In The
United States Court of Appeals
For the Seventh Circuit
_______________________
Nos. 11-2906 & 12-2950
JULIAN J. MILLER,
Plaintiff-Appellant,
v.
ALBERTO GONZALEZ and SHANE STANGE,
Defendants-Appellees.
_________________________
Appeals from the United States District Court
for the Eastern District of Wisconsin.
No. 09-C-1012 — Rudolph T. Randa, Judge.
__________________________
ARGUED OCTOBER 29, 2012 — DECIDED AUGUST 5, 2014
_________________________
Before WOOD, Chief Judge, CUDAHY and ROVNER, Circuit
Judges.
ROVNER, Circuit Judge. Julian Miller began the evening of
October 24, 2003 at his mother’s wedding reception, and
2 Nos. 11-2906 & 12-2950
ended it in the back of a police cruiser with a broken jaw.
Miller blamed two police officers from the Kenosha,
Wisconsin police department for intentionally breaking his
jaw and sued them under 42 U.S.C. § 1983 for violating his
civil rights by using excessive force in effectuating his arrest.
The district court granted the police officers’ motions for
summary judgment and Miller appeals.
I.
Before entering his mother’s 9:00 p.m. wedding
reception, Miller and a friend smoked marijuana. At the
reception, Miller drank three shots of vodka in an hour and a
half. When the reception ended at approximately 10:00 p.m.
or 10:30 p.m., Miller dropped off his girlfriend and then
headed to a local bar in Kenosha. Before he entered the bar,
he smoked some more marijuana and then topped off that
high with three more Heineken beers before leaving for
another bar at around 1:00 a.m. Apparently unready to go
home, Miller headed off to one more bar, where he drank a
few more beers and then bought a final Heineken for the
road before heading off to a gas station where he planned to
use the pay phone to call his girlfriend.
Just as Miller was driving to the gas station, the Kenosha
police department received a call about a stabbing that
occurred about two blocks away from the same gas station.
Kenosha Police Officer Albert Gonzalez searched the
surrounding neighborhood for the suspect while Officer
Shane Stange interviewed the witness to the stabbing. That
witness, who lived on the floor below where the stabbing
occurred, told Stange that at around 1:40 a.m. he heard a
knock at a side door that led to the upstairs apartment. After
Nos. 11-2906 & 12-2950 3
hearing noises, the witness went out to the front porch
where he saw someone wearing a dark hooded sweatshirt
run around the house and then head west on 44th Street. The
witness’s upstairs neighbor shouted from the front yard,
“Call the cops. I’ve been stabbed.” The victim told the
witness, who told Stange, that although the person who
stabbed him was wearing a ski mask, he believed it was his
ex-wife’s boyfriend.
The sergeant in charge informed Gonzalez that the
suspect fled west on 44th Street (the street on which the
home was located) for one block and then headed south on
21st Avenue. Gonzalez walked that route until he reached
the gas station one block west and one block south—at the
corner of 21st Avenue and 44th place. As Gonzalez
approached the gas station, he saw Miller’s red car idling in
a corner of the gas station. And as he got closer, he saw
Miller exit the car drinking a beer. In answer to Gonzalez’s
inquiry, Miller denied seeing anyone running in the area.
Gonzalez asked Miller his name to which Miller, knowing he
was on probation, was driving without a license, and had
been seen exiting his car with a beer, replied with the fake
name, “Julius Johnson.” When Gonzales asked Miller if he
was on probation, Miller admitted that he was indeed on
probation for burglary and disorderly conduct. Miller, who
was becoming increasingly fidgety and nervous over the
course of the exchange, placed his hands in his front pockets.
Gonzalez instructed Miller to take his hands out of his front
pockets and not to run. Miller switched his hands from his
front pockets to his back pockets, took a step backwards and
took off running with Gonzalez in pursuit.
4 Nos. 11-2906 & 12-2950
Serendipitously, Miller headed north on 21st Avenue and
then east on 44th Street, directly back toward the scene of
the stabbing. Gonzalez’s sergeant, who had been at the gas
station, radioed Stange, who was still at the scene of the
stabbing, that Gonzalez was pursuing a suspect and that
they were headed in his direction. Stange emerged from the
house in time to see Gonzalez chasing Miller east on 44th
Street straight toward him. As Stange came down from the
porch and identified himself as a police officer, Miller darted
to the left and jumped a chest high chain link fence into a
small yard.
As with his other choices that evening, this one was ill
conceived. The yard was only six to seven feet wide by eight
to ten feet deep. It was enclosed on the south and east sides
by the chest high chain link fence, on the west side by the
side of the garage, and on its north side by a tall wooden
fence. The yard was overgrown with tall weeds and had a
light shining into it from a nearby source. Once he jumped
the fence, Miller was trapped. The wood fence and garage
blocked the north and west of the yard respectively and
Gonzalez was approaching from the south. Stange jumped
the south fence after Miller and, with his gun drawn,
ordered Miller to the ground. In response to Stange’s
command, Miller turned around, took a few steps away
from the wooden fence, lay down on his stomach, and
placed his arms spread-eagle out to his sides. According to
Stange’s version of the facts, Miller kept his arms under his
body and ignored his repeated commands to place his hands
behind his back, but because this case comes before us from
a motion for summary judgment, we take all of the facts,
Nos. 11-2906 & 12-2950 5
including this one, in the light most favorable to Miller, and
construe all reasonable inferences from the evidence in his
favor. Townsend v. Cooper, No. 12–3620, 2014 WL 3511731, *5
(7th Cir. July 17, 2014).
At this point, Miller was lying on the ground with his
head pointing south toward 44th street and close to the chain
link fence, his feet pointing north toward the wooden fence,
and his face was on the ground turned to the east, toward
the eastern side of the chain link fence. Seconds after Miller
lay down on the ground in response to Stange’s order,
Gonzalez arrived. Gonzalez testified that he could not see
Miller at all. Miller does not dispute this, but argues that he
submitted competent evidence that the yard was lighted
from a nearby source, and that any weeds in the yard did
not cover the entire area such that they would hide him from
view. Relying on this evidence, Miller asserts, a jury could
reasonably discredit Gonzalez’s claim that he could not see
that Miller was spread-eagle on the ground and thus no
longer a threat to anyone—an assertion we will explore
more below. Gonzalez jumped the chain link fence and
landed directly on Miller’s head, breaking his left jaw.
As the officers handcuffed Miller and walked him to the
car, Miller continued to resist and told Gonzalez, “You ain’t
have to break my jaw.” In response, Gonzalez said, “I told
you not to run.”
On the way to the squad car, Miller told the officers, “I
ain’t going to say anything about this. Just let me go.” The
officers declined the deal and instead insisted that Miller
receive medical care at the hospital where he had emergency
surgery to repair his broken jaw. Miller’s jaw was wired shut
6 Nos. 11-2906 & 12-2950
for about six weeks and he was placed on a liquid diet and
had pain that could not be controlled with over-the-counter
pain medication. Miller now complains of a persistent click
in his jaw when he opens his mouth.
Miller filed suit against Officers Stange and Gonzalez
under 42 U.S.C. § 1983 claiming that the officers violated his
Fourth Amendment rights by using excessive force during
his arrest. Specifically, Miller alleged that Gonzalez used
excessive force when he fractured Miller’s jaw and that
Stange was liable for failing to prevent Gonzalez from
injuring him.
Gonzalez and Stange filed a motion for summary
judgment arguing that no reasonable jury could find that
their actions were objectively unreasonable because Miller’s
injuries resulted from an accident rather than through
intentional acts, and that if it was purposeful, the force was
reasonable given the circumstances that Miller might have
been the stabbing suspect and that Gonzalez jumped the
fence to assist a fellow officer who might have been being
attacked. Stange argued that Miller’s claim against him was
factually unreasonable and legally insufficient because he
was not in a position to intervene and he could not have
anticipated nor prevented Gonzalez from injuring Miller.
Finally, both defendants argued that they were entitled to
qualified immunity because they did not violate a
constitutional right.
The district court granted summary judgment to both
officers. The court agreed that Stange “did not have time to
do anything” to prevent the blow, and rejected as too “far
fetched” the theory that Gonzalez could jump the fence and
Nos. 11-2906 & 12-2950 7
land in a darkened, overgrown yard with enough precision
to intentionally strike Miller’s jaw. (R.62, p.8,9). For that
reason, the court concluded that Miller had not shown any
evidence of “intentional use of force that could be deemed
excessive.” Id. at 8. Because it found that the officers had not
violated Miller’s Fourth Amendment rights, the court did
not reach the issue of qualified immunity.
After the district court entered judgment, Miller moved
for relief under Federal Rule of Civil Procedure 60(b), based
on a newly discovered written statement of the stabbing
victim. In the statement, the victim reports that his assailant
“appeared to be” a white male. Miller argued that this
evidence undercuts the grant of summary judgment because
he is a light-skinned African American thereby vitiating the
reasonableness of Gonzalez’s suspicion that he had
committed a serious crime. Miller also pointed out that the
police reports made no mention of a red vehicle. The court
denied the motion, stating that the evidence would not
change the outcome of the case. We have consolidated
Miller’s separate appeals from his underlying judgment and
the denial of his Rule 60(b) motion.
On appeal Miller argues that we should vacate the grants
of summary judgment. He contends that a reasonable jury
could find that Gonzalez intentionally used excessive force
during his arrest, and that Stange could have prevented it.
Miller also argues that the statement of the stabbing victim
he submitted with his Rule 60(b) motion should have caused
the court to vacate the judgment against him because he
showed that, during the chase, Gonzalez could not have
reasonably believed that he was the stabbing suspect.
8 Nos. 11-2906 & 12-2950
II.
We begin our de novo review of the grant of the motion
for summary judgment against Stange, as the facts involving
the claim against him are simpler. We review those facts in
the light most favorable to Miller, the non-movant and
construe all reasonable inferences from the evidence in his
favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, (1986);
Townsend, 2014 WL 3511751 at *1.
A police officer can be liable for another officer’s
excessive force only if that officer had a realistic opportunity
to intervene and stop the first officer’s actions. See Sanchez v.
City of Chicago, 700 F.3d 919, 925–926 (7th Cir. 2012); Miller v.
Smith, 220 F.3d 491, 495 (7th Cir. 2000); Yang v. Hardin, 37
F.3d 282, 285 (7th Cir. 1994). A “realistic opportunity” means
a chance to warn the officer using excessive force to stop. See
Abdullahi v. City of Madison, 423 F.3d 763, 774 (7th Cir. 2005).
But Stange had no reason to think that Gonzalez would
strike Miller when he jumped into the yard, and thus no
time to act until after the one blow to the jaw was over. Even
if Stange thought Gonzalez was using excessive force, he
could not have known it until the moment that Gonzalez
landed on Miller’s jaw, and by then it was too late. Even
Miller claims that he did not see Gonzalez until the officer
was “flying over the fence.” (R. 53, p.2; R. 45–2, Deposition
of Julian Miller at 51.). Miller argues that a jury could
reasonably find that Stange had reason to believe that
Gonzalez would jump over the fence into the yard and, in
doing so, strike Miller. But Miller’s speculation, hunches and
intuition cannot defeat summary judgment. Payne v. Pauley,
337 F.3d 767, 772 (7th Cir. 2003). Nor can Miller thwart
Nos. 11-2906 & 12-2950 9
summary judgment by speculating as to Stange’s state of
mind. Id. Miller admits that Stange and Gonzalez did not
plan the chase, the capture, or the arrest. And it is
undisputed that Stange and Gonzalez were not together and
therefore did not have time to confer or plan any sort of use
of force or positioning of Miller on the ground before Stange
jumped the fence. The only opportunity Stange would have
had to intervene would have been as he saw Gonzalez
jumping the fence, and by then there was no reasonable
opportunity to intervene. And because the alleged excessive
force was limited to this one act, there was no ongoing
ability to intervene. Under these facts, a jury could not find
that Stange is liable for failing to intervene. See Hadley v.
Gutierrez, 526 F.3d 1324, 1330–31 (11th Cir. 2008) (concluding
that officer was not liable for separate officer’s excessive
force because he could not have anticipated or stopped
officer’s single punch to plaintiff’s stomach); O’Neill v.
Krzeminski, 839 F.2d 9, 11–12 (2d Cir. 1988) (concluding that
non-intervening officer had no opportunity to prevent three
punches in quick succession to plaintiff, but could be liable
for later inaction while plaintiff was dragged across the
floor).
Gonzalez’s summary judgment motion, on the other
hand, falls on the other side of the line. Recall that our job
when assessing a summary judgment motion is not to weigh
evidence, make credibility determinations, resolve factual
disputes and swearing contests, or decide which inferences
to draw from the facts. McCann v. Iroquois Mem’l Hosp., 622
F.3d 745, 752 (7th Cir. 2010); Payne, 337 F.3d at 770.
10 Nos. 11-2906 & 12-2950
Sometimes the heftiness of the evidence on one side, or
the credulity of a particular litigant makes our task of
suspending factual and credibility determinations difficult,
but whatever the difficulty, we must stick to the task on
summary judgment. Payne, 337 F.3d at 771. That is, summary
judgment is not appropriate “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248. We must therefore
construe the record in the light most favorable to the
nonmovant and avoid the temptation to decide which
party’s version of the facts is more likely true. Shepherd v.
Slater Steels Corp., 168 F.3d 998, 1009–10 (7th Cir. 1999).
The district court concluded that Miller lacked sufficient
evidence that Gonzalez’s blow was intentional. But it is
difficult to imagine—short of an admission from Gonzalez—
what other evidence Miller could present of Gonzalez’s
intent. The district court discredits Miller’s assertion that
Gonzalez could see him when he jumped over the fence,
reasoning that Gonzalez had no reason to know where in the
“dark, overgrown yard” Miller was hidden. But according to
Miller, Gonzalez could see him from outside the yard and
knew that he was subdued. Miller asserts that the officer was
considerably taller than the chain-link fence, the area was
illuminated by nearby lighting, and Gonzalez had enough
time to see Miller on the ground because Miller was
prostrate for ten to twelve seconds before Gonzalez jumped
over the fence and struck him. Under this version of events,
it is an unremarkable stretch to conclude that Gonzalez may
have, as Miller alleges, deliberately dropped his knee with
Nos. 11-2906 & 12-2950 11
his body’s full weight onto Miller’s jaw, even though Miller
was no longer resisting arrest.
The district court appears to have been crediting
Gonzalez’s version of the facts instead. The district court
concluded that “Officer Gonzalez was in pursuit on foot and
followed the plaintiff and another officer over the fence and
into a yard. In doing so, he stumbled and fell and his knee
landed on the plaintiff’s jaw.” (R.62, p.8). But this was
Gonzalez’s account of events from his affidavit, not Miller’s.
A jury could also infer from the exchange immediately
thereafter that Gonzalez did indeed intend to injure Miller.
Miller exclaimed, “You ain’t have to break my jaw!” and
Gonzalez replied “I told you not to run.” Of course one
interpretation is that Gonzalez was merely stating the
unremarkable truism that [he] had ordered Miller to halt
and he disobeyed. But Miller’s alternate interpretation—that
Gonzalez was implying that he was retaliating against Miller
for his decision to run—is not inherently implausible. Cf.
Richman v. Sheahan, 512 F.3d 876, 882 (7th Cir. 2008) (noting
that bad blood between arresting officers and arrestee could
allow jury to infer, “if just barely,” that officers were
attempting to punish, and not just arrest him). Deciding
which inference to draw from the conversation is the task of
a fact finder. Anderson, 477 U.S. at 255; Payne, 337 F.3d at 770.
The district court also concluded that it is too implausible
that Gonzalez could have aimed for and struck Miller’s face
in the dark, but the question of implausibility begs the
question: According to Miller, when Gonzalez arrived at the
enclosed yard, he could see for at least ten seconds that
Miller lay motionless on his stomach, at gunpoint, and with
12 Nos. 11-2906 & 12-2950
his arms outstretched. Despite Miller’s exhibited and
observed passivity, Gonzalez jumped the fence and used the
weight of his body to strike Miller’s jaw. The district court’s
decision ultimately rests on the proposition that an
accidental use of force cannot be excessive under the Fourth
Amendment. But whether Gonzalez’s use of force was
accidental is precisely the disputed question—a question
that cannot be resolved on this record given the competing
versions of the event. See Pauley, 337 F.3d at 770 (“Where the
parties present two vastly different stories … it is almost
certain that there are genuine issues of material fact in
dispute.”).
Finally Miller also asserts that the discrepancy between
Gonzalez’s police report and his affidavit provides further
evidence that a jury might use to conclude that Gonzalez
was manipulating facts to cover up his intentional use of
force. In his police report Gonzalez states that he “jumped
the fence slipped on the wet grass and dove to help [police
officer] Stange. I then landed on the suspect and heard him
yell out Man you landed on my jaw.” (R. 52–10, p. 1). In his
affidavit he states that he “fell forward off of the fence” and
landed on Miller. (R. 49, p. 3). Perhaps, as the defendants
point out, this is merely the result of slightly different
wording rather than an actual material discrepancy, but such
a determination is one for a fact-finding jury.
Having concluded that Miller, if believed, has presented
evidence from which a rational jury could determine that
Gonzalez deliberately inflicted the blow that broke his jaw,
we must also reject Gonzalez’s alternative argument that the
use of such force was reasonable under the circumstances.
Nos. 11-2906 & 12-2950 13
In assessing whether an officer’s use of force violates the
Fourth Amendment, we ask whether the officer’s actions are
objectively reasonable in light of the information known at
the time of an arrest. See Phillips v. Cmty Ins. Corp., 678 F.3d
513, 519–20 (7th Cir. 2012); Common v. City of Chicago, 661
F.3d 940, 943 (7th Cir. 2011); Marion v. City of Corydon,
Indiana, 559 F.3d 700, 705 (7th Cir. 2009). This question turns
on the “severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officers or
others, and whether [the suspect] is actively resisting arrest
or attempting to evade arrest by flight.” Graham v. Connor,
490 U.S. 386, 396 (1989). As will be clear from the discussion
that follows, Miller’s right to be free from the type of force
Gonzalez applied was “clearly established,” such that
Gonzalez is not entitled to qualified immunity. See Abbott v.
Sangamon Cnty., Ill., 705 F.3d 706, 725 (7th Cir. 2013);
Sallenger v. Oakes, 473 F.3d 731, 741 (7th Cir. 2007).
If Miller is believed, Gonzalez saw him subdued at
gunpoint, lying motionless and spread-eagled on the
ground, and then deliberately brought down his knee on
Miller’s jaw with enough force to break it. The officers
concede that under Miller’s version of events (which we
must credit at this point) he demonstrated only “passive
resistance,” that is, lying with his arms outstretched and
obeying every order except for the order to move his hands
behind his back. See, e.g., Phillips, 678 F.3d at 525. (describing
a willful refusal to obey a police officer’s order as “passive
resistance” warranting only a minimal use of force). Under
the aforementioned factors elucidated by the Court in
Graham (suspected crime, threat to officers, and resistance),
14 Nos. 11-2906 & 12-2950
the law is clearly established that police officers cannot use
“significant” force on suspects who are only passively
resisting arrest. See Abbott, 705 F.3d at 732 (citing cases
dating back to 1995).
This prohibition against significant force against a
subdued suspect applies notwithstanding a suspect’s
previous behavior—including resisting arrest, threatening
officer safety, or potentially carrying a weapon. See Jennings
v. Jones, 499 F.3d 2, 11, 16–18 (1st Cir. 2007) (officer who may
have deliberately broken ankle of no-longer-resisting suspect
was not entitled to qualified immunity even though suspect
had previously been actively resisting arrest, police could
not see suspect’s hands as they were trapped under his
body, and police reasonably believed the suspect had
weapon); Smith v. Mattox, 127 F.3d 1416, 1419–20 (11th Cir.
1997) (officer who intentionally broke suspect’s arm during
handcuffing, after suspect submitted to an order to lie on the
ground was not entitled to qualified immunity even though
the suspect had threatened officer’s safety, and had resisted
arrest by running away); see also Cyrus v. Town of
Mukwonago, Wisconsin, 624 F.3d 856, 863 (7th Cir. 2010) (force
that is reasonable while a suspect poses a threat may no
longer be reasonable as the threat decreases); Ellis v.
Wynalda, 999 F.2d 243, 247 (7th Cir. 1993) (same).
By Miller’s account he was visible to Gonzalez and had
been motionless for upwards of ten seconds, at gunpoint,
when Gonzalez kneed him in the jaw. If true, this situation is
distinguishable from the situation in Johnson v. Scott, 576 F.3d
658, 660 (7th Cir. 2009), upon which Gonzalez relies. In
Johnson, a shooting suspect fled from police until he was
Nos. 11-2906 & 12-2950 15
cornered in a residential yard. Id. at 659. Literally moments
after the suspect turned and offered to surrender, he was
bitten by the pursuing officer’s dog and the officer struck
him several times until he was handcuffed. Id. at 659–60. In
affirming the district court’s grant of summary judgment on
Johnson’s excessive-force claim, we ruled that, while officers
may not continue to use force against a subdued suspect,
Johnson was not yet known to be subdued when his
pursuers applied force. Id. at 660. The critical fact in Johnson
was that the officer “had no idea how Johnson was going to
behave once he was cornered.” Id. at 660. Unlike the
arresting officer in Johnson, by Miller’s account, Gonzalez
could see that he was prone and subdued at gunpoint. Given
this, it would not be objectively reasonable to break Miller’s
jaw to effectuate arrest (or to protect the officers),
notwithstanding his previous attempt to flee. And as the
cases cited above demonstrate, this was clearly established at
the time of Miller’s arrest.
As for Miller’s Rule 60(b) motion, Miller argued that the
newly discovered evidence that Miller sought to introduce
through the motion would change the outcome on summary
judgment because it precluded the district court’s finding
that Gonzalez acted reasonably. Because we are vacating
and remanding the grant of summary judgment for
Gonzalez, Miller’s Rule 60(b) motion is no longer at issue.
For all of these reasons, we VACATE the grant of
summary judgment in favor of Gonzalez and remand for
further proceedings consistent with this opinion. In all other
respects, the judgment is AFFIRMED.
16 Nos. 11-2906 & 12-2950
CUDAHY, Circuit Judge, dissenting in part. I agree that the
judgment for Officer Stange must be affirmed. But, I am also
convinced that there is insufficient evidence supporting Mr.
Miller’s claim that somehow Officer Gonzalez jumped over
the fence in an obscure area and deliberately broke Mr.
Miller’s jaw while he was lying on his stomach. The evidence
Mr. Miller has presented simply does not create a plausible
story, even viewing the skimpy evidence in Miller’s favor as
we must on summary judgment review. Accordingly, I
would affirm the judgment for Officer Gonzalez as well.