skip ahead to the question of whether the law
clearly established that the officer’s conduct
was unlawful in the circumstances of the case.
Thus, Saucier directs us to ask whether
Coffey’s conduct, viewed in the light most
favorable to the jury verdict, rises to the level
of a Fourth Amendment violation as a matter of
constitutional law. Only if this initial question
is answered in the affirmative are we to consider
whether a law enforcement officer in Coffey’s
position on December 20, 1997 would,
nevertheless, have reasonably believed that his
conduct was lawful./8 Id. at 2156. Yet the
*15
majority opinion fails to answer the first
question that Saucier requires us to ask. The
majority contends that Coffey did not "take issue
with the jury’s verdict" and, therefore,
"concedes that his conduct was unconstitutional."
Ante at 3. This statement is confusing. I wish to
emphasize that on three separate occasions prior
to the verdict--(1) in a motion for summary
judgment; (2) in a motion for directed verdict
following the plaintiffs’ case; and (3) in a
motion for directed verdict following the close
of all evidence--Coffey did argue that his
display of force was protected by the Fourth
Amendment, even if all of the McNairs’ evidence
was accepted as true. Thus, because I am: (1)
mindful of the fact that Coffey has adequately
preserved his right to challenge the legal
sufficiency of the jury verdict against him; (2)
cognizant of our discretionary authority to
review the entire record; (3) obligated by
Saucier to clarify the boundaries of the law by
considering in every instance whether "the facts
alleged show the officer’s conduct violated a
constitutional right,"
Indeed, although the district court dismissed
this case on the basis of qualified immunity, I
believe the more proper course in this instance
is to set aside the verdict on the independent,
clear, and more compelling basis of the
insufficiency of the evidence. Qualified immunity
is an appropriate and accepted method for
disposing of cases prior to trial, rather than
after trial, because "the denial of a qualified
immunity defense is the only procedural vehicle
a defendant can use to bring to us at the
pretrial stage, instead of after final judgment,
any question relating to the merits." Hartley v.
Parnell,
Thus, it is a non-sequitur for us at the late
*16
stage of this litigation to cloak our decision in
the language of immunity. When considering
Coffey’s post-verdict motion, I am convinced that
we should use the same legal analysis as other
cases, with the initial inquiry being whether
there were sufficient facts to support the
verdict rendered, in light of the applicable law.
I agree that if the facts substantiated the view
that Coffey violated the Constitution, then the
proper recourse would be through the doctrine of
immunity. But because his actions were reasonable
in the first instance, he is entitled to a ruling
that affirmatively characterizes his conduct as
lawful and prudent, without any discussion of a
defense that implies the existence of a valid
antecedent claim against him. See Hartley, 193
F.3d at 1273-74 (Hoeveler, J., concurring). Based
on the law of the land and my review of the
evidence adduced at trial, I agree with the law
enforcement officer that this case should never
have gone to trial and, furthermore, should never
have been submitted to the jury. See Egebergh,
Our inquiry is whether the record contains a
legally sufficient evidentiary basis from which
a jury could have reasonably derived its verdict.
In doing so, we must consider the entire record,
without reweighing the evidence or judging the
credibility of the witnesses. Tice v. Lampert
Yards, Inc.,
B. Verdict Forms and Interrogatories in Qualified Immunity Cases
Before reviewing the evidence, however, I must
*17
pause and comment upon how defense counsel’s
unorthodox strategy prejudiced Officer Coffey and
complicated our review of this case on appeal. In
cases of this nature, defense counsel is
responsible for timely preparing and presenting
proper interrogatories for the trial judge to
submit to the jury. Sadly, defense counsel failed
to supply the trial judge with instructions and
specific factual interrogatories related to the
material contested facts presented at trial. See
Fed. R. Civ. P. 49(b). Instead, both parties took
the easy but fatal way out (to the detriment of
the jury’s deliberative process) and presented
the trial judge with only a general verdict form
containing the following question: "Did Defendant
Sean Coffey use excessive force during the course
of the December 20, 1997 traffic stop of
Plaintiff Victor McNair [and Plaintiff Tre
McNair], which deprived [them] of [their] Fourth
Amendment right[s] to be free from unreasonable
seizure?" Counsel neglected to object to the
verdict form’s amorphous question, which
improperly invited the jury to usurp the role of
the court and resolve constitutional issues in
the form of a legal conclusion devoid of
reference to specific facts, i.e., what
constitutes the precise amount of force that may
be displayed in response to the circumstances
surrounding the safety risk Coffey
reasonablybelieved to have been posed by the
McNairs to the police and the public at large.
See McGee,
It is a basic premise of our legal system that juries are the triers of fact only; it is for the judge, not the jury, to interpret the law and to draw the line in the sand separating conduct that is protected and unprotected under the Constitution. In other words, the plaintiff must convince the court that the facts found by the jury are sufficient to trigger the protections of the Fourth Amendment as a matter of law. See id. at 735-36.
This case presents an issue similar to that in McGee, which involved the Due Process Clause of the Fourteenth Amendment. Plaintiff McGee alleged a due process violation when a building inspector posted a sign declaring McGee’s house uninhabitable without having previously offered him the right to participate in a hearing. We found error with the trial court’s limited jury instruction that McGee was entitled to damages if the jury was convinced that he was deprived of his property without due process of law. See id. at 735 ("[t]he jury was instructed that McGee should prevail . . . if he proved . . . [t]hat the alleged deprivation occurred without due process of law.") We held that this instruction was impermissible because it "essentially asked *18 the jury to decide what process McGee was due in regards to the alleged deprivation." Id. Jurors without the benefit of legal education, training and experience are not expected to be qualified to interpret a constitutional question dealing with the precise substantive guarantees of the Due Process Clause. We stated that "[w]hat process is due under the Constitution is a legal question that the judge should resolve. The judge then should put to the jury any factual questions relating to the application of that standard. The jury’s conclusion that McGee did not receive ’due process of law’ does not inform our analysis of what process was due." Id.
Certainly, the reasoning of McGee applies to
the facts in the case before us. During the
trial, the McNairs raised a constitutional issue,
alleging an excessive display of force. At the
close of the McNairs’ case, upon proper motion
and with the aid of respective counsel, the trial
judge was obligated to initially inquire whether
the plaintiffs produced any facts sufficient to
allow a jury to determine whether Patrolman
Coffey violated their Fourth Amendment rights.
Before sending the case to the jury, and after
taking into consideration the facts and the law
applicable thereto, the attorneys were obligated
to submit, and the court was likewise obligated
to present the jury with special interrogatories
that would have then allowed the court to: (1)
understand what precisely occurred on December
20, 1997; and (2) determine, in light of those
particular findings and the applicable law,
whether such a violation in fact occurred. See
Rakovich v. Wade,
Here, the issue is whether the McNairs proved
at trial that Officer Coffey displayed excessive
force. As previously discussed, after resting
their cases, the parties should have provided the
trial judge with special interrogatories and
requests that the jurors be instructed, prior to
their deliberations, that the parties agreed that
Officer Coffey was the sole patrolman on duty,
seated in his car in the dark of winter around
5:30 p.m., in an area stipulated to as having a
high crime rate, including drug trafficking; and
that Officer Coffey encountered the McNairs among
a group of three other individuals standing on a
street corner near an apartment known to be the
site of illegal drug activity. (Appellants’ Br.
at 6-7; Appellee’s Br. at 1-3.) See 9A Wright &
Miller, Federal Practice & Procedure sec. 2506 at
174-76 (1995) (discussing jury instructions
*19
related to undisputed facts). Then, the specific
questions asked of the jury should have included,
but not necessarily been limited to: "According
to the evidence presented, would a patrolman in
Officer Coffey’s position have reasonably
believed that: (1) the McNairs and this crowd
dispersed shortly after seeing Officer Coffey’s
police vehicle, with some members of the group
retreating towards the apartment?; (2) a third
suspect may have been present in the McNair
vehicle outside Coffey’s field of vision?; (3)
the McNairs should have seen and heard Coffey’s
emergency lights and sirens, yet disregarded
these observations and continued driving for one
mile or more?; (4) the McNairs pulled into a gas
station lot, where customers were present, which
was within walking distance of a residential
neighborhood?; and (5) furthermore, as a result
of their seizure, did the McNairs suffer any
physical injuries while they were detained for
approximately one hour for questioning?" The
jury’s responses then should have served as the
basis for the district judge’s determination of
whether Officer Coffey’s actions were reasonable
as a matter of constitutional law. See Rakovich,
Because of defense counsel’s failure to request,
much less tender any proposed special
interrogatories to the trial judge, the jury was
improperly instructed and ill-informed.
Nevertheless, I cannot agree with the wild-eyed
speculation and supposition offered by
plaintiffs’ counsel that the McNairs must prevail
because the jury necessarily determined that "a
reasonable officer would never have believed the
McNairs were drug dealers or posed any sort of
threat." (Appellants’ Rule 54 Stmt. at 5 n.5.)
Counsel’s argument is misdirected in at least two
respects. First, although counsel sets up a
strawman, i.e., his drug dealer argument, and
proceeds to flail away at it, the dispositive
issue is not whether the McNairs were drug
dealers. Rather, the controlling question is
whether Officer Coffey acted reasonably at the
time, in light of his knowledge,
information,experience, and perceptions of the
seriousness of the totality of the circumstances
confronting him. Saucier,
C. The Search and Seizure Clause
Turning to the merits, the Fourth Amendment
protects citizens against unreasonable searches
and seizures. Police may seize a person only if
there is probable cause. The power to seize
"necessarily carries with it the right to use
some degree of physical coercion or threat
thereof to effect it," Graham v. Connor, 490 U.S.
386, 396 (1989), and "[f]ollowing Graham, we
analyze all excessive force claims stemming from
an arrest or other seizure by the police under a
Fourth Amendment ’objective reasonableness’
standard." Ellis v. Wynalda,
The Graham analysis focuses on whether the
officer’s actions were objectively reasonable "in
light of the facts and circumstances confronting
[him], without regard to [his] underlying intent
or motivation." Graham,
Officer Coffey was the sole law enforcement officer on the scene. I believe that overwhelming material evidence, almost none of which is disputed, established at trial that Coffey--as any reasonable officer would do in like circumstances--would have called for backup assistance at a time when he had reason to believe the McNairs posed a serious risk to himself and to the general public. Furthermore, based on the record before me, it is patently obvious that Coffey’s decision to call for backup assistance, which resulted in the display of force objected to in the arrest of the McNairs, was eminently reasonable. I review this evidence to add to the majority’s brief recitation of facts and to make clear the reasonableness of Coffey’s actions. I then explain why I conclude, from my discretionary review of the record, that Officer Coffey did not violate the McNairs’ Fourth Amendment rights.
1. The McNairs were a risk to Officer Coffey and the general public On the night of December 20, 1997, Officer Sean Coffey had been a law enforcement officer for approximately 2 years. He was routinely assigned to the Allied-Dunns Marsh neighborhood in the community of Fitchburg, Wis., which is neither a village, town nor city, but, rather, is an unincorporated area of 18,000 people adjoining the city of Madison, Wis. Even the McNairs concede that Coffey correctly perceived that the area around Rosenberry Road and Thurston Lane in Fitchburg is an undesirable area, with a crime rate that is higher than normal, that has been the site of "armed robberies, burglaries, damage to property," "person crimes, batteries, assaults," and "a lot of drug activity." (Tr. 2- 140.) Indeed, in the plaintiffs’ own words, "[d]rug dealing and other criminal activity is known to have occurred in the neighborhood." (Appellants’ Br. at 6.) This troubling situation occurred between 5 and 5:30 p.m. in the dark of winter. The streetlights were activated and the black shadows of night had long past set.
Coffey was parked in an empty parking lot across the street from the location where he first sighted the people later identified as the McNair brothers, Victor and Tre. As he was looking out onto Thurston Lane, observing the traffic and keeping tabs on the activity in the area, he noticed a Mitsubishi Galant vehicle parked at the curb. Coffey, while seated as the sole occupant in his squad car, observed at least *22 five young people standing on the sidewalk, apparently looking at this automobile. Coffey decided to investigate the scene and then drove alongside the people and the automobile. As he did so, at least two or three individuals standing on the sidewalk departed the area and proceeded towards an apartment known to be a site of illegal drug activity on the corner of Thurston and Rosenberry. Coffey stated that he believed he saw the McNair brothers and a third person enter the Mitsubishi and proceed to drive off in the opposite direction of the squad car. Coffey stated that the congregation of people on a street corner in this crime-prone area of Fitchburg, accompanied by the almost immediate dispersal of several men towards the apartment after they had in all probability sighted his squad car, made him suspicious as to whether there was possible illegal drug activity afoot. (Tr. 2-50, 2-89; Appellee’s Br. at 2-3.) Coffey decided to pursue the McNair car. He radioed the Fitchburg police headquarters and asked the dispatcher for an owner and license plate I.D., to ascertain whether the legal owner resided in the immediate area, and if he had any outstanding warrants or a prior police record. As the vehicle continued to travel for several hundred feet along the frontage road towards an on-ramp for the Madison Beltline expressway, there was but one vehicle between the Mitsubishi and Coffey’s police vehicle. The dispatcher responded and advised that the vehicle belonged to a Victor McNair and that its state motor vehicle registration was suspended for unpaid traffic citations. At this point, after receiving this information, Coffey had probable cause to stop the vehicle. See Wis. Stat. sec. 346.04(1). Once the car made its way to the top of the on- ramp, and was rapidly approaching the expressway, Coffey maneuvered his squad car so that he was immediately behind the McNair vehicle. At this time, Coffey activated his emergency lights, hoping to direct the McNairs to pull over, and also activated the video camera positioned on top of his police car. The McNairs refused to comply with the officer’s signal and instead continued driving for an unspecified distance at about 55 mph, keeping up with the flow of traffic. After another five or six seconds while the suspects’ refused to obey a lawful command by a police officer, Coffey turned on his emergency siren. The traffic was normal, and Officer Coffey was close enough behind the vehicle to allow him to form the opinion, based on his knowledge, experience, and perceptions at the time, that the McNairs could readily hear his siren and see the flashing, colored overhead lights. Indeed, as the videotape of the chase reflects, at least one *23 vehicle can be observed pulling over to the side of the road, with its blinkers on, pursuant to law. Moreover, while on the Beltline, other cars traveling in the same direction were observed moving over to the traffic lane furthest from Officer Coffey’s squad car, thus suggesting that other vehicles in the immediate area also heard and saw the police sirens and lights.
Under this escalating and evolving scenario, I
am convinced that Coffey must have been
reasonably concerned for his safety and what lie
ahead of him as he proceeded to make a valid
arrest of a fleeing suspect. Coffey testified
that he thought he saw three people enter the
Mitsubishi when it was parked on Thurston and
Rosenberry, but from his observation of the
occupants of the car during this pursuit, he was
able to observe the silhouettes of only two
individuals. He testified that he believed the
third person might have crouched down below the
rear window vision line, attempting either to
obtain a weapon or possibly secrete drugs or drug
paraphernalia. I believe that Coffey’s fears were
well-founded: the police are trained to assume
that a person who conceals himself from view may
well be doing so to establish an advantage in an
attempt to overpower or ambush an approaching
officer. (Tr. 2-153 to -154.)
The situation with the fleeing suspects
continued to deteriorate, as the McNairs
persisted for almost another mile along the
Beltline highway in their attempted flight from
the officer, despite the squad car’s flashing
lights and blaring sirens directing them to pull
over, before they finally exited onto an off-
ramp. Because the McNairs refused to stop in a
timely fashion, it was reasonable for the officer
to assume that they were fleeing in an attempt to
avoid arrest. In addition, Coffey gave undisputed
testimony that, while an individual apprehended
on the highway is somewhat constrained by
speeding traffic and concrete barriers, a suspect
who pulls over in a residential area is able to
flee on foot much more easily, should he be so
inclined. (Id.) For these reasons, I believe it
is, at best, improper to state, as plaintiffs’
naive counsel does, that Officer Coffey was
effectuating a routine traffic stop and could not
have "reasonably believed the McNairs . . . were
trying to evade or elude him." (Appellants’ Br.
at 20.) As the Supreme Court explained in
California v. Hodari D.,
The McNair vehicle continued along the frontage road for several tenths of a mile, approaching a Citgo gas station soon after Coffey made his request for backup assistance. Shortly thereafter, the auto decelerated and signaled the driver’s intention to turn into the station. The McNairs entered the station’s small lot, which was occupied by other vehicles and customers. The McNairs pulled up adjacent to one of the gas pumps, immediately adjacent to others pumping gas. Coffey testified that he pulled in directly behind the McNair vehicle. There was reason to be concerned about the safety of the bystanders in the congested lot and the nearby residential neighborhood, because if the suspects attempted to escape, misdirected gun shots might strike innocent civilians or possibly ignite any flammable liquids in the vicinity.
I share Officer Coffey’s concerns about police *25 and public safety. I am convinced that Coffey, on single assignment without a partner, had more than sufficient information, knowledge, and experience (2 years on the force) to be concerned and believe that the McNairs posed an immediate threat to his own safety as well as the general public. To review, from Coffey’s perspective, the McNairs behaved somewhat suspiciously on Thurston Lane when they were first observed mulling around with a crowd of people in a high-crime area after dark, with a known drug apartment a mere stone’s throw away; they exhibited behavior consistent with illegal drug activity; they were operating a motor vehicle on a public highway in violation of state law; they disobeyed lawful directions, thus requiring the officer to pursue them for over a mile in his squad car with its emergency lights on and the siren blasting away; there was possibly a third passenger hiding somewhere in the vehicle with them, outside Coffey’s line of vision; and when the fleeing suspects finally did pull over, they drove into a crowded gas station adjoining a residential area, where unsuspecting, law-abiding customers and homeowners could be harmed and definitely placed in a lethal situation if the suspects persisted in their attempt to flee and violence erupted.
It is important to note that between 1990 and
1999, a total of 6,048 law enforcement officers
were assaulted, and 94 were killed, at the scene
of a traffic stop or during a traffic pursuit.
FBI Uniform Crime Reports, Law Enforcement
Personnel, tbls. 18, 38 (2000). We have
previously stated that proper respect for these
statistics "underscore[s] our reluctance to
second-guess an officer’s split-second judgment"
when faced with potentially explosive situations.
Sherrod,
2. Officer Coffey’s display of force was reasonable
Once the McNairs stopped at the gas station,
Coffey’s personal involvement in the arrest was
limited to: instructing the suspects over the
loudspeaker to place their hands on the roof on
the inside of the car; ordering the nearby
customers pumping gas to clear the immediate
area; and waiting for his backup officers to
arrive at the scene and allow him to place them
under arrest. It is inconceivable to suppose that
such a proper display of lawful authority,
standing alone without even an allegation of the
use of excessive physical force, violates the
Fourth Amendment. See Gumz v. Morrissette, 772
F.2d 1395, 1400-01 (7th Cir. 1985); Holland v.
Harrington,
I see no merit to the plaintiffs’ legal claim,
based on nothing but speculation and a foundation
of quicksand, that Defendant Coffey violated the
Fourth Amendment by calling for backup help with
the knowledge that his fellow officers’ response
would be unreasonable. Coffey gave undisputed
testimony at trial that he did not request any
specific number of squad cars or officers to
respond to his call for backup assistance. Coffey
also gave the unchallenged testimony that he
neither knew how many officers would respond, nor
how quickly much less whether, in fact, they
would respond at all. Nor did he give any
directions, signals or orders to the officers as
to what actions they should take once they
arrived upon the scene. (Tr. 2-98 to -99; 2-154
to -156.) Admittedly, seven officers driving
separate squad cars responded to Coffey’s 10-80;
four of these officers exited their vehicles and
aimed their loaded weapons at the McNair
brothers. Yet it is apparent that Coffey did not
personally control the acts of other Fitchburg
patrolmen, much less the law enforcement officers
from the outlying areas. Furthermore, the
officers’ collaborative display of firearms
conformed with standard police procedures in all
respects, and the McNairs never have argued that
the procedures themselves authorize an
unreasonable response to an officer’s call for
assistance. Cf. Monell v. New York Dep’t of Soc.
Servs.,
Finally, even assuming that the actions of the
officers on the scene could be somehow attributed
to Officer Coffey, I am of the opinion that the
combined response of all the officers would still
pass Fourth Amendment muster. We are fighting a
war on drugs at a time when the population is
increasingly desensitized to violence, and
assaults against police officers are frequently
applauded or even encouraged by certain elements
of pop culture. An officer, working alone at
night without a partner, who has probable cause
and encounters what he believes to be three
suspects acting suspiciously and fleeing from the
vicinity of a known drug house, is entitled to
seize the suspects using greater force than is
usually necessary during a routine traffic stop.
At the time of the seizure, none other than the
arresting officer and, perhaps, an officer
assisting, laid a hand upon either of the McNairs
except to take them into custody and eventually
charge Victor McNair with failing to obey an
officer’s sign or signal and driving with a
suspended license. "Where the undue force
underlying an excessive force claim primarily
consists of an abstract demonstration of force
*28
and not its actual use, a justified finding of
liability under sec. 1983 would be most unusual."
Gumz,
Very recently, the Seventh Circuit sustained a
summary judgment ruling that an officer used
reasonable force in a case that is far more
egregious and troubling than this one. The police
in Smith,
The show of force by Officer Coffey and his summoned assisting partners in this case pales in comparison to the force outlined above in Smith, *29 even though the McNairs potentially posed a far more serious safety risk to the law enforcement officials involved--as well as to the general public. Accordingly, in light of Gumz and Smith, and for the foregoing reasons, I am convinced that no rational, properly instructed jury could have found in the McNairs’ favor on their constitutional claim. All of Officer Coffey’s actions were reasonable under the United States Constitution. Therefore, the district judge should have dismissed this suit at the outset, when Coffey first filed for summary judgment. III. THE OUTER LIMITS OF
THE FOURTH AMENDMENT
Though I agree that this case should be
dismissed, I have reservations about the author
of the majority’s overbroad, categorical
statement that a citizen must be victimized by
"physically abusive governmental conduct" in
order to state a constitutional claim for
damages. Ante at 7. The presence or absence of
physical injuries, of course, is an important
factor in determining whether the police have
acted reasonably. Indeed, in cases like this one,
when the police have probable cause to arrest
suspects who are fleeing from custody and may
possibly be armed and dangerous, a Fourth
Amendment claim raised by victims who have
suffered no physical injuries should be deemed
frivolous. Yet, based on the record and the
question posed by the Supreme Court’s remand, I
see no need to reach an issue that is not before
us, possibly create tension with decisions in
Jones,
In Gumz,
Wilkins v. May,
To support its argument that there can be no
Fourth Amendment violation without the use of
physical force, the majority’s author cites to
decisions interpreting FELA and the Bankruptcy
Code. Ante at 6-7. I fail to understand the
relevancy of these decisions, advanced without
any elaboration by the majority, for these
statutes are intended to guard against entirely
separate and distinct evils than does the Fourth
Amendment, and thus are far removed from our
Fourth Amendment analysis or discussion. FELA’s
central purpose is to protect workers "from
physical invasions or menaces," Conrail Corp. v.
Gottshall,
When Officer Coffey attempted to arrest the McNairs, and they were foolishly attempting to flee from him in the dark of night, the responding officers had grounds to establish probable cause and to seize the McNairs using whatever reasonable means were necessary.
However, I am reluctant to agree with the author
*32
of the majority opinion, in the absence of
additional facts and without the benefit of
briefing and oral argument by the parties, that
the immediate risk of serious injury or death due
to the slip of a finger, a stumble, or some other
mishap can be cavalierly disregarded. See, e.g.,
Jones,
At the same time, I am troubled with and, thus,
cannot accept the full implications of Judge
Cudahy’s statement that there is "no distinction,
as a matter of principle, between the use of
force and its display, provided that the suspect
submits." Ante at 9. Nor do I agree with his re
lated argument that a suspect’s subjective
reaction to an officer’s display of force is
probative evidence that an officer behaved in an
objectively unreasonable manner. Although Judge
Cudahy believes that "[t]he mental state of the
terrorized is at least one measure of the
objective reasonableness of the terror applied,"
id. at 8, plaintiffs can all too easily fabricate
claims of mental anguish and emotional trauma,
and I am of the opinion that a suspect
cannotestablish constitutional injury if he is
unable to corroborate his self-serving
allegations with objective evidence, such as
medical testimony or outward manifestations of
harm. See Richard,
IV. CONCLUSION
I conclude that it may be possible (yet unlikely) for an excessive display of force in the modern era to violate the Fourth Amendment. Accordingly, I respectfully dissent from those portions of the majority opinion that would extinguish the possibility of a Fourth Amendment claim based on injuries resulting from an unreasonable show of force. However, I concur with the majority’s decision to set aside the jury verdict and affirm the district court’s dismissal of this case. Because Officer Sean Coffey acted reasonably and within the framework of the Constitution, this case should be dismissed as a matter of law for a failure of proof.
As a final matter, I note that Officer Coffey is entitled to recover his appellate costs, as well as his costs before the district court, as the prevailing party in this lawsuit. When the trial judge calculated Coffey’s costs prior to McNair I, they totaled a modest $1,508.11; I assume he has incurred additional expenses over the thirteen months since that decision was rendered. In the same vein, I point out that the district court’s order awarding sec. 1988 attorney’s fees of $103,292.34 to Plaintiffs *33 following McNair I--an inflated sum representing more than ten times the amount won by Plaintiffs at trial--must be vacated.
FOOTNOTES
/1 I wish to make clear that I neither know nor am I acquainted with or related to Appellee Sean Coffey.
/2 In the section of their brief titled "Victor R. McNair Was Not Deprived Of His Fourth Amendment Rights," Coffey’s attorneys argued, "We believe Officer Coffey’s response to the situation presented to him by the plaintiffs was objectively reasonable as a matter of law, both under the Fourth Amendment and as prudent police work." (Doc. No. 34 at 6, 9.) The motion was denied.
/3 Coffey’s attorney raised an oral motion for directed verdict at the close of the plaintiffs’ case, stating, "Your Honor, now that the plaintiffs have rested their case, we believe that there is no legally sufficient evidentiary basis for a reasonable jury to find for the plaintiffs on the issue of reasonableness of Officer Coffey’s actions. No excessive force has been proved by the plaintiffs, and under the controlling law, we believe the plaintiffs’ excessive force claims cannot be maintained and, therefore, need to be dismissed." (Doc. No. 98 Ex. A at 2 (Tr. 2.)) The motion was denied.
/4 Prior to the conference on jury instructions, Coffey’s attorney notified the court, "I renew my Rule 50 motion that now that the entire case has been heard, we’re entitled to a judgment of dismissal as a matter of law." (Id. Ex. B at 5 (Tr. 5.)) The motion was denied.
/5 In a post-trial Rule 59(e) motion, Coffey’s attorneys sought to alter or amend the verdict on the basis of qualified immunity. They argued that, "as shown by Officer Coffey’s training and by court precedents, a reasonable police officer could well have believed the force he used against the plaintiffs was constitutional." (Doc. No. 93 at 10.) The court granted the motion, finding that "a reasonable police officer could have believed that the high risk procedure Defendant Officer Coffey used was lawful based on the law on December 20, 1997 when force was used in this case." (Doc. No. 103 at 6.) /6 The majority seems to be of the opinion that an excessive display of force "could have consequences under the Fourth Amendment" only if, for example, "a suspect’s consent to search were prompted by fear that the officers would react *34 violently to a refusal," or if "edgy officers opened fire." Ante at 7.
/7 Various affidavits and depositions were presented to the district court at summary judgment, demonstrating the absence of any genuine issue of material fact for trial. I discuss these relevant facts throughout my opinion. They are cited in Defendant’s Second Proposed Findings of Fact paras. 6-15, 18-33, 35-60, 64-66, 68-78 and 107-09, which were not the subject of any objection by Plaintiffs, and those portions of id. paras. 61-63, 67, 79, which were not the subject of legitimate objection by Plaintiffs. See also the depositions and affidavits cited in Plaintiffs’ Proposed Additional Findings Of Fact paras. 22, 25-27, 31, 33-42, 44-45.
/8 My concurring colleague states in his opinion that he is "none too sure what Saucier requires here . . . ". Ante at 8.
I believe that, although Coffey’s Rule 59(e)
motion does not argue that the jury verdict was
based on legally insufficient evidence, we may
still consider the purely legal question of
whether Coffey violated the Fourth Amendment. We
are vested with discretion to review the record
in its entirety and address the district court’s
ruling on any ground fairly supported therein.
See Bakalis v. Golembeski,
/10 Smith was decided on March 6, 2001, which was long after the night of the McNairs’ arrest on December 20, 1997. However, at no point in their Circuit Rule 54 statement--which was filed on August 15, 2001 (after the Smith decision)--do the McNairs argue that Smith is inconsistent with any of our decisions rendered prior to December 20, 1997.
/11 Jones, a drug dealer, sought to suppress marijua-
na, cocaine, and drug paraphernalia obtained
after the police executed a search warrant of his
home. Three or four officers barged into the
house after breaking down an unlocked door with
a battering ram and setting off a flash-bang
device that distracted Jones and left him tempo-
rarily stunned or disoriented.