In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1213
F RANK M C A LLISTER,
Plaintiff-Appellee,
v.
JERRY L. P RICE, in his individual capacity,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:07 CV 141—Joseph S. Van Bokkelen, Judge.
A RGUED JUNE 1, 2010—D ECIDED A UGUST 12, 2010
Before B AUER, F LAUM, and T INDER, Circuit Judges.
F LAUM, Circuit Judge. This is an interlocutory appeal
from a district court’s denial of summary judgment to
a defendant who claims qualified immunity. The plain-
tiff, Frank McAllister, suffered a diabetic episode re-
sulting in a car crash. McAllister alleges that the officer
responding to the incident, Jerry Price, violated his
Fourth Amendment rights by using excessive force to
remove McAllister from his car. Finding genuine issues
2 No. 10-1213
of material fact about whether Price violated McAllister’s
clearly established constitutional rights, we affirm.
I. Background
At approximately 2:00 p.m. in the afternoon of March 1,
2006, McAllister was driving his vehicle in the town of
Burns Harbor, Indiana. McAllister suffers from diabetes
and was wearing a medical alert necklace describing
his condition. While driving eastbound on U.S. Highway
20, McAllister’s blood sugar level plummeted, sending
him into a severe hypoglycemic state during which he
struck two other vehicles.
Michelle Draves, a fifth-grade teacher, witnessed the
accident. She too was traveling eastbound on U.S. High-
way 20. She noticed a car approaching her from behind.
The car passed, traveling at what she estimates to be
65 miles per hour as compared to her speed of 55 miles
per hour. The car then hit a truck and slid into a second
vehicle.
The truck was driven by Craig Tkach, captain of the
Hammond Fire Department and a trained emergency
medical technician (“EMT”). Like Draves and McAllister,
Tkach was headed east on U.S. Highway 20. After being
struck by McAllister, his vehicle went off the road and
came to rest roughly one hundred feet from the point of
impact. The accident resulted in $8,500 in damage to his
vehicle, but Tkach was unharmed.
The other driver struck by McAllister was Donald
Barden. Barden was also traveling east on Highway 20,
No. 10-1213 3
but he had stopped at a red light at the intersection
with Highway 149. Barden describes feeling a “slight
bump” in the right rear side of his Ford Ranger truck.
Multiple people reported the accident by calling 911.
Price was dispatched to the scene by county radio.
The incident was described to Price as a traffic accident
involving a potentially intoxicated driver.
McAllister testified at his deposition that he was not
in pain following the accident. The inside of his vehicle
was not damaged and the impact of the collision was not
severe enough to deploy its airbags. McAllister was
wearing a seat belt at the time of the accident.
Immediately after the accident, Barden approached
McAllister’s vehicle and asked if McAllister was
ok. McAllister was unable to answer at that time, but
remembers being asked.
Price arrived on the scene shortly after the accident.
Barden testified that McAllister was staring off into
space and convulsing as Price approached his car. Draves
also stated that McAllister was twitching as Price ap-
proached. According to Barden, McAllister did not
appear drunk.
Once alongside McAllister’s car, Price yelled for
McAllister to turn off the engine. McAllister later
testified at his deposition that he tried to shut off his
ignition in response to Price’s request, but could not.
Price then asked McAllister what was wrong with him,
but McAllister was unable to respond. According to
Price’s testimony, McAllister appeared to be “lethargic
and nonresponsive.”
4 No. 10-1213
Concerned that McAllister might attempt to flee the
scene, Price then forcibly removed McAllister from his
car. According to Barden, Price pulled McAllister out of
the car by his left arm and then “threw” McAllister to
the ground by applying his knee to McAllister’s lower
back, with his full body weight behind it. Once
McAllister was on the ground, Price handcuffed him.
After being handcuffed, McAllister lay face first on the
ground twitching intensely. Price then told Barden that
McAllister had “pissed me off.” Price testified at his
deposition that he was “angry” because he thought he
was dealing with a drunk driver who had caused two
collisions.
As McAllister lay handcuffed on the ground, Price
looked through his wallet and asked him if he was a
diabetic. According to Price, McAllister shook his head no.
Price then put McAllister into his police vehicle. Tkach
suggested that McAllister check for a medical alert
bracelet or necklace. Price discovered McAllister’s med-
ical alert necklace. He then released McAllister from
the handcuffs and was no longer angry and forceful.
When McAllister tried to stand up—apparently after
recovering from the worst of his hypoglycemic state—he
began complaining of a pain in his hip. Barden and
Tkach also noticed pieces of asphalt, dirt, and scratches
on McAllister’s face. Barden and Draves both observed
that McAllister’s wrists were bleeding, which Price ad-
mitted was likely because of the handcuffs.
An EMT who responded to the accident, Mary Wesley,
wrote a report in which she indicated that McAllister
No. 10-1213 5
suffered his injuries during the altercation with Price.
She testified at her deposition that her report reflects
what Price told her at the scene. Her recollection is that
Price told her that McAllister landed on his hip when
Price took him to the ground. No one other than Price
told Wesley that McAllister had behaved aggressively.
McAllister was ultimately diagnosed with a broken
hip and a bruised lung. Dr. Bruce Thoma, the orthopedic
surgeon who treated McAllister after the incident,
testified that the most common reason that people
sustain a broken hip is because of a fall, although he
could not rule out the possibility that the injury was
sustained during the earlier collisions. As a result of the
injury, McAllister had to undergo hip surgery and
remain in the hospital for twenty-one days.
The day after the incident, Barden went to the Burns
Harbor police station to file a complaint about Price.
Upon arriving at the station he discovered that Price
was the chief of police. He left without filing a complaint.
McAllister filed this lawsuit on April 11, 2007. He
brought claims against Price, the Town of Burns Harbor,
and the Burns Harbor Police Department. Only the
claims against Price are before us in this appeal.
On May 11, 2009, defendants moved for summary
judgment, arguing that Price acted reasonably under the
circumstances and therefore the defense of qualified
immunity shielded him from liability. Defendants also
argued that there were no facts from which a jury could
find a policy endorsing the use of excessive force and
that therefore no liability could be found on the part of
the Town of Burns Harbor.
6 No. 10-1213
On January 15, 2010, the district court denied in part
and granted in part the motion for summary judgment.
The district court granted summary judgment on
McAllister’s state-law claims against Price in his
individual capacity and the Town of Burns Harbor.
However, the district court found that there were
genuine issues of material fact as to whether Price used
excessive force to remove McAllister from his vehicle,
concluding that “no reasonable officer could have
thought it was acceptable to forcibly remove a man
from his car who was physically unable to obey com-
mands, who was in the midst of convulsions, and to
throw him to the ground with the full force of his
body weight.” Price filed a notice of appeal on Janu-
ary 25, 2010. McAllister does not cross-appeal the dis-
missal of his state-law claims.
II. Discussion
We review de novo an appeal from a district court’s
denial of summary judgment to a defendant who
claims qualified immunity. Baird v. Benbarger, 576 F.3d
340, 343-33 (7th Cir. 2009). We construe the factual
record in the light most favorable to the non-movant
and draw all reasonable inferences in favor of that
party. Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003). In
a § 1983 case, the plaintiff bears the burden of proof on
the constitutional deprivation that underlies the claim,
and thus must come forth with sufficient evidence to
create genuine issues of material fact to avoid summary
judgment. Johnson v. Snyder, 444 F.3d 579, 583 (7th Cir.
2006).
No. 10-1213 7
The doctrine of qualified immunity protects govern-
ment officials from liability for civil damages when
their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable
person would have known. Pearson v. Callahan, 129 S. Ct.
808, 815 (2009). When confronted with a claim for
qualified immunity, we must address two questions:
whether the plaintiff’s allegations make out a depriva-
tion of a constitutional right, and whether the right was
clearly established at the time of defendant’s alleged
misconduct. Wheeler v. Lawson, 539 F.3d 629, 639 (7th Cir.
2008). We may address the prongs in whichever order
we believe best suited to the circumstances of the particu-
lar cased at hand. Pearson, 129 S. Ct. at 818.
Claims that officers used excessive force in seizing a
person are evaluated under the Fourth Amendment’s
reasonableness standard. See Acevedo v. Canterbury, 457
F.3d 721, 724 (7th Cir. 2004). The dispositive question is
whether, in light of the facts and circumstances that
confronted the officer (and not 20/20 hindsight), the
officer behaved in an “objectively reasonable” manner.
See Graham v. Connor, 490 U.S. 386, 396-97 (1989). The
Supreme Court has directed lower courts to consider
three factors in this inquiry: (1) the severity of the crime
at issue; (2) whether the suspect poses an immediate
threat to the safety of officers or others; and (3) whether
the suspect is actively resisting arrest by flight. Id. at 396.
Price argues that the undisputed facts show that he
used a reasonable amount of force to effectuate the
seizure of McAllister. In support of this claim, he
argues that the district court erred as a matter of law
8 No. 10-1213
in considering McAllister’s hip injury and his diabetic
condition in determining whether the amount of force
was excessive. We will address each of these arguments
in turn, before turning to the ultimate question of
whether the amount of force was reasonable.
A. Evidence of McAllister’s Hip Injury
Price argues that the evidence of McAllister’s hip
injury was inadmissible because McAllister cannot estab-
lish proximate cause between the injury and Price’s use
of force. We have previously held that a jury may look
to the type of injury suffered by a plaintiff to determine
whether or not the amount of force used by law enforce-
ment was reasonable. See Chelios v. Heavener, 520 F.3d,
678, 690 (7th Cir. 2008). However, Price argues that the
plaintiff bears the burden of demonstrating proximate
cause between the amount of force used and an injury,
relying on Carter v. Chicago Police Officers, 165 F.3d 1071,
1077 (7th Cir. 1998). Price suggests that a lay witness
may only testify to the subjective existence of symptoms,
not their cause, and notes that Dr. Thoma, the treating
physician, was unable to testify to the probability that
McAllister’s injuries were caused by Price’s actions
rather than the earlier car accidents. He also argues
that because McAllister’s bones were more brittle than
those of a young adult (McAllister was 58 years old at
the time of this incident), an injury could have resulted
from even a minimal use of force.
Price’s arguments miss the mark. First, we have never
held that a plaintiff bears any burden (beyond rele-
vance) before that plaintiff’s injuries may be considered
No. 10-1213 9
in an excessive-force case. In Carter, the issue was
whether a jury should have received a definition of proxi-
mate cause for the state-law claims brought in conjunc-
tion with a § 1983 claim. Id. at 1077. Injury is not an ele-
ment of an excessive-force claim; rather, it is evidence
of the degree of force imposed and the reasonableness
of that force. See Chelios, 520 F.3d at 690; Holmes v. Village
of Hoffman Estates, 511 F.3d 673, 687 (7th Cir. 2007). If
McAllister had no evidence that his injuries were
caused by Price, they would be irrelevant; but so long
as there is some evidence connecting those injuries
to the force used by Price, the evidence is relevant and
the jury may draw reasonable inferences from the evi-
dence presented.
In fact, there is ample evidence to connect McAllister’s
injuries to the force used by Price. McAllister’s admissible
testimony about his subjective symptoms corroborates
his claim that he was injured by Price, not the earlier
car accidents. McAllister testified that he was not in
pain before he was taken to the ground, but afterward
he was unable to walk. While Dr. Thoma could not
testify to the probability that McAllister’s hip injury was
caused by Price, he did testify that the most common
reason for a hip injury is a fall and that the injury to
McAllister’s lung was consistent with a knee being forced
into his back. Finally, even in tort cases where the
plaintiff has the burden of establishing cause, the plain-
tiff may rely on lay testimony when causation is within
the understanding of a lay person. Smith v. Beaty, 639
N.E.2d 1029, 1042 (Ind. App. 1994), relied on by
McAllister, is an example of this principle. In Smith, the
plaintiff sued a truck driver for injuries after his vehicle
10 No. 10-1213
overturned and was then struck by a tractor-trailer.
Smith’s medical expert was unable to determine the
cause of the injuries (whether it was the rollover or the
subsequent collision with the truck), but the court held
that the doctor’s inability to determine the cause was not
fatal to Smith’s case, and allowed Smith to rely on his
own testimony that he did not feel severe pain until after
the truck hit his vehicle. Id. at 1034. Given the extent of
McAllister’s injuries and the evidence linking them to
Price’s conduct, the district court did not err in con-
cluding that McAllister’s injuries were relevant to deter-
mining whether Price used excessive force.
B. Evidence of McAllister’s Diabetic State
Price next argues that the district court should not have
considered McAllister’s medical condition, because Price
did not know McAllister was a diabetic at the time he
removed McAllister from his car, and that even if he
had known of it or should have discovered it earlier,
McAllister’s diabetic condition does not change what
constitutes a reasonable amount of force.
It is true that we have previously held that a reasonable
officer cannot be expected to accommodate an injury that
is not apparent to him. See Estate of Phillips v. City of
Milwaukee, 123 F.3d 586, 594 (7th Cir. 1997) (holding
that officers did not use unreasonable force when the
plaintiff was injured after the officers placed him on the
floor in a prone position, because the medical conditions
that exacerbated this use of force and resulted in the
plaintiff’s death were not observable to the untrained eye).
We have also previously held that officers properly
No. 10-1213 11
used force to remove a diabetic driver from a car fol-
lowing a collision. See Smith v. Ball State Univ., 295
F.3d 763, 769 (7th Cir. 2002). It does not follow, however,
that McAllister’s diabetic condition is irrelevant.
If Price’s belief that McAllister was intoxicated was
unreasonable, then McAllister’s diabetic condition is
relevant to the question of whether Price used a rea-
sonable amount of force against him. McAllister argues
that his diabetic condition made him unable to flee or
resist arrest and also shows that he did not pose an im-
mediate threat to the officer or public safety in general.
These are two of the three factors that Graham directs
courts to consider when evaluating the use of force
by an officer. 490 U.S. at 396. Of course, this is not
the only possible interpretation of the evidence; if
Price reasonably thought McAllister was intoxicated,
McAllister’s unresponsiveness may have created a safety
threat by “adding the element of unpredictability.” See
Smith, 295 F.3d at 769. Similarly, if Price reasonably
thought McAllister posed a danger as an intoxicated
driver, he would have been justified in using force to
remove McAllister from the vehicle. Id. at 770. But
nothing in Smith suggests that McAllister’s diabetic
condition is wholly irrelevant if Price should have been
aware of it. There was no evidence in Smith that the
officers had formed an unreasonable belief as to
whether the plaintiff was intoxicated, and we even
then held only that the “minimal force” used to
remove the plaintiff from his vehicle and detain him
was justified by the circumstances. Id. at 771.
12 No. 10-1213
While we are hesitant to second-guess the snap judg-
ments made by law enforcement personnel, McAllister
has come forward with enough evidence so that a jury
could infer that Price’s mistaken belief that McAllister
was intoxicated was unreasonable. It was clear to Price,
as it was to the other witnesses, that McAllister was
impaired in some way during and after the accident.
Thus, this is not a case like Estate of Phillips, where the
plaintiff’s medical condition was completely hidden.
Multiple eyewitness observed McAllister to be con-
vulsing or twitching, and at least one concluded that
McAllister was not intoxicated. Price was trained to ask
if someone who appears unwell is diabetic, but did not
do so before applying the challenged force. McAllister
was wearing a medical alert necklace—something that
Price was trained to look for—but Price made no attempt
to check for it until this course of action was suggested
by a witness. Finally, Price was trained to recognize
people under the influence of alcohol and drugs; yet if
we draw all reasonable inferences in favor of McAllister,
Price did not follow that training and leapt to the con-
clusion that McAllister was intoxicated. For these rea-
sons, the district court did not err in finding a genuine
issue of material fact regarding McAllister’s diabetic
condition.
C. Reasonableness of the Force Used by Price
Having rejected Price’s arguments that the district court
improperly considered the extent of McAllister’s injuries
and his diabetic condition, we turn to the question of
whether McAllister has come forward with enough
No. 10-1213 13
evidence to create an issue of fact on whether Price’s
use of force was reasonable.
McAllister argues that all three factors of the Graham
test for unreasonable force weigh in his favor. He notes
that he was involved in a traffic offense, rather than a
serious crime. He argues that even if Price’s erroneous
belief that he was intoxicated was reasonable, he would
only have reason to believe that McAllister had com-
mitted a nonviolent crime resulting in no physical in-
juries. Next, McAllister argues that he did not pose an
immediate threat to Price or any other individual.
McAllister has introduced evidence to suggest that he
was only semiconscious and physically unable to even
turn off the ignition of his car at the time of his en-
counter with Price. McAllister analogizes Price’s argu-
ment that he might have attempted to drive off, causing
another accident, to the argument that a fleeing felon
might have been carrying a concealed weapon when
there was no particular reason to believe the subject was
armed. See Ellis v. Wynalda, 999 F.2d 243, 247 (7th Cir.
1993) (rejecting qualified immunity for officer who shot
fleeing suspect in the back when there was no evidence
that the suspect was armed). Finally, McAllister argues
that he was unable to flee or resist Price because of his
diabetic episode. In support of this claim, he points to
witness testimony that he was “twitching” or “convulsing”
and McAllister’s own testimony that he attempted to
turn off the ignition but could not.
McAllister also relies on the degree of force used
against him to establish a constitutional violation. It
is undisputed that McAllister suffered a broken hip, a
14 No. 10-1213
bruised lung, and other bruises, scrapes, and cuts.
McAllister underwent a surgical procedure to drain
fluid from his injured lung, remained in the hospital
for twenty-one days, and underwent several weeks of
rehabilitation for his hip injury. As discussed in more
detail in Section II.A, McAllister has introduced evi-
dence sufficient for a jury to infer that his injuries were
caused by Price’s use of force. Viewed in the light
most favorable to McAllister, the evidence shows that
Price ignored obvious signs of McAllister’s medical
condition, pulled him out of the car, and took him to the
ground with such force that McAllister’s hip was
broken and his lung bruised from the force of Price’s
knee in his back, not because such force was necessary
but because Price was “angry” with McAllister. Even
if Price was justified in using some force to remove
McAllister from the vehicle, using the force involved
here against a non-resisting suspect could have been
unreasonable given the circumstances. Of course, this is
not the only possible interpretation of the evidence,1 but
if believed it is sufficient for a jury to conclude that
McAllister’s use of force was excessive.
1
For example, Price argues that McAllister’s bones were so
brittle that his broken hip is not inconsistent with Price’s
claim that he used minimal force. Price also argues that his
belief that McAllister was intoxicated was reasonable, because
Barden’s testimony that McAllister was “staring off into
space” and “kind of convulsing” are also consistent with the
behavior of an intoxicated driver. Given the evidence on both
sides, these are factual disputes not amenable to resolution
on summary judgment.
No. 10-1213 15
D. Clearly Established Unlawfulness of Price’s Conduct
Having determined that McAllister has come forward
with evidence sufficient to create a genuine issue of mate-
rial fact as to whether Price violated his Fourth Amend-
ment right against unreasonable search or seizure, we
must determine whether the right at issue was clearly
established. That is, the “contours of the right must be
sufficiently clear that a reasonable official would under-
stand that what he is doing violates the right. This is not
to say that an official action is protected by qualified
immunity unless the very action in question has
previously been held unlawful, but it is to say that in
the light of pre-existing law the unlawfulness must be
apparent.” Anderson v. Creighton, 483 U.S. 635, 640 (1987)
(citation omitted).
McAllister cites several cases from which, he argues,
Price could have inferred that his conduct was illegal.
For example, in Herzog v. Village of Winnetka, 309 F.3d
1041 (7th Cir. 2002), we denied summary judgment on
the basis of qualified immunity where an officer pushed
a woman he suspected to be driving while intoxicated,
causing some scratches, cracked her tooth as he
forcefully administered a breathalyzer test, and tightly
handcuffed her and brought her to the police station
despite the fact that the test revealed a blood-alcohol
level of 0.0. Id. at 1043-44. In Abdullahi v. City of Madison,
423 F.3d 763 (7th Cir. 2005), we rejected a claim of
qualified immunity by an officer who knelt on the back
of a resisting suspect who was in a prone position, re-
sulting in the suspect’s death. Id. at 771. In Levi v. Wilts,
16 No. 10-1213
No. 08-3042, 2009 WL 2905927 (C.D. Ill. 2009), a
district court denied qualified immunity to an officer
who allegedly applied handcuffs too tightly, causing
painful swelling in the plaintiff’s wrists and hands.
While none of these cases involve the same scenario at
issue here—the use of force against a diabetic following
a car accident resulting from hypoglycemic shock—they
do suggest that Price should have been on notice
that elements of his conduct could violate McAllister’s
constitutional rights.
Price, on the other hand, argues that his conduct is so
similar to the conduct of the officers in Smith v. Ball
State, supra, that he cannot be held liable. In Smith, the
plaintiff lapsed into a diabetic shock while driving on
campus, ending up on a sidewalk and narrowly missing
several pedestrians. Two officers responded to the inci-
dent, which was reported as possibly involving an in-
toxicated driver. The officers asked Smith to exit his
vehicle but Smith was unresponsive. At that point, one
of the officers began to use a “straight arm bar” to lift
Smith out of the vehicle. A third officer happened upon
the scene and mistakenly concluded that the other
officers were engaged in a struggle. As a result, the third
officer jumped across the hood of the car and attempted
to apply a “knee strike” to the plaintiff’s leg. Instead, he
slipped and tackled all three of the individuals. 295
F.3d at 766-67.
Smith differs from the present case in two important
respects. First, as discussed in Part II.B of this opinion,
there was no evidence that the officers in Smith should
No. 10-1213 17
have been aware of Smith’s diabetic condition.2 Here,
McAllister has introduced evidence from eyewitnesses
to suggest that McAllister did not appear intoxicated
but was rather convulsing and appeared to be in need of
medical attention. Second, the degree of force the officers
intended to apply in Smith was significantly less than the
force allegedly used by Price here. In Smith, the two
officers who initially responded did not slam Smith
into the ground with the force necessary to cause injury,
but rather attempted to use a “straight arm bar” to pull
Smith from the car to the ground. Indeed, even after
Smith was mistakenly tackled (because of the reasonable
belief of the third officer that Smith was struggling
with the other police officers), he suffered only a bump
on the head. Here, there is evidence to suggest that as
a result of the intentional, rather than accidental, use
of force, McAllister suffered a broken hip and a bruised
lung. Smith, which upheld the use of minimal force to
extract an unresponsive driver from a vehicle, would not
suggest to a reasonable officer that he may slam an unre-
sponsive, convulsing driver into the ground with force
sufficient to break the driver’s hip and place his knee
on the driver’s back with enough force to bruise his
lung. Such conduct goes beyond the bounds of the plain-
2
The third officer—he of the ill-fated knee strike—knew about
Smith’s diabetes from a previous encounter. Because he
was not on the scene when the officers first made the decision
to remove Smith from the car, however, it appears that the
initial decision to apply force was made by officers under
the impression that Smith was intoxicated.
18 No. 10-1213
tiff’s clearly established Fourth Amendment rights and
thus deprives the defendant of qualified immunity.
III. Conclusion
We A FFIRM the district court’s denial of summary
judgment to Price.
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