Derek A. SMITH, Plaintiff-Appellant, v. BALL STATE UNIV., Ball State Univ. Board of Trustees, Ball State Univ. Police Dept., John Rogers, John Foster, Craig Hodson and Rhonda Clark, Defendants-Appellees.
No. 01-4086
United States Court of Appeals, Seventh Circuit
July 8, 2002
August 29, 2002
295 F.3d 763
Argued May 23, 2002.
This comparison was made in direct response to defense counsel‘s suggestion that Sandoval-Gomez, a former goat herder, was not able to understand the consequences of his deportation, and thus thought that he had permission to reenter the United States. Even if we assume that the prosecutor‘s remark was improper, we simply cannot conclude that this statement denied Sandoval-Gomez a fair trial. When examining whether a defendant was denied a fair trial, we consider: “(1) the nature and seriousness of the misconduct; (2) the extent to which the comments were invited by the defense; (3) the extent to which any prejudice was ameliorated by the court‘s instruction to the jury; (4) the defense‘s opportunity to counter any prejudice; and (5) the weight of the evidence supporting the conviction.” Id. at 740. While we recognize that there was no instruction given by the judge with regard to this remark, we believe that the weight of the evidence against Sandoval-Gomez strongly supports his conviction and greatly outweighs the other factors relevant to this analysis. It is undisputed that Sandoval-Gomez was previously convicted of a felony; that he was deported; and that he voluntarily reentered the country without the permission of the Attorney General. Finally, under plain error review, we firmly believe that the outcome of this trial would have been no different absent the prosecutor‘s remark.
III. Conclusion
For the foregoing reasons, we AFFIRM Sandoval-Gomez‘s conviction and sentence.
James S. Stephenson, Mark Alan Holloway (argued), Stephenson, Daly, Morow & Kurnik, Indianapolis, IN, for Defendant-Appellees.
Before FLAUM, Chief Judge, and BAUER and ROVNER, Circuit Judges.
Plaintiff-Appellant Derek A. Smith filed suit under
I. Background
At the time of the incident, Smith was a student at Ball State University who suffered from juvenile diabetes. On March 19, 1998, Smith had a diabetic shock episode at the Ball State University Student Center. The Student Center‘s hotel desk clerk contacted the Ball State Police Department, and campus police Officers Rhonda Clark and Craig Hodson responded to the call. When they arrived, Officers Clark and Hodson witnessed Smith acting strangely. They approached Smith and recognized a medical identification bracelet that alerted them to Smith‘s medical condition. Officers Clark and Hodson contacted emergency medical personnel, who treated and released Smith.
Four days later, Smith again lapsed into diabetic shock. This time, Smith was operating a motor vehicle, which he drove onto a sidewalk on Ball State‘s campus. A campus shuttle bus driver witnessed the incident and contacted campus police dispatch. The bus driver reported a possible drunk driver and stated that the vehicle nearly struck several pedestrians. Police dispatch contacted Corey Wilkinson, a Ball State student who also worked as a parking attendant, and asked him to investigate the situation. Wilkinson walked to the scene, observed Smith seated in his car and noted that the vehicle was running. Wilkinson tapped the window and attempted to gain Smith‘s attention, but Smith was unresponsive. Wilkinson contacted police dispatch, stated that the driver was incoherent and that dispatch should send an ambulance. Wilkinson may have mentioned that the driver was drunk or on drugs, although he does not recall specifically whether he provided dispatch with such information.
Several minutes later, Ball State Police Officers John Rogers and John Foster arrived at the scene.1 Officer Foster opened the passenger door and turned off the car‘s ignition. The officers asked Smith to exit his vehicle, but Smith was unresponsive. Accordingly, the two officers forcibly attempted to extract Smith from his car. Officer Rogers initially tried to remove Smith; however, Officer Foster intervened because Rogers was an intern. Foster used a technique known as a “straight arm bar” and, with Rogers‘s assistance, extracted Smith from his car.
While Foster and Rogers were removing Smith from his car, Officer Craig Hodson, who had responded to the Student Center clerk‘s call four days earlier, also arrived at the scene. Because Foster and Rogers were forcibly removing Smith from his vehicle, Officer Hodson believed that the three individuals were engaged in a struggle. As a result, Officer Hodson jumped across the hood of Smith‘s vehicle and attempted to apply a “knee strike” to Smith‘s leg. However, Officer Hodson slipped and, rather than apply a knee strike, tackled Rogers, Foster and Smith. The three officers then held Smith‘s face
Smith filed suit alleging that the officers violated his constitutional rights and committed certain state law torts against him.2 After discovery, the Defendants moved for summary judgment, arguing that Smith failed to establish a constitutional violation and that, if he did, the officers were entitled to qualified immunity. The district court granted Defendants’ motion. The district court first held that Smith‘s detention was an investigatory detention and not a formal arrest. The court then noted that Smith‘s detention was reasonable, particularly due to the risks posed by an unresponsive driver in command of a vehicle and the fact that the officers reasonably believed Smith was impaired by either drugs or alcohol. Finally, relying on Tom v. Voida, 963 F.2d 952 (7th Cir.1992), the district court granted summary judgment on Smith‘s excessive force claim. The court stated that Smith‘s unresponsiveness necessitated the use of minimal force to remove Smith from his vehicle. Moreover, the court held that the use of handcuffs “was reasonable given the context of the investigatory stop, Smith‘s lack of cooperation with officers on the scene, and Defendants’ goal of protecting themselves and the public from harm.”
II. Discussion
We review the district court‘s grant of summary judgment de novo. Summary judgment is proper only when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
Smith raises two arguments on appeal, although they are significantly related. First, Smith contends that the district court erred in analyzing his detention as a legitimate Terry stop as opposed to a for-
A. Investigative Stop or Formal Arrest
Smith‘s first argument focuses on the distinction between an investigatory detention and a formal arrest. As our prior cases dealing with this issue demonstrate, the differences between a Terry stop and a formal arrest are subtle, see United States v. Tilmon, 19 F.3d 1221, 1224 (7th Cir.1994), but important in most cases. They are important because the legitimacy of a Terry stop depends upon an officer‘s ability to produce articulable facts giving rise to a reasonable suspicion that a defendant “has been, is, or is about to be engaged in criminal activity.” United States v. Smith, 3 F.3d 1088, 1095 (7th Cir.1993). In contrast, a formal arrest requires probable cause, a more demanding standard. United States v. Weaver, 8 F.3d 1240, 1243 (7th Cir.1993). Ordinarily, the importance of the distinction between Terry stop and formal arrest is critical because our characterization of the encounter between Smith and the Defendants determines what requirements the
We first note that Defendants had a reasonable suspicion of criminal activity to justify detaining Smith when they first happened upon the scene. See Tom v. Voida, 963 F.2d 952, 957 (7th Cir.1992). Officers Rogers and Foster received a police dispatch stating that a vehicle had veered off the street and had come to rest on a campus sidewalk, nearly striking several pedestrians. When the officers arrived to investigate, they observed Smith‘s vehicle on the sidewalk. The vehicle was running, and the officers’ attempt to communicate with Smith was unsuccessful. These circumstances, in and of themselves, allowed a reasonable officer to believe that “criminal activity [was] afoot” and justified a brief investigatory detention. United States v. Yang, 286 F.3d 940, 949 (7th Cir.2002).
Smith‘s contention that he posed no danger to anyone in the area is similarly unavailing. An officer may detain a suspect to preserve the safety of the officers, the suspect and the general public. See Terry, 392 U.S. at 24 (“... we cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations were they may lack probable cause for an arrest.“). In this case, Smith posed a threat to himself, the officers and the general public, even after Officer Foster turned off Smith‘s vehicle and attempted unsuccessfully to communicate with him. Indeed, contrary to Smith‘s assertions, his unresponsiveness did not neutralize the safety threat, but rather exacerbated it by adding an element of unpredictability. We thus find that the decision to remove Smith from his vehicle was a constitutionally permissible action pursuant to a legitimate investigatory stop under Terry.
The officers’ decision to handcuff Smith presents a closer question, but one that we ultimately need not decide to resolve this appeal. Even if we were to hold that the continued use of handcuffs transformed the initial Terry stop into a formal arrest, the officers had probable cause to arrest Smith. An officer has probable cause to arrest when “the totality of the facts and circumstances within his knowledge and of which he has reasonably trustworthy information is sufficient that a prudent person would believe that the suspect committed or was committing an offense.” Marshall v. Teske, 284 F.3d 765, 770 (7th Cir.2002) (citing United States v. Sawyer, 224 F.3d 675, 678-79 (7th Cir. 2000)). Critically, the probable cause analysis is an ex ante test: “the fact that the
B. Excessive Force
Smith‘s excessive force claim is significantly intertwined with our preceding discussion. We address it separately to show precisely why the Officers’ use of force in this case did not rise to the level of a constitutional violation. Smith argues that the officers used excessive force at least three times during the encounter: (1) his forced removal from the car; (2) Officer Hodson‘s failed attempt to apply a “knee strike“; and (3) the Officers’ use of handcuffs. We analyze claims alleging that an officer used excessive force under the
Viewing the evidence in the light most favorable to Smith, we agree with the district court‘s that no reasonable jury could conclude that the Defendants used excessive force in detaining Smith. As discussed previously, the officers were entitled to order Smith to exit his vehicle. See Mimms, 434 U.S. at 110-11; Class, 475 U.S. at 115-16. When Smith failed to do so, the officers were justified in using force to remove him, particularly given the potential threat to public safety of an intoxicated driver in command of a running vehicle.
Further, when Officer Hodson arrived at the scene, his belief that Officers Rogers and Foster were engaged in a struggle with Smith was reasonable. We must evaluate Officer Hodson‘s use of force not
Finally, we do not believe the officers’ use of handcuffs was an unreasonable use of force. Rather, the Defendants attempted to detain an unresponsive individual about whom they had, at the very least, “a reasonable suspicion of criminal activity.” Voida, 963 F.2d at 958 (citing United States v. Taylor, 716 F.2d 701, 708-09 (9th Cir. 1983)). While the officers did not remove the handcuffs after learning of Smith‘s medical condition, the use of force was measured, brief and appropriate to accomplish the purposes of the investigatory stop—securing Smith and his vehicle, dispelling any notion that Smith was engaged in criminal activity and preserving the officers‘, public‘s and even Smith‘s safety. See id.
III. Conclusion
The district court correctly granted summary judgment in this case. Officers Rogers and Foster appropriately detained Smith to investigate whether he was driving while under the influence of drugs or alcohol. If the officers did surpass the permissible bounds of a Terry stop, they had probable cause to arrest Smith and could reasonably resort to the use of handcuffs. Finally, the officers’ minimal use of force was objectively reasonable given the totality of the circumstances. The decision of the district court is therefore AFFIRMED.