Phillips v. Community Ins. Corp.

In the

United States Court of Appeals
For the Seventh Circuit

No. 10-1654

T AMARA P HILLIPS,
Plaintiff-Appellant,
v.

C OMMUNITY INSURANCE C ORPORATION, et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 2:06-cv-01041—William E. Callahan, Jr., Magistrate Judge.

A RGUED O CTOBER 25, 2010—D ECIDED A PRIL 27, 2012

Before W OOD , W ILLIAMS, and T INDER, Circuit Judges.
W ILLIAMS, Circuit Judge. Tamara Phillips contends that
police officers used excessive force in arresting her
when they shot her four times in the leg with an SL6
baton launcher after she disregarded their orders to
come out of her car. Phillips’s case was tried to a jury,
which returned a verdict in the officers’ favor. Phillips
appeals, contending that the district court erroneously
denied her post-verdict motion for judgment as a matter
2 No. 10-1654

of law. Because we find that the officers used excessive
force and are not entitled to qualified immunity,
we reverse.

I. BACKGROUND
The facts in this case are largely undisputed. Around
7:00 p.m. on November 11, 2005, Lieutenant Russell Jack
and Officer James Hoffman from the Waukesha Police
Department received a dispatch reporting a possibly
intoxicated driver. The original caller described a black
car that was “all over the road.” After running the car’s
plates, police dispatch initially informed officers that the
plates “hit” to a black Nissan Maxima that had been
reported stolen.
Shortly afterward, a responding officer, Brandon
Pierce, pulled up the stolen vehicle record from his
squad car and called in to note that the “hit” was to a
car with the same license plate number but a different
color, make, and model—a silver Honda Civic. The
police dispatcher noted the discrepancy, stating that
the original caller had specified that the drunk driver
was in a black Nissan Maxima. Lieutenant Jack asked
the dispatcher to contact the original caller to verify the
car’s color and make. Though the caller could not be
reached, the dispatcher checked the vehicle record again
and alerted officers that, “the listed owner on the
Nissan Maxima is the complainant for the vehicle
theft on the Honda Civic, silver in color with that plate
assigned. So I am unsure why that plate is reassigned
to the Nissan Maxima.” Both cars were registered to the
No. 10-1654 3

same person: Tamara Phillips. Officer Hoffman later
testified that there was confusion surrounding the car,
the license plates it bore, and the fact that the plates
“hit” to a different vehicle.1
Within several minutes of receiving the dispatch, the
officers located the black Nissan Maxima, with its
door ajar, on a sidewalk near an apartment complex.
The driver had backed the car into a hedgerow. Behind
the hedgerow, there was an electrical box and a five-foot
drop-off into a neighboring parking lot. It is unclear
whether the car was still running, but the officers
testified that they believed it was because its lights
were on.
Officer Hoffman stated that the incident was treated
as a “high-risk traffic stop” because the car was believed
to be stolen, had stopped in a residential area, and
was pointed toward the street in the direction of the
officers. During a high-risk traffic stop, instead of
walking up to a car and exposing themselves to
potential danger, the officers will order the driver to
shut off the car, put the keys outside, step out, and walk
to a safe location where the person can be placed in
custody.
With the help of several other officers who had since
arrived at the scene, seven squad cars were strategically

1
It was later determined that Phillips had bought the Nissan
Maxima, after her other car, the Honda Civic, was stolen. The
Department of Transportation had reissued the same license
plate number for the new Nissan Maxima despite a general
policy barring reuse of license plate numbers from stolen cars.
4 No. 10-1654

placed around the Nissan Maxima. Once the squad cars
were in place, Lieutenant Jack radioed the dispatch and
said, “We have the person secured here, not in hand-
cuffs, but stabilized in the car.” Officer Hoffman pointed
his squad car’s headlights and spotlight toward the
vehicle to illuminate its interior. He saw one person
inside—a female driver who, at least initially, was
moving about inside the car.
The officers, who were equipped with body shields for
protection, identified themselves as police and loudly
commanded the driver to show her hands and get out of
the car. The driver did not comply, but instead reached
for a compartment in the vehicle and lit a cigarette.
At one point, the driver put both of her feet out of the
driver-side window onto the door, resting them near
the side-view mirror, while she leaned back toward
the center console. She also picked up a water bottle
and set it on the ground beside the car.
The officers estimated that they gave orders to the
driver continuously for ten minutes before deciding to
use their SL6. The SL6 Baton Launcher is a shoulder-
fired, semi-automatic firearm that fires polyurethane
bullets with a force equivalent to a .44 magnum pistol.
Its use has been deemed “less lethal” by the Waukesha
Police Department’s use of force policy, and is con-
sidered tantamount to using a bean-bag shotgun or a
hand baton. The “target area” for an SL6 is below a per-
son’s belly button, excluding the groin. The officers
testified that the SL6 is designed to be used against
persons exhibiting resistive, assaultive, or other dan-
gerous behavior.
No. 10-1654 5

Officer Hoffman was 40 to 50 feet away from
Phillips’s car when he fired a warning shot, which hit
the vehicle with a loud bang and left a baseball-sized dent
on the driver-side door. The officers then waited five
minutes while they issued commands ordering the
driver to get out of the car. At this point, the driver
was lying on the front seat toward the center console
with her bare legs outside the front driver-side door of
the car and her feet on the ground.
When the driver did not comply, the officers aimed at
her leg and fired. A few seconds later, the driver yelled
out in pain and reached down to her legs, but she did
not pull them back into the car or otherwise attempt
to protect herself. Another fifteen seconds passed and
the officers fired again. The driver did not move. The
officers waited another three seconds and shot again.
The driver again did not move. After another three sec-
onds, the officers fired again, hitting her a fourth time.
This time, the driver complied by “slumping” out of the
car and kneeling on the ground. Lieutenant Jack then
ordered the driver to stand back up and walk back-
wards toward him or she would be shot again. The
driver did as she was told and the officers arrested her.
Plaintiff-Appellant Tamara Phillips, who turned out to
be the very drunk driver—yet lawful owner of the car,
sustained two injuries on the inside of her lower right
leg in the ankle area and two other injuries to her upper
left leg. The most serious injury was to her right ankle,
where one of the bullets left a six-inch wound requiring
thirty stitches because the flesh was torn from the bone.
6 No. 10-1654

Phillips, who works as a personal trainer, was unable
to walk for a week, and walked with a cane for approxi-
mately three weeks.
On September 5, 2006, Phillips sued, claiming that
the officers had used excessive force in arresting her.
The case was tried twice. The first trial ended in a dead-
locked jury and the court declared a mistrial. The
second trial resulted in a verdict for the officers. After
the verdict, Phillips moved for judgment as a matter of
law, or, in the alternative, for a new trial. The court
denied the motion. This appeal followed.2

2
We note that Phillips did not move for judgment as a matter
of law before the case was submitted to the jury as required by
Federal Rule of Civil Procedure 50(a)(2). Normally, a party
that does not move for judgment as a matter of law before
the case goes to a jury loses the opportunity to make this
motion after the verdict. See Collins v. Illinois, 830 F.2d 692,
698 (7th Cir. 1987). Here, however, the defendants waived
objection to Phillips’s procedural default by failing to raise
this issue on appeal. See id. (considering judgment as a matter
of law even though the plaintiff did not move for a “directed
verdict” under Rule 50(a) because defendant failed to object);
see also Williams v. Runyon, 130 F.3d 568, 572 (3d Cir. 1997) (“Six
of our sister circuits have held that where a party did not
object to a movant’s Rule 50(b) motion specifically on the
grounds that the issue was waived by an inadequate Rule
50(a) motion, the party’s right to object on that basis is
itself waived.”) (citing cases). Even after Unitherm Food
Systems, Inc. v. Swift-Eckrich, Inc., 546 U.S. 394 (2006), which
reemphasized the strict requirements of Rule 50, we have held
(continued...)
No. 10-1654 7

II. ANALYSIS
We review a district court’s denial of a motion for
judgment as a matter of law de novo, asking whether
the evidence presented, combined with all reasonable
inferences permissibly drawn from it, is sufficient to
support the verdict when viewed in the light most favor-
able to the party winning the verdict. Artis v. Hitachi
Zosen Clearing, Inc., 967 F.2d 1132, 1139 (7th Cir. 1992). For
Phillips to be entitled to judgment as a matter of law,
the officers must have used excessive force in arresting
Phillips in violation of her Fourth Amendment right to
be free from unreasonable searches and seizures. See
McAllister v. Price, 615 F.3d 877, 884 (7th Cir. 2010). Fur-
thermore, for Phillips to prevail, the officers must not be
entitled to qualified immunity for their conduct.3 See

2
(...continued)
that “[a party’s] challenge to [the opposing party’s] failure
to adhere to the procedural requirements of Rule 50(a) . . . is
waivable.” See Wallace v. McGlothan, 606 F.3d 410, 418-19 (7th
Cir. 2010) (noting the Supreme Court’s decision in Unitherm).
3
Phillips briefly contends, without citing any authority, that
whether the officers are entitled to qualified immunity is not
properly before us because, although the officers moved for
judgment as a matter of law under Rule 50(a) before the jury
rendered its verdict, the officers did not renew their motion
after the verdict under Rule 50(b). But there was no need for
the officers to renew their motion because they were the
prevailing parties, having obtained a jury verdict in their
favor. See Advisory Committee Notes to Rule 50 (noting that
(continued...)
8 No. 10-1654

Pearson v. Callahan, 129 S. Ct. 808, 818 (2009).

A. Constitutional Violation
The nature and extent of force that may reasonably
be used to effectuate an arrest depends on the specific
circumstances of the arrest, including “the severity of
the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others,
and whether he is actively resisting arrest or attempting
to evade arrest by flight.” Graham v. Connor, 490 U.S. 386,
396 (1989). “Determining whether the force used to
effect a particular seizure is ‘reasonable’ under the
Fourth Amendment requires a careful balancing of ‘the
nature and quality of the intrusion on the individual’s
Fourth Amendment interests’ against the countervailing
governmental interests at stake.” Id. (quoting United
States v. Place, 462 U.S. 696, 703 (1983)). An officer’s use
of force is unreasonable if, judging from the totality of the
circumstances at the time of the arrest, the officer uses
greater force than was reasonably necessary to effectuate
the arrest. Gonzalez v. City of Elgin, 578 F.3d 526, 539 (7th
Cir. 2009). We must also bear in mind when considering
the totality of the circumstances that “police officers

(...continued)
“a jury verdict for the moving party moots the issue”). It
would waste time and resources to require a party to move
for judgment as a matter of law under Rule 50(b), formerly
denominated “judgment nothwithstanding the verdict,” if
that party has obtained a jury verdict in its favor.
No. 10-1654 9

are often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly
evolving—about the amount of force that is necessary in
a particular situation.” Graham, 490 U.S. at 397. This con-
stitutional inquiry is objective and does not take
into account the motives or intent of the individual
officers. Id.
Objective reasonableness of force is a legal determina-
tion rather than a pure question of fact for the jury to
decide. Bell v. Irwin, 321 F.3d 637, 640 (7th Cir. 2003). We
defer to a jury’s determination of what occurred during
an arrest or whose testimony is credible. But a constitu-
tional tort is not “an analog of civil negligence.” Id. In a
traditional negligence case, we permit the jury to deter-
mine whether conduct was reasonable under the cir-
cumstances. In an excessive force case, while we accept
the factual inferences made by the jury, we must indep-
endently review the jury’s interpretation of what is rea-
sonable under the Fourth Amendment. Id.; cf. Ornelas
v. United States, 517 U.S. 690, 697 (1996) (“A policy of
sweeping deference [by appellate courts to factfinders’
determinations of probable cause] would permit . . . the
Fourth Amendment’s incidence to turn on whether dif-
ferent [factfinders] draw general conclusions that the
facts are sufficient or insufficient to constitute probable
cause. Such varied results would be inconsistent with
the idea of a unitary system of law.” (internal quotation
marks, alterations, and citation omitted)).
Independent review is particularly warranted when,
as here, the material facts of the case are essentially
10 No. 10-1654

uncontroverted. Although she testified at trial, Phillips
was unable to offer a description of the arrest because
she had very little memory of the incident and could
only “recall bits and pieces.” The officers’ account was
the only complete version provided to the jury and it
did not conflict with Phillips’s testimony. Any ambigu-
ities in the record we construe in the defendants’ favor.4

4
The dissent argues that judgment as a matter of law is
unwarranted “because the evidence surrounding [an] officer’s
use of force is often susceptible of different interpretations.”
Dissent Op. at 33 (quoting Cyrus v. Town of Mukwonago, 624
F.3d 856, 862 (7th Cir. 2010)). We certainly agree that summary
judgment is frequently inappropriate in excessive-force cases.
But we do not agree that there are conflicting interpretations
of the record that support the amount of force used in this
case. Abdullahi v. City of Madison is not to the contrary. 423
F.3d 763 (7th Cir. 2005). In Abdullahi, an arrestee suffocated
from a lung injury of unknown origin. Medical experts
offered dueling testimony at trial as to whether the arresting
officers’ use of force could have caused the severe lung
trauma. Id. at 766-67. Reversing the district court, we held
that it was for the jury to infer whether officers caused the
injury by kneeling on the arrestee’s back or whether the in-
jury was sustained prior to a struggle with police. Id. at 769-70.
The current case does not present a similar set of competing
facts or inferences. Consequently, “whether four shots was
too many under the circumstances” is not a question of
factual inferences but a determination of what is objectively
reasonable under the Fourth Amendment. Dissent Op. at 34.
When warranted, we and our sister circuits have recon-
sidered jury verdicts in favor of officers for violations of the
(continued...)
No. 10-1654 11

This leaves us to consider the core constitutional question:
whether use of multiple shots from an SL6 weapon to
secure a non-resisting, intoxicated arrestee amounted
to excessive force under these circumstances.
Phillips contends that the Graham factors weigh in her
favor because she posed no immediate threat to anyone
during the arrest, offered no resistance, and made no
attempt to flee. The defendants argue that their use
of the SL6 was justified because Phillips was drunk,
may have been driving a stolen car, and presented a
potential threat to the officers and the community.

1. Amount of Force Employed by the SL6 Weapon
To determine whether a constitutional violation has
occurred, we first evaluate the level of force used to
arrest Phillips. The record establishes that the force
exerted by an SL6 bullet is roughly comparable to a
projectile from a bean-bag shotgun. Other courts of
appeals have observed that baton launchers and similar
“impact weapons” employ a substantially greater degree
of force than other weapons categorized as “less lethal,”

4
(...continued)
Fourth Amendment. See Campbell v. Miller, 499 F.3d 711, 718-19
(7th Cir. 2007) (reversing jury verdict on reasonableness of
strip search in public); see also Manzanares v. Higdon, 575 F.3d
1135, 1144 (10th Cir. 2009) (reversing jury verdict on probable
cause); Mitchell v. Boelcke, 440 F.3d 300, 303 (6th Cir. 2006)
(reversing jury verdict on reasonable suspicion to detain
plaintiff).
12 No. 10-1654

such as pepper spray, tasers, or pain compliance tech-
niques. In Deorle v. Rutherford, the Ninth Circuit con-
sidered a bean-bag shotgun projectile as “something akin
to a rubber bullet.” 272 F.3d 1272, 1280 (9th Cir. 2001).
Deorle concluded that “the cloth-cased shot constitutes
force which has the capability of causing serious
injury, and in some instances does so.” An officer pro-
vided expert testimony that a “Use of Force Continuum . . .
would list an impact weapon high on the schedule
of force” and that “[i]t would be unreasonable for an
officer to use an impact weapon on an unarmed person.”
Id. at 1280 & n.17 “Such force is much greater than
that applied through the use of pepper spray . . . or a
painful compliance hold . . . .” Id. at 1279-80 (citations
omitted); see also Thompson v. City of Chicago, 472 F.3d
444, 451 & nn.18-19 (7th Cir. 2006) (officer testimony
regarding Chicago Police Department policies limiting
use of “impact weapons” to “high-level, high-risk assail-
ants” and describing such weapons as “unwarranted
against a suspect resisting arrest” by punching and strug-
gling); Mercado v. City of Orlando, 407 F.3d 1152, 1157
(11th Cir. 2005) (observing that the SL6 weapon “is classi-
fied as a ‘less lethal’ munition, [but that local] police
regulations recognize that it can be used as a deadly
weapon.”).
In Bell, the district court treated bean-bag rounds used
by officers “as a species of deadly force.” 321 F.3d at
639. But we found the record insufficient to determine
whether such rounds should be considered deadly as
a matter of law; we concluded only that they were “less
lethal than bullets or buckshot.” Id.; see also Omdahl v.
No. 10-1654 13

Lindholm, 170 F.3d 730, 733 (7th Cir. 1999) (declining to
resolve parties’ dispute over “whether the use of bean
bag projectiles constituted deadly force or merely a
higher level of force along a ladder of escalating force.”)
“For a particular application of force to be classified as
‘deadly,’ it must at least carry with it a substantial risk
of causing death or serious bodily harm.” Estate of Phillips
v. City of Milwaukee, 123 F.3d 586, 593 (7th Cir. 1997) (em-
phasis added) (internal quotations marks and citations
omitted). Direct analogy to the above cases cannot be
dispositive because impact weapon technology varies
from case to case, as do the manner and circumstances
when officers deployed impact rounds. Nevertheless,
multiple SL6 shots fired with force equivalent to a .44
magnum pistol at the same part of an arrestee’s body
clearly have the potential to cause serious injury, even
when aimed at the lower body. Indeed, this is what
happened to Phillips when the SL6 rounds tore flesh
from her ankle, requiring a lengthy, painful recovery. As
in Bell, this record does not permit us to determine
whether multiple SL6 rounds aimed at the lower body
carry a substantial risk of serious bodily harm per se. But
we conclude from the case law and from the extent of
Phillips’s injuries that the force used during her arrest
was at least on the high-end of the spectrum of less-
lethal force. In other words, when balancing the “nature
and quality of the intrusion” against the “governmental
interest at stake,” we conclude that the intrusion upon
14 No. 10-1654

Phillips’s Fourth Amendment rights was significant.5
Such force, whether or not it inherently carries a sub-
stantial risk of serious bodily harm, “is not to be
deployed lightly.” Deorle, 272 F.3d at 1272, 1279.
In Smith v. Ball State University Board of Trustees, we
considered an excessive force claim brought by a
plaintiff who drove onto a sidewalk and nearly hit
several pedestrians while suffering from diabetic shock.
295 F.3d 763 (7th Cir. 2002). After the driver failed to
respond when police arrived at the scene, the officers
pulled him from the car. Id. at 766. We found that
officers reasonably believed the driver to be drunk and
“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.” Id. at 770.
Although he “was not actively resisting” during the
arrest, we held that “a reasonable officer who happened
on the scene could reasonably misconstrue [the driver’s]
unresponsiveness as resistance requiring the minimal use of
force.” Id. at 771 (emphasis added); see also McAllister,
615 F.3d at 883 (finding material issue of fact over con-
stitutionality of force used on semiconscious arrestee).

5
The amount of force inflicted by four SL6 shots further
distinguishes this case from those the dissent relies upon
involving use of pepper spray and pain compliance holds.
Indeed, in Padula v. Leimbach, we noted that “as a means of
imposing force, pepper spray is generally of limited intrusive-
ness.” 656 F.3d 595, 603 (7th Cir. 2011) (quoting Vinyard
v. Wilson, 311 F.3d 1340, 1348 (11th Cir. 2002)). The same
cannot be said of the force used upon Phillips.
No. 10-1654 15

The SL6 shots used on Phillips plainly exceeded the
“minimal” force permitted for the suspected drunk
driver in Smith.

2. Whether Officers Reasonably Believed Phillips’s
Car Was Stolen
Smith differs from this case in that the officers who
arrested Phillips testified that they believed she was
driving a stolen car. There was plainly some confusion
about the status of the vehicle on the night of the arrest.
But the officers contend on appeal that they never
received any information contradicting the initial
report that Phillips’s black Nissan was stolen. This is
incorrect. Officer Pierce checked the stolen vehicle
record and alerted his colleagues that a silver Honda
Civic had been reported stolen instead of the Nissan.6
Before officers found Phillips, the dispatcher confirmed
the initial mistake and attempted to clarify the con-
fusion: “[T]he listed owner on the Nissan Maxima is the
complainant for the vehicle theft on the Honda Civic,
silver in color with that plate assigned. So I am unsure

6
After dispatch reported the Nissan stolen, Officer Pierce
called in for “verification,” asking whether “the hit is on a
Honda Civic or Maxima,” and noting that “the plate number is
on a Civic.” Pierce also inquired, “the caller said the car was
black for sure? The hit is showing silver.” The dispatcher
acknowledged the discrepancy, confirming that the caller
who reported the drunk driving had “stated it was a black
Nissan Maxima.”
16 No. 10-1654

why that plate is reassigned to the Nissan Maxima.” In
other words, the officers were advised that the license
plate number was associated with two cars: a silver
Honda Civic that had been reported stolen and a black
Nissan Maxima with no report of being stolen but with
plates “reassigned” from the Honda. The defendants
admitted at trial that, before they located Phillips, the
dispatcher had clarified that “the Honda Civic was the
original stolen vehicle” and that there was no “informa-
tion . . . that the black Nissan Maxima was stolen.”
We do not doubt or reconsider the officers’ testimony
that they continued to believe they were dealing with
a stolen car. But the question remains whether it was
objectively reasonable for them to proceed on this as-
sumption in the face of the contradictory information
they received. At trial, Lieutenant Jack testified that the
police continued to treat Phillips’s black Nissan as
stolen because the Department of Transportation had a
general policy prohibiting reassignment of plates from
stolen cars to other vehicles. He also testified that the
discrepancy in the car’s reported color did not concern
him because owners often repaint their cars without
updating vehicle records with the Department of Trans-
portation. This may be true but it misses the essential
point: On the night of the arrest, the officers never en-
countered the Honda Civic confirmed as the stolen
vehicle. Though a car owner might repaint a vehicle
without updating public records, this would not change
the car’s make and model. And even if the Department
of Transportation would not typically reassign stolen
license plate numbers to another car, this does not alter
No. 10-1654 17

the fact that officers were advised a Honda had
originally been stolen rather than the Nissan with the
reported drunk driver. No department policy could
transform a Honda Civic into a Nissan Maxima. To con-
tinue believing Phillips was driving the car originally
reported stolen, officers had to disregard the caller’s
description of a different vehicle, as well as their own
direct observation of the Nissan Maxima during the 15-
minute standoff with the drunken Phillips.7
The conflicting information officers received could
cause legitimate confusion, but at a certain point con-
tinuing confusion becomes objectively unreasonable.
After the officers made the initial determination that
they were dealing with a car theft, they appear to have
had difficulty acknowledging subsequent information
challenging their assumption. This is not because the
officers were unaware of the discrepancy. The transcript
shows Lieutenant Jack engaged in communications over
the dispatch, with some transmissions directed to his
personal call number. Lieutenant Jack considered con-

7
Phillips also raises a puzzling argument that officers
should not have considered her car stolen because the
dispatch had made it clear that Phillips was the legal owner
of both the Honda and the Nissan. The defendants respond,
quite rightly, that they had no way of knowing who was
driving the car at the time of the arrest. But this dispute
is immaterial. Regardless of the driver’s identity, the question
is whether officers reasonably believed the black Nissan was
stolen after police dispatch informed them that a silver
Honda had been stolen instead.
18 No. 10-1654

tacting the original caller again to check whether he
may have misidentified the car as a black Nissan Max-
ima. “It is not objectively reasonable to ignore specific
facts as they develop (which contradict the need for this
amount of force), in favor of prior general information
about a suspect.” Cavanaugh v. Woods Cross City, 625
F.3d 661, 666 (10th Cir. 2010); cf. Fisher v. Harden, 398 F.3d
837, 843 (6th Cir. 2005) (finding it unreasonable for
officer to rely on reported information to determine
whether probable cause exists when direct observation
or other information undermines the earlier report).
We take care to judge the situation “from the perspec-
tive of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396.
We respect that the defendants’ central priority on the
night of the arrest was apprehending the reported drunk
driver and we sometimes defer to officers’ reasonable
misunderstanding of a particular scenario. In spite of
the contrary information the officers received, it could
be considered reasonable to take additional precautions
given the unusual circumstances surrounding the car’s
license plates. That is, the jury could have concluded
that it was initially reasonable to approach Phillips’s
vehicle using the procedures associated with high-risk
stops and to command Phillips to exit her car.
Nevertheless, at the time of the arrest, there was
clearly sufficient information to call into question
whether Phillips’s car was stolen. No “magical on/off
switch” controls the level of force permitted to effectuate
an arrest. Scott v. Harris, 550 U.S. 372, 382 (2007); Cyrus,
No. 10-1654 19

624 F.3d at 863. The original police dispatch reporting a
stolen black Nissan Maxima did not entitle officers to
proceed on an unshakable assumption that they were
pursuing a car thief. They could not simply ignore sub-
sequent information that a different car had been stolen
when they considered the appropriate amount of force
to use. Cavanaugh, 625 F.3d at 666. Even if some under-
standable confusion and caution remained, we conclude
that a reasonable officer would have been alert to the
potential need to mitigate force in arresting the driver. 8
The officers’ certainty that they were dealing with a
car theft was objectively unreasonable in light of the
contrary information they received.

3. Whether Officers Used Excessive Force in Shooting
Phillips Four Times with the SL6 Weapon
Even if the officers acted reasonably in treating the
arrest as a high-risk stop because of uncertainty surround-
ing the license plates, the force they used to apprehend
Phillips exceeded the level that was reasonable under
the circumstances. At trial, the officers stated repeatedly
that they believed Phillips was drunk. Officer Hoffman
testified that he initially suspected Phillips was passing

8
By the same rationale, in a case like Smith, if a police
dispatch alerted officers that a reported drunk driver also
suffered from epileptic seizures, we would expect reasonable
officers to take that information into account when weighing
the force necessary to effectuate the arrest. See McAllister,
615 F.3d at 883.
20 No. 10-1654

in and out of consciousness, though he later dismissed
this idea after seeing her move intermittently within the
car. Regardless of whether they believed Phillips was
conscious throughout the entire incident, the officers
knew they were dealing with an arrestee of diminished
capacity.
It is also clear that Phillips was never “actively re-
sisting arrest,” a touchstone of the Graham analysis. 490
U.S. at 396. Phillips never exhibited any sort of aggressive
behavior toward the officers before or after they located
her car, nor did she make any attempt to escape.9 The
officers argue that Phillips demonstrated continuous
“defiance” by failing to follow their commands to exit
the vehicle. This characterization strains credulity given
the circumstances. But viewing the evidence in the light
most favorable to the defendants, we presume that the
officers reasonably believed that Phillips heard their
orders and chose not to obey. Even so, leaving oneself
exposed to repeated police fire does not represent
“active resistance.” To the extent that Phillips’s per-
ceived conduct could be considered “resistance” at all,

9
The officers contend on appeal that Phillips “led them on a
several mile chase through the City of Waukesha.” This is
plainly false. The uncontested evidence at trial established
that the officers determined Phillips’s location from a bus
driver’s call and then found the stationary vehicle on a
sidewalk next to an apartment complex. Although the
officers searched for the car for several minutes before
receiving the tip from the bus driver, there was never
any “chase.”
No. 10-1654 21

it would have been passive noncompliance of a different
nature than the struggling that we have found warrants
escalation of force. Indeed, in Smith, we noted this dis-
tinction, finding that what the officers perceived as
willful noncompliance was not the same as “actively
resisting” but instead a passive “resistance requiring
the minimal use of force.” 295 F.3d at 771 (emphasis added);
see also Cyrus, 624 F.3d at 863 (no evidence suggesting
that the plaintiff “violently resisted” officers even if
plaintiff refused to release arms for handcuffing); Estate
of Escobedo v. Bender, 600 F.3d 770, 780-81 (7th Cir. 2010)
(plaintiff threatening suicide was not actively resisting
arrest even though he said he was intoxicated, had a
gun, and had barricaded himself in his room and
refused to come out for three hours); Mattos v. Agarano,
661 F.3d 433, 450 (9th Cir. 2011) (en banc) (“[W]e draw a
distinction between a failure to facilitate an arrest and
active resistance to arrest.”); Griffith v. Coburn, 473 F.3d
650, 653, 659 (6th Cir. 2007) (use of chokehold on
plaintiff who was leaning back but resisting only pas-
sively by trying to put arms behind his back and
refusing to cooperate with officer’s commands was unrea-
sonable).
The officers have argued that Phillips continued to
present a potential threat while she remained in the car
because they believed the vehicle was running and
could be used as a weapon. We have recognized this
risk, Smith, 295 F.3d at 770, and agree that officers
were entitled to use force to remove Phillips. But we
have never suggested that any level of force is per-
missible to extinguish such a threat. See McAllister,
22 No. 10-1654

615 F.3d at 885-86. To the contrary, “[f]orce is reasonable
only when exercised in proportion to the threat posed.”
Cyrus, 624 F.3d at 863 (citing Oliver v. Fiorino, 586 F.3d
898, 907 (11th Cir. 2009)). We must view the severe force
that officers used on Phillips in light of the fact that
any threat she presented had already been substantially
contained. The officers had her vehicle surrounded
with seven squad cars, and behind the vehicle there was
a steep drop-off. There was nowhere for Phillips to
go. Officer Hoffman himself told the dispatch that
the driver was “secured, not in handcuffs, but stabilized
in the car.” The scene was “secured” at least fifteen min-
utes before officers shot Phillips. During that time,
Phillips had given no indication that she intended to
harm the officers or anyone else.
This is not to say that officers had entirely eliminated
all danger after they surrounded the car. But the “desire
to resolve quickly a potentially dangerous situation is
not the type of government interest that, standing
alone, justifies the use of force that may cause
serious injury.” Deorle, 272 F.3d at 1281. The threat
Phillips presented cannot be characterized as “immedi-
ate.” See Graham, 490 U.S. at 396. When the officers
decided to use the SL6, Phillips was sprawled across
the front seat with her legs outside of the car and both
feet on the ground. Even to move into a position to
drive the car, Phillips would have had to, at a minimum,
sit up, bring her feet in, close the car door, and press
the gas pedal. Phillips never gave the officers a reason
to believe that she was about to do any of these things,
even after the officers fired a warning shot at her car door.
No. 10-1654 23

Cf. Estate of Starks v. Enyart, 5 F.3d 230, 233 (7th Cir. 1993)
(finding officers improperly used deadly force and
were not entitled to qualified immunity even though
escaping arrestee recklessly drove stolen taxicab
toward them). Other than taking her legs from the
window and putting them outside the car’s door, there
was no escalation or change in circumstances that
called for immediate action on the officers’ part.
Under the totality of the circumstances, it is a close
question whether officers acted reasonably in hitting
Phillips with the first SL6 round. But the multiple shots
fired certainly exceeded the level of force permissible
to effectuate the arrest. Phillips gave no reaction to
the first warning shot which put a baseball-sized dent
in the car. Then, after the first physical blow, Phillips
continued to remain in the same position, only yelling
in pain after being injured. She did nothing to escalate
the situation by actively resisting or attempting to
flee. Although the officers waited little before firing
additional shots, it was not because the circumstances
called for rapid action. Since Phillips’s only response
had been to reach down to her leg and cry out in pain,
the officers had time to pause and reevaluate the
level of force needed to arrest her. See Mattos, 661 F.3d
at 445 (noting that use of less-lethal force was unwar-
ranted because there were no “exigent circumstances”
and officers were able to “proceed[] deliberately
and thoughtfully”); cf. Brockington v. Lamont Boykins,
637 F.3d 503, 507 (4th Cir. 2011) (although initial
use of deadly force was reasonable, there was no
indication that additional force was necessary after
24 No. 10-1654

the plaintiff had been shot, was on the ground, and
wounded).
This was simply not the kind of “tense, uncertain,
and rapidly evolving” situation that required “split-
second” judgment calls. Graham, 490 U.S. at 397. As
discussed above, the officers had already been put on
notice that Phillips’s car was not the same color, make,
or model as the one reported stolen. When the car was
located, according to the officers’ testimony and the
evidence in the record, Phillips appeared to be very
drunk. Phillips never actively resisted or even re-
sponded to the officers’ initial use of force. Under the
circumstances, it was objectively unreasonable to shoot
Phillips four times with the SL6 when she posed no
immediate threat and offered no active resistance.
There is a commonsense need to mitigate force
when apprehending a non-resisting suspect, particularly
when the suspect is known to have diminished capacity.
An arrestee may be physically unable to comply with
police commands. See Smith, 295 F.3d at 770; see also
Cyrus, 624 F.3d at 863 (noting that officer was “aware
of [arrestee’s] mental illness”); McAllister, 615 F.3d at
883 (finding knowledge of arrestee’s diabetic condition
relevant to excessive force analysis); Champion v. Outlook
Nashville, Inc., 380 F.3d 893, 904 (6th Cir. 2004), (“The
diminished capacity of an unarmed detainee must be
taken into account when assessing the amount of force
exerted.”).
Here, we must respectfully disagree with our dissenting
colleague who suggests that the force used was appro-
No. 10-1654 25

priate because Phillips failed to comply when officers
ordered her to exit the car. Like the dissent, we accept
the officers’ testimony that their ultimate “goal” in using
the SL6 was “to gain compliance and control,” rather than
to hurt or punish Phillips gratuitously. But this goes
principally to the question of intent. “The officers’ intent
in using force is irrelevant in a Fourth Amendment
case. Only its reasonableness matters—which means
whether it was excessive in the circumstances, because if
it was, it was unreasonable . . . .” Richman v. Sheahan,
512 F.3d 876, 882 (7th Cir. 2008) (citations omitted); see
also Graham, 490 U.S. at 397 (“An officer’s evil inten-
tions will not make a Fourth Amendment violation out
of an objectively reasonable use of force; nor will an offi-
cer’s good intentions make an objectively unreasonable
use of force constitutional.”).
The dissent notes that officers stopped firing after
Phillips obeyed and slid out of the car. But the fact that
Phillips eventually complied after she was shot has no
bearing on whether the force exercised on her was rea-
sonable. We concur with our dissenting colleague’s
statement that “the reasonableness of force [cannot
be] measured by whether it is successful at gaining com-
pliance.” Dissent Op. at 46. But we believe the
dissent’s analysis of the officers’ use of force effectively
sanctions this invalid approach. That the officers had
a reasonable goal and used (arguably) non-deadly force
to accomplish it does not make their actions reasonable.
It is true that the officers said they were trained to use
the SL6 in an “overload” fashion meant to overpower
a subject by repeatedly striking the same area of the
26 No. 10-1654

body. But as the dissent observes, the SL6 was re-
served for “resistive, assaultive, or otherwise dangerous
behavior.” Phillips never exhibited any of the active
resistance or assaultive behavior that would have war-
ranted use of the overload tactic. E v e n w h e n o f f i c e r s ’
goals are eminently reasonable, there are definite limits
to the force officers may use to prod arrestees into
obeying commands. A rule that pins reasonableness
on whether officers used the force necessary to secure
compliance would be a rule that requires officers to
beat non-resisting arrestees into submission.
Moreover, we believe the dissent misapprehends the
circumstances that warranted escalation of force in our
prior cases. We have held that increased force may be
reasonable when used in response to an arrestee’s
active struggling and in proportion to the threat pre-
sented. Thus, in Padula, we found that “[i]t was . . . reason-
able to use mace to attempt to control [the plaintiff] under
the circumstances, which involved a physical struggle
both before and after placing him in handcuffs.” 656 F.3d
at 603. The force used was carefully calibrated to the
arrestee’s active resistance: “as a means of imposing force,
pepper spray is generally of limited intrusiveness.” Id.
Similarly, “[t]he Officers’ use of batons was also reason-
able. . . . [The] baton strikes were ‘stern,’ but not ‘severe,’
which was appropriate in response to [the plaintiff] kicking
and flailing his arms.” Id. Our decision in Clarett v.
Roberts followed the same rationale. 657 F.3d 664 (7th
Cir. 2011). There, an officer testified that he used three
taser deployments because the arrestee was “kicking and
flailing at him and continued this assaultive behavior
No. 10-1654 27

when he tried to arrest her.” Id. at 675; see also Monday v.
Oullette, 118 F.3d 1099, 1105 (6th Cir. 1997) (“Here, [the
officer] used only a single burst of pepper spray to get
plaintiff on the stretcher, unlike the allegation in [a sepa-
rate case] that the plaintiff was unnecessarily sprayed a
second time after he was subdued.” (emphasis added)).
Permitting substantial escalation of force in response
to passive non-compliance would be incompatible with
our excessive force doctrine and would likely bring
more injured citizens before our courts. Under the
totality of the circumstances, we conclude that the force
used surpassed the level permissible under the Fourth
Amendment to effectuate Phillips’s arrest.

B. Qualified Immunity
Qualified immunity protects an officer from liability if
a reasonable officer could have believed that the action
taken was lawful, in light of clearly established law
and the information the officer possessed at the time.
Omdahl, 170 F.3d at 733. “In determining whether a right
is “clearly established,” we look first to controlling pre-
cedent on the issue from the Supreme Court and from
this circuit. Estate of Escobedo, 600 F.3d at 781. If such
precedent is lacking, we look to all relevant case law
to determine “whether there was such a clear trend in
the case law that we can say with fair assurance that
the recognition of the right by a controlling precedent
was merely a question of time.” Id. (internal quotation
marks and citation omitted). Even dicta, although we
do not rely on it here, in certain cases, can clearly
28 No. 10-1654

establish a right. See id. at 786 (citing Anderson v. Creighton,
483 U.S. 635, 640 (1987)).
In undertaking this analysis, we take care to “look at
the right violated in a particularized sense, rather than
at a high level of generality.” Roe v. Elyea, 631 F.3d 843,
858 (7th Cir. 2011) (internal quotation marks and citation
omitted). But a case directly on point is not required for
a right to be clearly established and “officials can still be
on notice that their conduct violates established law
even in novel factual circumstances.” Hope v. Pelzer, 536
U.S. 730, 741 (2002). Therefore, we ask whether it was
clearly established on November 11, 2005 that multiple
trauma-inducing shots would constitute excessive force
when used to secure a non-resisting, intoxicated
arrestee. We conclude that the right to be free from this
amount of force was clearly established on the date
of Phillips’s arrest.
The officers contend that they are entitled to qualified
immunity because, on the date of the arrest, no case
from the Supreme Court or from this circuit had held
use of the SL6 unconstitutional. They argue that if the
law had clearly established that use of an SL6 was unlaw-
ful, police departments would no longer retain the
weapon in their arsenal.
The defendants misconstrue the qualified immunity
analysis. “[T]here is no need that the very action in ques-
tion [have] previously been held unlawful.” Safford
Unified Sch. Dist. v. Redding, 557 U.S. ___, 129 S. Ct.
2633, 2643 (2009) (internal quotation marks and citation
omitted). Every time the police employ a new weapon,
No. 10-1654 29

officers do not get a free pass to use it in any manner until
a case from the Supreme Court or from this circuit in-
volving that particular weapon is decided. See Sallenger
v. Oakes, 473 F.3d 731, 741-42 (7th Cir. 2007) (no
qualified immunity for officers’ use of hobble given
totality of circumstances, even where other circuits had
held that “use of a hobble was not clearly established
as constitutionally suspect”). Even where there are
“notable factual distinctions,” prior cases may give an
officer reasonable warning that his conduct is unlawful.
Estate of Escobedo, 600 F.3d at 781; see also Griffith v.
Coburn, 473 F.3d 650, 659 (6th Cir. 2007) (“[T]he [c]ourt
can consider more than merely the factual context of
a prior case: ‘the general reasoning that a court employs’
also may suffice for purposes of putting the defendant
on notice that his conduct is clearly unconstitutional.”
(citation omitted)).
The officers also argue that qualified immunity is
warranted because Smith affirmatively authorized use
of force to remove an unresponsive driver from a car.
295 F.3d at 771. But the reliance on Smith is misplaced.
As we explained in McAllister, Smith does not stand for
the proposition that an officer may use any amount of
force on an unresponsive driver. 615 F.3d at 885-86 (dis-
tinguishing Smith and denying qualified immunity to
police officers because “the degree of force the officers
intended to apply in Smith was significantly less than
the force allegedly used by [the officer in this case]”). To
the contrary, Smith permitted only “minimal” force
to remove a non-responding intoxicated driver from
his car. 295 F.3d at 771.
30 No. 10-1654

As stated above, “[f]orce is reasonable only when exer-
cised in proportion to the threat posed.” Cyrus, 624 F.3d at
863 (citing Oliver v. Fiorino, 586 F.3d 898, 907 (11th Cir.
2009) (discussing clearly established law as of 2004)).
“Force also becomes increasingly severe the more often
it is used; striking a resisting suspect once is not the
same as striking him ten times.” Cyrus, 624 F.3d at 863.
By the time of the arrest, circuit precedent had given the
officers notice that the force used on Phillips was exces-
sive. Smith indicated that only minimal force was war-
ranted to remove a driver perceived to be intoxicated and
passively resisting. 295 F.3d at 771. Omdahl referenced the
substantial quantum of force inflicted by a bean-bag
shotgun, treating it as either “deadly force” or “a higher
level of force along a ladder of escalating force.” 170 F.3d
at 733; see also Deorle, 272 F.3d at 1279-80. Prior to Phillips’s
arrest, the Eleventh Circuit held in Mercado that officers
had used excessive force in deploying an SL6 weapon
against an arrestee wielding a knife and threatening to
commit suicide. 407 F.3d at 1154-55. One of the two
SL6 rounds fired hit the arrestee in the head injuring
him. Id. The Eleventh Circuit rejected qualified immunity
for the officers even though there was no prior case
law that was “materially similar.” Id. at 1159. Though
the circumstances surrounding the use of force differ
from the current case, Mercado recognized that the SL6
could be deployed in a clearly unlawful manner even
though it was categorized as “less lethal.” Id. at 1157.1 0

10
The officers rely on Mercado to argue that they are entitled
to qualified immunity because there was no “materially
(continued...)
No. 10-1654 31

Even assuming a lack of clarity about the propriety of
shooting Phillips with the SL6 once, the officers should
have known that it was unlawful to escalate force by
shooting Phillips three more times when she was unre-
sponsive, presented no immediate threat, and made no
attempt to flee or even avoid police fire. That is, it was
clearly established in November 2005 that officers
could not use such a significant level of force on a non-
resisting or passively resisting individual. Rambo v.
Daley, 68 F.3d 203, 207 (7th Cir. 1995) (denying
qualified immunity where police forced a handcuffed,
drunk driving suspect who was verbally resisting arrest
into a police car by breaking the suspect’s ribs); St. John
v. Hickey, 411 F.3d 762, 772-75 (6th Cir. 2005) (denying
qualified immunity to officers who injured a disabled
plaintiff while placing him in police cruiser because,
although the plaintiff was “cursing,” “yelling,” and
“passively” resisting, he was not violent or attempting
to flee); Hill v. Miller, 878 F. Supp. 114, 116 (N.D. Ill. 1995)
(“[I]t is well established that the use of any significant
force . . . not reasonably necessary to effect an arrest—as

10
(...continued)
similar” case that “truly compels the conclusion that [the
plaintiff] had a right established under federal law.” Mercado,
407 F.3d at 1159. The argument is unavailing because
Mercado itself found officers liable in spite of the absence of
case law directly on point. And the Supreme Court had
already rejected any “materially similar” requirement as an
overly “rigid gloss” on qualified immunity. Hope, 536 U.S.
at 739.
32 No. 10-1654

where the suspect neither resists nor flees or where
the force is used after a suspect’s resistance has been
overcome or his flight thwarted—would be constitu-
tionally unreasonable.” (internal quotation marks and
citation omitted)). We therefore conclude that the
officers are not entitled to qualified immunity, and that
Phillips is entitled to judgment as a matter of law on
her excessive force claim.1 1

III. CONCLUSION
We R EVERSE the judgment and R EMAND the case to
the district court to enter judgment as a matter of law
for Phillips and for a calculation of Phillips’s damages.

11
Because we conclude that Phillips was entitled to judgment
as a matter of law, we do not consider whether she is entitled
to a new trial because the district court admitted her blood
alcohol content into evidence even though the officers were
unaware of it when they shot her with the SL6.
No. 10-1654 33

T INDER, Circuit Judge, dissenting. I have no major
quarrel with the majority’s description of the facts and
the applicable legal standards. I respectfully dissent,
though, because I cannot agree that based on those facts,
a reasonable jury had to find in favor of Phillips.
Excessive force claims generally require a fact-based, case-
by-case inquiry, and as such, we have often held that
the question of whether force is excessive must be
decided by a jury. See, e.g., Cyrus v. Town of Mukwonago,
624 F.3d 856, 862 (7th Cir. 2010); McAllister v. Price, 615
F.3d 877, 884 (7th Cir. 2010); Abdullahi v. City of Madison,
423 F.3d 763, 773 (7th Cir. 2005). “[W]e have recognized
that summary judgment is often inappropriate in
excessive-force cases because the evidence surrounding
the officer’s use of force is often susceptible of different
interpretations.” Cyrus, 624 F.3d at 862. I am aware of no
case before this one, however, where we have reversed
a jury verdict in favor of a defendant officer by con-
cluding that the officer’s use of force under the totality
of circumstances was excessive as a matter of law. The
facts in this case should not lead us to such an extraordi-
nary result.
Although most of the relevant facts in this case are
undisputed, it is within the jury’s province to determine
what reasonable inferences to draw from those facts.
See Abdullahi, 423 F.3d at 770 (stating that it is for
the jury, not us, to weigh all the evidence and
choose between competing inferences). I agree with the
majority that the “[o]bjective reasonableness of force is
a legal determination rather than a pure question of fact
for the jury to decide,” Maj. Op., p. 9, but the facts of this
34 No. 10-1654

case and the reasonable inferences arising from them
(as discussed below) properly permitted the jurors to
assess the reasonableness of the defendants’ actions. 1 It
is my position in dissent that, when viewed in the
light most favorable to the defendants, reasonable in-
ferences drawn from the record support the jury’s deter-
mination. Admittedly, this is a difficult and close case.
Nevertheless, given the situation faced by the officers,
I believe that whether four shots was too many under
the circumstances was a question properly presented to
the jurors.
“The dispositive question is whether, in light of the
facts and circumstances that confronted the officer[s] (and
not 20/20 hindsight), the officer[s] behaved in an objec-
tively reasonable manner.” Padula v. Leimbach, 656 F.3d
595, 602 (7th Cir. 2011) (quoting McAllister, 615 F.3d at
881). As the majority observes, relevant factors to
consider include the severity of the crime, the immediate
threat the suspect poses to the safety of the officers or
others, and whether the suspect is actively resisting

1
When the defendants moved for summary judgment on
Phillips’s excessive force claim, Phillips didn’t file a cross-
motion for summary judgment, but instead, responded that
there were genuine issues of fact for the jury. (Doc. 51, p. 33)
(“[T]here are two distinct versions of the facts here, including
several material issues for the jury which will bear directly
on the ‘reasonableness inquiry.’ ”). In fact, Phillips waited
until two separate juries failed to find in her favor before
claiming that she should win as a matter of law. (The first
jury to try the case was unable to reach a verdict.)
No. 10-1654 35

arrest or attempting to evade arrest by flight. See Graham
v. Connor, 490 U.S. 386, 396-97 (1989). “The calculus of
reasonableness must embody allowance for the fact
that police officers are often forced to make split-
second judgments—in circumstances that are tense,
uncertain, and rapidly evolving—about the amount of
force that is necessary in a particular situation.” Id.
The jury was presented with sufficient facts to support
a finding that the officers behaved in an objectively rea-
sonable manner. The crimes under investigation were
not trivial. Lieutenant Russell Jack and Officer James
Hoffman reasonably believed that the woman in control of
the vehicle (who they discovered after the arrest was
Tamara Phillips) might act dangerously and unpredictably
based on the dispatch reports and their observations of
her bizarre behavior inside the vehicle. Indeed, Phillips’s
erratic driving (one caller described the vehicle as “all over
the road”) endangered other drivers and ended with
the vehicle stopped on a sidewalk and facing the street
in a residential area. When officers repeatedly ordered
Phillips to show her hands and exit the vehicle, instead
of complying, she lit a cigarette, placed a water bottle
outside the driver’s door, and at one point placed both
feet out of the driver-side window, leaning back toward
the center console. The events of that evening were full
of uncertainty. The lighting of the cigarette is just one
example of the ambiguity confronting the officers. Was
this the action of a highly intoxicated individual or “one
last smoke” by a person intending to undertake a
violent confrontation with the police? We know now
that it was, fortunately, the former and not the latter, but
36 No. 10-1654

how could the police on the scene know that at the time
of the incident?
There was also confusion over whether the vehicle
was stolen. Even though the officers had information
suggesting the vehicle may not have been stolen, the
facts were sufficient for the jury to find that the officers
acted reasonably in approaching the situation as a “high
risk traffic stop” involving a potentially stolen vehicle.
I agree with the majority that there was “sufficient in-
formation to call into question whether Phillips’s
vehicle was stolen,” Maj. Op., p. 18, but the officers on
the scene did not have the luxury of investigating why
the license plate number of a car reported stolen was
transferred to a different vehicle. Lieutenant Jack testified
that the Department of Transportation had a general
policy prohibiting reassignment of plates from stolen
cars to other vehicles. Under these circumstances, the
jurors could find it reasonable for the officers, out of
caution, to proceed as though the vehicle was stolen.
The officers had reason to believe that Phillips posed
a threat to the safety of the officers and others. The car
was in a residential area where people could be
traveling and was pointed toward the street in the di-
rection of the officers. The officers testified that they
believed the car was still running because its headlights
were on. Based on these facts, a reasonable jury could
find that the officers faced a threat that Phillips would
attempt to drive the car toward them, especially con-
sidering her subsequently confirmed intoxicated state
and bizarre behavior.
No. 10-1654 37

The majority concludes that there was no immediate
threat because “[t]he officers had [Phillips’s] vehicle
surrounded with seven squad cars, and behind the vehicle
there was a steep drop-off.” Maj. Op., p. 22. I have a
slight disagreement with this understanding of the
scene; I don’t think the most favorable construction
of the record shows that all seven squad cars were sur-
rounding Phillips’s vehicle; some were blocking traffic on
adjacent streets. (Tr. p. 88). But that is not a major
point, and I agree it was not likely that Phillips could
have escaped because it would have been extremely
difficult for her to plow through the phalanx of
policemen and police vehicles, to say nothing about
her chances of eluding them in a chase. But that doesn’t
mean she wasn’t in a position to harm the officers by
driving her car forward. Although Phillips’s feet were
outside the car, within seconds she could have hit the
gas. Again, the officers could have reasonably believed
that Phillips was substantially under the influence of
alcohol or drugs, and as a result, mentally unstable
and unpredictable. The officers also did not know
whether Phillips was armed, making her strange and
unpredictable behavior even more alarming. These cir-
cumstances, combined with the confusion over the
stolen vehicle report with respect to the license plates
on the vehicle, required the officers to proceed with
extreme caution. As such, they could reasonably be-
lieve that Phillips posed a threat to their safety and
to anyone else who might be in the vicinity.
Because this was a high-risk traffic stop, police proce-
dure was to order the “suspect to shut the car off, put
38 No. 10-1654

the keys outside the car, and then step out of the car,
and then walk back to [a] safe location” for the officers
to take the suspect into custody. (Tr. p. 193). Despite
the officers’ clear, loud, and repeated orders to step
out of the vehicle, Phillips failed to comply. Her unre-
sponsiveness to Lieutenant Jack’s commands to step out
of the car “did not neutralize the safety threat, but
rather exacerbated it by adding an element of unpre-
dictability.” See Smith v. Ball State Univ., 295 F.3d 763,
769 (7th Cir. 2002) (“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, . . . his
unresponsiveness did not neutralize the safety threat,
but rather exacerbated it by adding an element of unpre-
dictability.”). Phillips continued moving around in the
vehicle and had even reached toward the glove box,
which Officer Hoffman testified would be consistent
with “someone . . . obtaining a weapon.” (Tr. p. 196).
Although Lieutenant Jack radioed dispatch and said,
“We have the person secured here, not in handcuffs,
but stabilized in the car,” he testified that meant the
suspect was in the car, the car wasn’t moving, and the
driver was not currently fleeing. (Tr. p. 286). Lieutenant
Jack never indicated that the driver no longer posed
a threat to their safety.
I agree that Phillips wasn’t actively resisting arrest in
the sense of physical resistance; she wasn’t aggressive
or confrontational at any point. She nevertheless failed
to obey the officers’ repeated, simple commands to step
out of the vehicle. Based on the evidence presented to
No. 10-1654 39

the jurors, they could have reasonably found that
Phillips’s noncompliance was purposeful, conscious
resistance to submission of their authority. The officers had
reason to believe Phillips was conscious (based on her
lighting of the cigarette and other movements) and
there was nothing indicating that she was suffering from
a medically induced condition aside from intoxication.
Compare Padula, 656 F.3d at 602 (force used against
driver suffering from a hypoglycemic episode was not
excessive where there was no facts alerting the officers
of his medical state), with McAllister, 615 F.3d at 884
(“[T]he 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 . . . .”). The
officers wanted Phillips to step out of the car because
they were uncertain what Phillips might do if they ap-
proached, whether she had any weapons within reach,
or whether there was anyone else in the vehicle. The
goal in a high-risk stop is to distance the suspect from
the vehicle as much as possible so that officers can
control the environment in which the person is taken
into custody. (Tr. p. 215). Under these facts, and looking
at the situation as it was unfolding at the time, a jury
could have determined that it was reasonable for the
officers to use the SL6 baton launcher to gain com-
pliance with their orders.
Of course, this case certainly gets more difficult
when determining the reasonableness of multiple shots.
The officers couldn’t simply keep shooting the baton
40 No. 10-1654

launcher until they gained compliance; at some point
the amount of force becomes excessive. As the majority
properly suggests, repeated applications of force are
“reasonable only when exercised in proportion to the
threat posed,” and “’striking a resisting suspect once is
not the same as striking him ten times.’” Maj. Op., p. 30
(quoting Cyrus, 624 F.3d at 863). “It’s the totality
of the circumstances, not the first forcible act, that deter-
mines objective reasonableness.” Cyrus, 624 F.3d at
863. Under the totality of circumstances, however,
whether four shots was too many was a question
properly presented to the jury. The standard for judg-
ment as matter of law is stringent. See Schandelmeier-
Bartels v. Chi. Park Dist., 634 F.3d 372, 376 (7th Cir.
2011). We review “the record as a whole to determine
whether the evidence presented, combined with all rea-
sonable inferences permissibly drawn therefrom, is suf-
ficient to support the verdict when viewed in the
light most favorable to the party against whom the motion
is directed.” Clarett v. Roberts, 657 F.3d 664, 674 (7th Cir.
2011) (quotations omitted). We must construe the facts
strictly in favor of the party who prevailed at trial,
Schandelmeier-Bartels, 634 F.3d at 376, and “will overturn
the jury’s verdict only if no reasonable juror could have
found in the defendants’ favor,” Clarett, 657 F.3d at 674.
After hearing testimony from Phillips, Officer Hoffman,
and Lieutenant Jack and weighing the evidence, a
properly instructed jury found that Phillips failed to
prove that the defendants’ use of force was excessive
from the perspective of a reasonable officer facing the
same circumstances that the defendants faced on the
No. 10-1654 41

night of November 11. The jury was instructed to
consider “the need for the use of force; the relationship
between the need for the use of force and the amount
of force used; the extent of the plaintiff’s injury; any
efforts made by the defendant to temper or limit the
amount of force; the severity of the crime at issue;
the threat reasonably perceived by the officers; whether
the plaintiff was actively resisting arrest or was
attempting to evade arrest by fleeing.” (Doc. 145, pp. 10-
11). Respectfully, I disagree with my majority colleagues
and believe that if all the evidence and all reasonable
inferences are construed in favor of the defendants, as
we must, a reasonable jury could find that the offi-
cers’ repeated use of force was not excessive.
This is not a case like Cyrus where the officers’ use of
repeated force resulted in the death of an individual
who was passively resisting arrest and posed no con-
tinuing threat to the officers’ safety. See Cyrus, 624 F.3d
at 858 (question of fact existed where unarmed arrestee
died after repeatedly being tasered while laying face
down on the pavement); see also Griffith v. Coburn, 473
F.3d 650, 643, 658 (6th Cir. 2007) (question of fact
existed where officers’ use of neck restraint resulted in
death of unarmed arrestee who was only passively re-
sisting by trying to put his arm behind his back and
refusing to help or cooperate in any way with officers’
commands).
In this case, the officers used intermediate force
that resulted in no severe permanent injuries; Phillips
was left with scarring from the incident but she doesn’t
42 No. 10-1654

walk with a limp or have any existing pain. (Tr. p. 66). The
SL6 is a less-lethal force to be targeted at an area below
the groin and is designed to impede suspects, not to
cause great bodily harm. (Tr. pp. 97, 300). Officer Hoffman
testified that he was trained to use the weapon for “resis-
tive, assaultive, or otherwise dangerous behavior,” (Tr.
p. 128), and they decided to use this weapon particularly
so they could maintain a safe distance from the vehicle
(Tr. pp. 221-23, 227, 300). The SL6 has the equivalent of
a .44 magnum pistol black powder primer (Tr. p. 126),
but travels at a lower velocity than a bullet fired from
a magnum cartridge, and thus, has the level of force
of a hand baton (Tr. p. 100) or professionally thrown
baseball, see also Mercado v. City of Orlando, 407 F.3d
1152 (11th Cir. 2005) (“The Sage Launcher is a ‘less le-
thal’ munition that fires a polyurethane baton that is
1.5 inches wide, travels approximately 240 feet per
second, and delivers a force of 154 foot/pounds of en-
ergy-approximately the energy of a professionally-thrown
baseball.”). I am not suggesting that the use of force in
this case was insignificant, but it certainly resulted in
lesser force than that used in Cyrus and Griffith.
I do not disagree with the majority that the use of an
SL6 could be treated “as a species of deadly force,” Maj.
Op., p. 12 (citing Bell v. Irwin, 321 F.3d 637, 639 (7th Cir.
2003), but that depends on how the weapon is used, see
Mercado, 407 F.3d at 1157 (aiming at a person’s head
constitutes deadly force), and in this case was a question
of fact properly reserved for the jury. See Omdahl v.
Lindholm, 170 F.3d 730, 733 (7th Cir. 1999) (finding that
whether bean-bag rounds constitute deadly force was a
No. 10-1654 43

factual question for the jury). The officers were trained to
use the SL6 in a less-lethal manner so as not to cause
serious bodily harm and that’s how it was used to
gain Phillips’s compliance. See, e.g., Bell, 321 F.3d at 639
(“Bean-bag rounds are designed to stun and inflict blunt
trauma, knocking a person down but not penetrating the
skin or damaging internal organs more severely than a
kick or punch would.”). Phillips undisputedly suffered
a painful injury and one shot did penetrate her skin
requiring stitches, but after three weeks she was able
to walk without a cane and had no permanent physical
effects (aside from scarring). I disagree though with the
majority’s implication that the SL6 necessarily employs
a substantially greater degree of force than other
weapons categorized as “less lethal,” such as tasers.
Certainly depending on the manner used, a taser or other
restraint techniques could cause more injury than Phillips
suffered. See, e.g., Cyrus, 624 F.3d at 858 (use of taser); see
also Abdullahi, 423 F.3d at 768-68 (use of kneeling restraint).
I am not suggesting that force is appropriately used in
all situations in which suspects do not comply with
police orders or that a passive resister can be ruthlessly
beaten into submission. But we have previously found
some use of force reasonable against suspects who are
resisting arrest by failing to comply with police orders.
See, e.g., Padula, 656 F.3d at 603-04 (given the officers’
reasonable belief that driver was intoxicated, they were
entitled to forcibly remove suspect from car when he
failed to comply with commands to get out); see also
Monday v. Oullette, 118 F.3d 1099, 1104-05 (6th Cir.
1997) (use of pepper spray reasonable where officer
44 No. 10-1654

warned that he would discharge it if individual did
not cooperate); Forrester v. City of San Diego, 25 F.3d
804, 807-09 (9th Cir. 1994) (finding no Fourth Amend-
ment violation when officers used injury-causing pain
compliance techniques on passively resisting demon-
strators). Officers may consider a suspect’s refusal to
comply with instructions during a traffic stop in
assessing whether physical force is needed to effectuate
the suspect’s compliance. See Mecham v. Frazier, 500 F.3d
1200, 1205 (10th Cir. 2007) (officer’s use of pepper spray
during traffic stop to force motorist from her vehicle
was objectively reasonable under the circumstances where
she disobeyed officer’s orders to exit the car); see also
Mattos v. Agarano, 661 F.3d 433, 450 (9th Cir. 2011) (en banc)
(officers can consider passive refusal to comply with
officer’s requests in using force). The amount of force
reasonable is dependent on the totality of circumstances.
Before using force, the officers in this case tried repeat-
edly for ten minutes to gain Phillips’s compliance. Then,
at a distance of 40 or 50 feet, Officer Hoffman
fired a warning shot, leaving a baseball-sized dent in
the driver-side door. The officers continued issuing
commands and after five minutes with no response,
Officer Hoffman fired the SL6 at Phillips’s leg. She
yelled out in pain and reached down for her legs, but
still didn’t comply with the officers’ commands. After
waiting fifteen seconds, Officer Hoffman fired three
more times, again hitting Phillips in the legs. After
each shot, Officer Hoffman waited a few seconds for
Phillips to comply; she had no further reaction until the
fourth shot. After the fourth shot, Phillips finally complied.
No. 10-1654 45

While there may not have been an “immediate” or
“urgent” need to get Phillips away from the vehicle,
the practicalities of the situation required prompt action.
This was a Friday night at 7:00 p.m. and the Waukesha
police had deployed seven squad cars to the scene.
Officers shouldn’t be required to take an endless “wait
and see” approach under these circumstances, par-
ticularly where officers are presented with a potentially
dangerous situation and may be called away to respond
to other emergencies. “It is easy in retrospect to say
that officers should have waited, or should have used
some other maneuver—these propositions cannot
be falsified—but Graham makes it clear that the
fourth amendment does not require second-guessing if
a reasonable officer making decisions under uncertainty
and the press of time would have perceived a need to
act.” Bell, 321 F.3d at 640.
The officers used non-lethal force to obtain Phillips’s
compliance with their commands after assessing the
situation and determining that it was the best option.
Similarly in Clarett, 657 F.3d at 674-75, we upheld a jury
verdict in favor of an officer who used a Taser on the
plaintiff three times after she blocked the doorway to
her son’s bedroom where other officers had already
entered. The officer heard a commotion in the bedroom
and believed that the officers needed help. Id. at 675. He
told the plaintiff to move from the doorway and
she refused, so he used the Taser to temporarily immobi-
lize and remove her from the doorway. Id. The officer
“said he considered using other alternatives, such as
physically moving [the plaintiff] out of the way, but
46 No. 10-1654

because the apartment was small and crowded, a
physical confrontation might escalate quickly, risking
serious injury. Under the circumstances, [the officer]
concluded that using the Taser was his best option.” Id.
The second and third Taser deployments were in
response to plaintiffs’ assaultive behavior. Id.
After Phillips complied with their commands, no
further force was necessary and no further force was
used. I also do not suggest that the reasonableness of
force is measured by whether it is successful at gaining
compliance. As noted above, the officers couldn’t
simply keep shooting the baton launcher until they
gained compliance; at some point the amount of force
becomes excessive. But the officers were trained to use
the SL6 in an overload fashion, meaning to repeatedly
strike the same area. (Tr. p. 100). That’s how Officer
Hoffman and Lieutenant Jack used the weapon
against Phillips so they could safely take her into cus-
tody. It was not unreasonable for the officers to use the
SL6 in this fashion, and “[i]n light of our hesitation
to second-guess the snap judgments made by law en-
forcement personnel,” see Padula, 656 F.3d at 604,
I would affirm the district court’s denial of the
plaintiff’s motion for judgment as a matter of law,
thereby allowing the jury’s verdict to stand.
I concede that the majority opinion ably demonstrates
that this arrest could have been better handled. And it is
extremely unfortunate that Phillips was injured during
these events. But, as noted, these facts present a close
case and because of that, even if there were some basis
No. 10-1654 47

to undo the jury’s verdict, for a second reason, I think
the judgment of the district court should be affirmed:
the officers should be entitled to qualified immunity.
“Since the purpose of qualified immunity is to pro-
tect public officials from guessing about constitutional
developments at their peril, the plaintiffs have the
burden of showing that the constitutional right was
clearly established.” Gonzalez v. City of Elgin, 578 F.3d
526, 540 (7th Cir. 2009). To be clearly established, the
“contours of the right must be sufficiently clear that a
reasonable official would understand 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.” McAllister,
615 F.3d at 884-85 (quotations omitted).
The SL6 was a relatively new weapon for use in
the field by the Waukesha police department; Officer
Hoffman had never used it in the field prior to this
incident and was not aware that it could penetrate the
flesh. (Tr. pp. 128-29). The only case identified by
the parties involving the use of an SL6 was Mercado, 407
F.3d 1152, decided several months before Phillips’s arrest.
The officer in that case fired the SL6 at the plaintiff’s
head from six feet away, but claimed he was aiming for
the plaintiff’s shoulder Id. at 1155. Because the circum-
stances didn’t warrant use of lethal force, the court
held that there was a question of fact for trial whether
the officer using the SL6 aimed for the plaintiff’s head.
Id. at 1157-58, 1160. In this case, the officers used the SL6
48 No. 10-1654

as a non-lethal weapon to gain the suspect’s compliance
from a safe distance. The weapon was carefully aimed
to strike only Phillips’s legs. There was no clearly estab-
lished law alerting the officers that their actions in
this instance were unlawful. Nor does the record show
that the defendants were aware of similar injuries
resulting from uses of the SL6 as it was designed to
be utilized.
The majority is correct that by using a new type
of weapon officers “do not get a free pass to use it in
any manner until a case from the Supreme Court or
from this circuit involving that particular weapon is
decided.” Maj. Op., pp. 28-29. Certainly, qualified immu-
nity doesn’t give officers a green light to use new weapons
in any unreasonable manner, but it does absolve them
of personal liability where they acted cautiously (maybe
too cautiously) in a close case requiring judgment
calls. See Mattos, 661 F.3d at 450 (applying qualified
immunity where there was no Supreme Court decision
or decision of the court of appeals addressing the use
of a taser in dart mode). “[T]he point of qualified
immunity and its ‘clearly established’ requirement is
that government officials are not, as a rule, liable for
damages in close cases.” Kikumura v. Turner, 28 F.3d
592, 597 (7th Cir. 1994). “[Q]ualified immunity provides
‘ample room for mistaken judgments’ and protects gov-
ernment officers except for the ‘plainly incompetent
and those who knowingly violate the law.’ ” Saffell v.
Crews, 183 F.3d 655, 658 (7th Cir. 1999) (quoting Hunter
v. Bryant, 502 U.S. 224, 229 (1991)).
No. 10-1654 49

The officers in our case were dealing with a suspected
stolen vehicle situation (it was at least reasonable for
them to proceed under that assumption) and a driver
who had endangered the lives of others before driving
off the road in a residential area at night. The vehicle,
which the officers had reason to believe was running,
was facing them and the driver was, to say the least,
unpredictable. Because of the high-risk nature of the
stop, the officers determined that it was not safe and
against normal procedure to approach the vehicle to
physically remove the suspect, particularly given
the number of uncertainties with the situation. So
they instead decided to use non-lethal force to gain com-
pliance. Significant resources were being utilized to
control the situation and it was reasonable for the
officers to decide that waiting it out was not a viable
option.
Police officers must have the ability to make on-the-
scene judgment calls that protect their safety and the
safety of the public. That’s what the officers attempted
to do in this situation and there was no existing legal
precedent warning them that their actions were unlaw-
ful. This is different from the cases cited by the
majority where police used excessive force after
the suspect was in their control. Maj. Op. p. 31 (citing
Rambo v. Daley, 68 F.3d 203, 207 (7th Cir. 1995) (suspect
was handcuffed) and St. John v. Hickey, 411 F.3d 762, 766
(6th Cir. 2005) (forcing plaintiff who couldn’t bend his
legs because of muscular dystrophy into back of police
car)). Recently, in Brooks v. City of Aurora, 653 F.3d 478,
487 (7th Cir. 2011), we held that officers were entitled
50 No. 10-1654

to qualified immunity when they used pepper spray
against the plaintiff a second time after he stopped re-
sisting arrest. In that case, we noted that the pepper
spray was not applied until Brooks had ceased back
peddling from the officers and was passively facing
them. Id. We held that it would not have been obvious
to a reasonable police officer that the application of
pepper spray was unlawful. Id. The suspect had ceased
active, physical resistance but had not submitted to
authority, had not been taken into custody, and could
arguably pose a threat of flight or further resistance.
Id. Although Phillips had not actively resisted arrest
in a physical way, the officers here were similarly pre-
sented with a threatening situation because Phillips
had not submitted to their authority and had not yet
been taken into custody. Accordingly, given the totality
of the circumstances as explained above, I believe the
officers should at least be entitled to qualified immunity.
For the foregoing reasons, I respectfully dissent and
would affirm the judgment in favor of the officers.

4-27-12