In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2331
C HET C YRUS, et al.,
Plaintiffs-Appellants,
v.
T OWN OF M UKWONAGO, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 2:07-cv-01035—Rudolph T. Randa, Judge.
A RGUED O CTOBER 26, 2009—D ECIDED N OVEMBER 10, 2010
Before B AUER and S YKES, Circuit Judges, and SIMON,
District Judge.
S YKES, Circuit Judge. Nickolos Cyrus suffered from
bipolar disorder and schizophrenia and was known to
local police based on past psychotic—but noncrimi-
The Honorable Philip P. Simon, United States District
Judge for the Northern District of Indiana, sitting by designa-
tion.
2 No. 09-2331
nal—episodes. Early one morning, after being reported
missing by his family and while in a delusional state,
he wandered into a partially built new home in
Mukwonago, Wisconsin, wearing nothing but a bath-
robe. The property owner was present and called the
police. Town of Mukwonago Lieutenant Thomas
Czarnecki was the first to respond to the scene, and by
then Cyrus was standing outside the house. The officer
approached and asked him to come to the squad car to
talk. Instead, Cyrus turned and began walking back
toward the house.
Czarnecki fired his Taser at Cyrus to stop him from
reentering the house, and this set in motion a confluence
of events. Cyrus fell to the ground after being hit with
the Taser. He attempted to stand up but immediately
fell over. Czarnecki Tasered Cyrus a second time. Cyrus
went into a barrel roll and ended up lying face down on
the unfinished gravel driveway. A second police officer
arrived, and he and Czarnecki attempted to handcuff
Cyrus, but this was difficult because Cyrus’s hands
were tucked underneath his stomach and he did not
comply with the officers’ commands to produce them
for handcuffing. Czarnecki Tasered Cyrus several more
times—there is a dispute about how many—in an effort
to force compliance with the arrest. Once Cyrus was
handcuffed, the officers turned him onto his back and
found he was not breathing. He was pronounced dead
upon arrival at the hospital.
Cyrus’s parents sued Lieutenant Czarnecki, the Town
of Mukwonago, and other defendants under 42 U.S.C.
No. 09-2331 3
§ 1983 alleging that Cyrus’s death was caused by the
use of excessive force in violation of the Fourth Amend-
ment. The district court granted the defendants’ motion
for summary judgment, holding that the amount of force
used to apprehend Cyrus was reasonable under the
circumstances. Cyrus’s parents appealed.
We reverse. There are material facts in dispute about
the extent to which Cyrus attempted to evade the
officers and the actual amount of force Czarnecki used
to bring about his arrest. The evidence conflicts, most
importantly, on how many times Cyrus was Tasered.
Czarnecki testified that he deployed his Taser five or
six times, and the autopsy report describes marks on
Cyrus’s back consistent with roughly six Taser shocks.
But the Taser’s internal computer registered twelve
trigger pulls, suggesting that more than six shocks may
have been used. On a Fourth Amendment excessive-force
claim, these are key factual disputes not susceptible
of resolution on summary judgment.
I. Background
This case is before us on summary judgment, so
we recount the version of the facts most favorable to
the nonmoving parties—Cyrus’s parents and his estate—
noting disputes where they exist.
A. The Events of July 8 and 9, 2006
Nickolos Cyrus suffered from bipolar disorder with
symptoms of schizophrenia, and he sometimes exhibited
4 No. 09-2331
delusional behaviors that required police intervention.
This was the case on July 8, 2006. Cyrus, who was then
29 years old and lived with his parents in Mukwonago,
left his home on that day, and a Rock County Deputy
Sheriff found him wandering along an interstate high-
way in a delusional state. He was taken to the Rock
County Mental Health Facility for evaluation and then
released to the custody of his mother, Brenda Cyrus.
Cyrus and his mother had a dispute later that evening,
and Cyrus removed all his clothes except a bathrobe
(and possibly boxer shorts) before leaving home a
second time. Brenda Cyrus contacted the Village of
Mukwonago Police Department, told the dispatcher
what happened, and said she wanted her son taken into
custody when the police found him.
At about 7:45 a.m. the next day, emergency dispatchers
received a call from Bradford Williams, a resident of the
Town of Mukwonago, who said that an unknown man was
trespassing on his property—a new home under construc-
tion in the Town—and the man was acting strangely.
Williams reported that the trespasser wore only a bathrobe
and that Williams had a verbal confrontation with him.
Lieutenant Thomas Czarnecki, the Town’s on-duty officer,
was dispatched to the Williams property. The dispatcher
informed Czarnecki that the property owner and the
suspect had a verbal exchange inside the home, and that
the suspect could be found walking back and forth be-
tween the home and a garbage dumpster outside. The
dispatcher also told Czarnecki that the suspect was
likely “that crazy boy.” Czarnecki understood this to be
a reference to Cyrus; he was familiar with Cyrus from
No. 09-2331 5
prior delusional episodes, and also knew he had been
reported missing the night before.
Czarnecki arrived at the scene at approximately
7:50 a.m. and saw Williams standing in his driveway
and Cyrus standing near the house wearing just a bath-
robe. The officer got out of his squad car, assumed an
“open stance” toward Cyrus, identified himself, and
asked Cyrus to come toward the street to talk. Cyrus
told Czarnecki that he lived on the property and that
his brother lived next door. Czarnecki told Cyrus that
he was on the wrong property. Cyrus responded by
saying that Czarnecki was on private property and
needed to leave.
After this brief dialogue, Cyrus turned and made his
way back toward the house; Czarnecki contends that
Cyrus ran, not walked, in the direction of the house.
Czarnecki then unholstered his Taser and fired it at
Cyrus, striking him in the back with both probes and
causing him to fall to the ground.1 Czarnecki knew that
1
Czarnecki carried a TASER X26 ECD, a stun device that sends
an electric pulse through the victim’s body causing disorienta-
tion, weakness, and loss of balance. The device has two modes
of firing. The first mode fires two probes that are connected to
the Taser gun by a high-voltage, insulated wire. When the
probes make contact with the body, an electrical current
passes through the surface of the body. The Taser emits a
current as long as the trigger is pulled or for a maximum
duration of five seconds. The second method of deployment
is the “drive-stun” mode. In this mode the operator presses
the Taser to a subject’s body and then pulls the trigger to emit
(continued...)
6 No. 09-2331
backup was en route to the scene; he ordered
Cyrus—who was lying on his stomach on the unpaved
gravel driveway as a result of being hit with the Taser—
to remain on the ground and put his hands behind
his back. After Czarnecki issued this order, Officer Eric
Nelson of the Village of Mukwonago Police Department
arrived.2 Nelson got out of his squad car, and at this
point Cyrus attempted to stand up but wobbled on his
feet and fell back down to the ground. Though he
knew Cyrus was unarmed, Czarnecki hit him with the
Taser again; after this second shock, Cyrus barrel-rolled
four or five times down the driveway.3
When Cyrus stopped rolling, Czarnecki and Nelson
approached him and commanded that he show his hands
for handcuffing. Cyrus was lying on his stomach on the
1
(...continued)
a current. The deployment lasts as long as the trigger is
pulled or for a maximum duration of five seconds. The device
contains an internal computer chip that records the date and
time of every trigger pull. See generally Cyrus v. Town of
Mukwonago, No. 07-C-1035, 2009 WL 1110413, at *11 (E.D.
Wis. Apr. 24, 2009).
2
The Town of Mukwonago and the Village of Mukwonago
are separate municipalities and have a practice of providing
mutual emergency assistance.
3
There is some conflict in the evidence about the precise
chronology of these events. For instance, it is unclear whether
Nelson arrived before or after Cyrus attempted to stand up, and
whether Nelson arrived before or after the second Tasering.
Moreover, the accounts differ as to whether Cyrus barrel-rolled
before or after Czarnecki Tasered him for the second time.
No. 09-2331 7
driveway with his hands underneath him and did
not immediately comply, so the officers attempted to
forcibly remove his hands from underneath his body.
More specifically, Czarnecki grabbed Cyrus’s left fore-
arm with one hand and kept his other hand on the Taser,
while Nelson placed his left knee on Cyrus’s right
shoulder blade to control Cyrus’s movement. This maneu-
ver did not succeed in dislodging Cyrus’s hands
from underneath him; to force compliance, Czarnecki
deployed the Taser in drive-stun mode to Cyrus’s back
several times over the next minute or so. The evidence
conflicts about exactly how many times Czarnecki used
the Taser on Cyrus while he was face down in the drive-
way. Czarnecki testified at his deposition that he fired
it approximately six times in total—twice during the
initial encounter and four more times while Cyrus was
on the ground. The medical examiner who performed
the autopsy documented marks on Cyrus’s back con-
sistent with six Taser shots. Yet the Taser’s internal read-
out of trigger pulls recorded a total of 12 trigger pulls
during the relevant timeframe.
The officers eventually succeeded in handcuffing Cyrus
and called for an ambulance on a nonemergency basis.
But when they rolled Cyrus onto his back, they realized
that he was not breathing. Czarnecki then radioed the
ambulance and instructed the paramedics to “step it up.”
Cyrus never regained consciousness and was formally
pronounced dead at the hospital later that day.
8 No. 09-2331
B. District-Court Proceedings
Chet and Brenda Cyrus, Nickolos’s parents, commenced
this action on behalf of themselves and Cyrus’s estate
(collectively “the Estate”) against Lieutenant Czarnecki,
Officer Nelson, the Village of Mukwonago, the Town
of Mukwonago, and the police chief of each municipality.
The complaint included multiple federal- and state-law
claims, but the only one remaining on this appeal is a
Fourth Amendment excessive-force claim under § 1983.4
The Estate identified two expert witnesses: Joseph
Waller, who was to testify on the reasonableness of
Czarnecki’s use of force during Cyrus’s arrest, specifically
relating to his use of the Taser; and Dr. Lynda Biedrzycki,
the Waukesha County Medical Examiner, who performed
the autopsy on Cyrus’s body and would testify about
4
In addition to the Fourth Amendment excessive-force claim
against Czarnecki, the complaint also included a failure-to-
intervene claim against Officer Nelson under § 1983; policy-or-
practice claims against the Town and Village of Mukwonago
under Monell v. Department of Social Services, 436 U.S. 658
(1978); supervisory-liability claims against the police chiefs in
both the Town and Village of Mukwonago under § 1983;
claims under Title II of the Americans with Disabilities Act, 42
U.S.C. §§ 12131 et seq., and section 504 of the Rehabilitation
Act of 1973, 29 U.S.C. § 794; and state-law claims for assault
and battery, intentional infliction of emotional distress, and
wrongful death. The district court granted summary judg-
ment for the defendants on all claims, but the Estate has
limited its arguments on appeal to the Fourth Amendment
excessive-force claim.
No. 09-2331 9
the results of her examination and the cause of Cyrus’s
death. Dr. Biedrzycki had certified the cause of death
as “sudden death during struggle and restraint,” and
identified eight factors that she believed contributed to
Cyrus’s death: (1) the exertion and struggle with the
officers; (2) panic and fear; (3) Cyrus’s prone position;
(4) the pressure applied to Cyrus’s torso and possibly
neck; (5) Cyrus’s psychiatric condition; (6) Cyrus’s
restraint in handcuffs and the officers’ additional
attempts to restraint him with leg irons; (7) the pain and
panic caused by the Taser; and (8) the electrical shock
from the Taser. Dr. Biedrzycki testified at her deposi-
tion that while she believed all eight factors contributed
to Cyrus’s death, she could not determine whether any
one factor was more significant than the others.
Following discovery the defendants moved to exclude
the testimony of both experts pursuant to Federal Rule of
Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993). The district judge excluded the
majority of Waller’s testimony and Dr. Biedrzycki’s
testimony about the cause of death. The judge concluded
that because Dr. Biedrzycki could not “unbundle” the
factors contributing to Cyrus’s death—that is, she could
not isolate one factor as the primary cause of death—her
opinion testimony on cause of death was inadmissible.
The Estate does not challenge either of these evidentiary
rulings on appeal.
After excluding this testimony, the district judge
entered summary judgment for the defendants on all
claims. As is relevant to the sole claim on appeal—the
10 No. 09-2331
Fourth Amendment claim for excessive use of force—the
judge held that the material facts were undisputed, and
in light of all the circumstances, Czarnecki’s deploy-
ment of the Taser did not constitute excessive force as
a matter of law. This conclusion was based largely on
Czarnecki’s deposition testimony. The lieutenant testified
that he decided to use his Taser for several reasons: (1) he
knew there had been a verbal confrontation between
Williams and Cyrus; (2) he suspected Cyrus might have
placed a weapon in the dumpster; and (3) he wanted to
take Cyrus into custody while he was still outside the
house for safety reasons. The district judge accepted
this explanation and noted in addition that the force
inflicted by a Taser is classified as “intermediate” in
that it is generally nonlethal. Finally, the judge relied
on the fact that Cyrus had not obeyed the officers’ com-
mands and refused to show his hands for handcuffing.
The court concluded that under these circumstances,
Czarnecki’s use of the Taser was objectively reasonable.
II. Discussion
We review the district court’s decision to grant sum-
mary judgment de novo. Suarez v. Town of Ogden Dunes,
581 F.3d 591, 595 (7th Cir. 2009). Summary judgment is
appropriate when the record evidence shows that “there
is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.”
F ED. R. C IV. P. 56(c)(2); see also Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986).
No. 09-2331 11
Excessive-force claims in the context of an arrest are
reviewed under the Fourth Amendment’s objective-
reasonableness standard. Graham v. Connor, 490 U.S. 386,
395 (1989); Abdullahi v. City of Madison, 423 F.3d 763,
768 (7th Cir. 2005). This inquiry requires an examination
of the “totality of the circumstances to determine
whether the intrusion on the citizen’s Fourth Amend-
ment interests was justified by the countervailing gov-
ernment[al] interests at stake.” Jacobs v. City of Chicago,
215 F.3d 758, 773 (7th Cir. 2000). The nature and extent
of the 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, 490 U.S. at 396. If the suspect is mentally ill, the
officer’s awareness of his mental illness is also a factor
in the analysis. Abdullahi, 423 F.3d at 772. Because law-
enforcement officers must make critical, split-second
decisions in difficult and potentially explosive situa-
tions, Graham, 490 U.S. at 397, we evaluate the reason-
ableness of the officer’s actions “from the perspective of
a reasonable officer on the scene, rather than with the
20/20 vision of hindsight,” id. at 396.
The district court’s summary-judgment decision was
premised on its view that the material facts were undis-
puted, making “the reasonableness of the [officer’s use
of] force . . . a legal issue.” The court relied on Bell v. Irwin,
321 F.3d 637 (7th Cir. 2003), for this proposition, and
indeed, Bell held that “when material facts (or enough
12 No. 09-2331
of them to justify the conduct objectively) are undisputed,
then there would be nothing for a jury to do except second-
guess the officers.” Id. at 640. In this situation, we said in
Bell, the reasonableness of the force used is a legal ques-
tion. Id. But we also said that “[w]hen material facts are
in dispute, then the case must go to a jury, whether
the argument is that the police acted unreasonably
because they lacked probable cause, or that they acted
unreasonably because they responded overzealously
and with too little concern for safety.” Id. And we have
recognized that summary judgment is often inappro-
priate in excessive-force cases because the evidence
surrounding the officer’s use of force is often susceptible
of different interpretations. Catlin v. City of Wheaton, 574
F.3d 361, 367 (7th Cir. 2009). This principle is particularly
relevant where, as here, the one against whom force
was used has died, because the witness most likely to
contradict the officer’s testimony—the victim—cannot
testify. Gregory v. County of Maui, 523 F.3d 1103, 1107
(9th Cir. 2008).
Here, there is conflicting evidence about just how
much force Lieutenant Czarnecki used against Cyrus.
Czarnecki testified that he deployed the Taser five or
six times, and Dr. Biedrzycki noted that the marks on
Cyrus’s back were consistent with five or six Taser
shocks.5 The Taser’s internal computer, however, regis-
tered 12 trigger pulls during the relevant time period.
5
The district court did not exclude this portion of
Dr. Biedrzycki’s testimony.
No. 09-2331 13
Although a jury might conclude that the additional six
trigger pulls were not in fact “deployments” that emitted
an electrical charge into Cyrus’s body,6 the Taser’s
internal computer record creates enough of a factual
discrepancy on the degree of force used to preclude
summary judgment. This dispute is obviously material
because the amount of force used bears directly on
whether that force was a reasonable response to the
situation faced by the officer.
The evidence is also conflicting on the extent to which
Cyrus resisted arrest. See Graham, 490 U.S. at 396 (con-
sidering whether the defendant evaded arrest by flight).
To be sure, there is evidence that Cyrus did not obey
Czarnecki’s commands. But his behavior is susceptible
of different interpretations. The parties dispute whether
Cyrus ran or merely walked toward the house after
Czarnecki told him he was on the wrong property. And
although Czarnecki characterizes Cyrus’s barrel-roll
down the driveway as an attempt to flee, a jury might
see it differently. That is, the jury might reasonably con-
clude that the barrel-roll was an involuntary reaction
to the second Taser shock.
6
The Taser will emit only one discharge every five seconds,
even if the operator pulls the trigger more than once in a five-
second period. But the internal computer registers each
trigger pull regardless of whether that pull emits a shock. For
example, if Czarnecki pulled the trigger two times consecu-
tively, the Taser would emit only one shock but the
computer would register two trigger pulls.
14 No. 09-2331
Summary judgment was also inappropriate because a
jury could conclude that Czarnecki’s use of force was
excessive in light of the other Graham factors. Cyrus had,
at most, committed a misdemeanor offense under Wis-
consin law,7 and he was not exhibiting violent behavior,
see Casey v. City of Federal Heights, 509 F.3d 1278, 1281
(10th Cir. 2007) (noting that a lesser degree of force is
reasonable when the offense of arrest is not committed
violently). As importantly, there is no evidence sug-
gesting that Cyrus violently resisted the officers’ attempts
to handcuff him. Although he refused to release his arms
for handcuffing (or perhaps he could not because of the
influence of the Taser shock), Czarnecki knew that Cyrus
was unarmed and there was little risk Cyrus could
access a weapon while face down at the foot of the drive-
way, with his hands underneath him and having
already been shocked twice with the Taser. Moreover,
Czarnecki was familiar with Cyrus and was aware of
his mental illness; he testified at his deposition that
Cyrus had never acted violently toward him.
7
Possibilities include criminal trespass to dwelling in viola-
tion of W IS . S TAT . § 943.14, or entry onto a construction site
or into a locked building, dwelling, or room in violation of
W IS . S TAT . § 943.15(1). When Cyrus turned and moved away
from Czarnecki, he may have also violated W IS . S TAT .
§ 946.41(1), which makes it illegal to knowingly resist or
obstruct an officer acting in an official capacity. All three
possible violations are class A misdemeanors punishable by a
maximum fine of $10,000, a maximum prison term of nine
months, or both. W IS . S TAT . § 939.51(3)(a).
No. 09-2331 15
Defense counsel suggested at oral argument that if
Lieutenant Czarnecki’s first use of the Taser was reason-
able, all other uses were necessarily appropriate because
once an officer is justified in using a particular level of
force to effectuate an arrest, he can continue to use that
same level of force until the suspect is apprehended. Not
so. Force is reasonable only when exercised in propor-
tion to the threat posed, see Oliver v. Fiorino, 586 F.3d
898, 907 (11th Cir. 2009) (“Quite simply, though the
initial use of force (a single Taser shock) may have been
justified, the repeated tasering . . . was grossly dispropor-
tionate to any threat posed and unreasonable under the
circumstances.”), and as the threat changes, so too
should the degree of force, see Santos v. Gates, 287 F.3d
846, 853 (9th Cir. 2002). 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.
It’s the totality of the circumstances, not the first
forcible act, that determines objective reasonableness.
Accordingly, a jury might reasonably conclude that the
circumstances of the encounter here reduced the need for
force as the situation progressed. When Czarnecki
first arrived at the scene, he was the only officer on site,
and his concern that Cyrus might retrieve a weapon
or pose a threat to persons inside the house was clearly
reasonable. On the other hand, once Cyrus was on the
ground, unarmed, and apparently unable to stand up on
his own, the risk calculus changed. Or so a jury might
reasonably conclude. Summary judgment was therefore
inappropriate.
16 No. 09-2331
Czarnecki argues as a fallback position that because
the Estate has not challenged the district court’s exclu-
sion of much of Dr. Biedrzycki’s testimony, there is insuf-
ficient evidence to create a jury question about causa-
tion. See Berman v. Young, 291 F.3d 976, 982 (7th Cir. 2002).
We disagree, although it is certainly true that the district
court’s exclusion of key medical-examiner testimony—
an issue unaddressed and therefore abandoned on
appeal—makes the task of proving causation much
more difficult.8
Czarnecki maintains that asking a jury to infer causation
without expert testimony would be akin to proceeding
under a theory of res ipsa loquitur—improper in a § 1983
action—because the Estate would have to argue that the
8
We note again that the district judge excluded Dr.
Biedrzycki’s testimony on cause of death because she could
not “unbundle” several contributing causes, which included
Czarnecki’s use of the Taser. But we have held that an
expert’s inability to isolate one specific factor when multiple
factors cause an injury implicates the weight of the expert’s
testimony, not its admissibility. Jahn v. Equine Servs., PSC,
233 F.3d 382, 390 (6th Cir. 2000) (“The fact that several possible
causes might remain ‘uneliminated’ . . . only goes to the accu-
racy of the conclusion, not to the soundness of the methodol-
ogy.” (quotation marks omitted)). Because evidentiary weight
is a jury question, expert testimony on the cause of an injury
is admissible even when it does not eliminate all other
possible causes of injury. Id. (“In order to be admissible on the
issue of causation, an expert’s testimony need not eliminate
all other possible causes of the injury.”); see also St. Paul Mercury
Ins. Co. v. Viking Corp., 539 F.3d 623, 628-29 (7th Cir. 2008).
No. 09-2331 17
force Czarnecki used must have been excessive because
people do not ordinarily die after being shocked with a
Taser. He relies on Estate of Phillips v. City of Milwaukee,
123 F.3d 586, 594-95 (7th Cir. 1997), and Brownell v. Figel,
950 F.2d 1285, 1292-93 (7th Cir. 1991), as support for
this argument, but this reliance is misplaced. We held
in Phillips and Brownell that a plaintiff cannot ask a jury
to infer that an officer used excessive force based solely
on the fact that an injury occurred. The plaintiff must
instead identify the specific conduct of the officer that
is alleged to be excessive and unreasonable; the fact of
an injury while in police custody is not enough. We
elaborated on this principle in Abdullahi, explaining that
Phillips and Brownell “stand for the proposition that . . .
a plaintiff must identify the specific unreasonable
conduct that caused his or her injuries.” 423 F.3d at 770-
71. Thus, a plaintiff claiming that an officer used exces-
sive force cannot merely assert “that the facts support
an inference of ‘excessive force, the precise nature of
which has yet fully to come to light.’ ” Id. at 770 (quoting
Brownell, 950 F.2d at 1292).
The rule of Phillips and Brownell thus focuses on the
type of proof required to establish the first element of
an excessive-force claim—that is, that the officer in ques-
tion used objectively unreasonable force under the cir-
cumstances. Here, the Estate has amply identified the
specific conduct it contends was excessive and unreason-
able under the circumstances. Phillips and Brownell
are inapplicable.
Still, as we have noted, without expert testimony,
causation will be difficult to establish. But the record
18 No. 09-2331
contains enough evidence from which a reasonable
jury could conclude as a matter of lay judgment that
the excessive use of force—if indeed Czarnecki’s use of
force was excessive and unreasonable—caused Cyrus’s
death. Common-law rules of tort causation apply to
§ 1983 claims, see Herzog v. Vill. of Winnetka, 309 F.3d
1041, 1044 (7th Cir. 2002), and the general rule is that
expert testimony is not necessary to prove causation “if
all the primary facts can be accurately and intelligibly
described to the jury, and if they, as men of common
understanding, are as capable of comprehending the
primary facts and of drawing correct conclusions from
them as are witnesses possessed of special or peculiar
training, experience or observation.” Salem v. U.S. Lines
Co., 370 U.S. 31, 35 (1962) (quotation marks omitted); see
also Abdullahi, 423 F.3d at 771 (examining whether the
injury was consistent with excessive force).
The “primary facts” here include the close temporal
proximity between the allegedly excessive force and
Cyrus’s death: Cyrus stopped breathing just a minute or
two after being repeatedly shocked with the Taser, and
this tight chronology bears on causation. Other evidence
suggests that potential alternative causes of death may
be ruled out. For example, the toxicology report, which
the district court did not exclude, shows that Cyrus
ingested no stimulants or narcotics other than a
minimal amount of caffeine. There is no evidence that
Cyrus had any prior injuries that could have caused his
death during the confrontation with the officers, see
Brownell, 950 F.2d at 1293 (refusing to find liability
because plaintiff was also involved in a serious car
No. 09-2331 19
accident that could have caused his injury), or that he
suffered from a preexisting condition that could have
caused his cardiac arrest, Lash v. Hollis, 525 F.3d 636, 640
(8th Cir. 2008) (refusing to infer causation based on lay
evidence because, inter alia, the victim possibly suffered
from a preexisting medical condition). There is no
evidence of any possible intervening causes of death.9
In short, although the exclusion of a significant part of the
medical examiner’s testimony leaves the Estate with a
major gap in its case, the record is not so wholly devoid
of evidence on which a jury could find causation that
Czarnecki is entitled to judgment as a matter of law on
this alternative basis.
R EVERSED and R EMANDED
9
Though excluded, Dr. Biedrzycki’s testimony on causation
does suggest, however, that an individual with bipolar
disorder or schizophrenia could be more likely than an
average person to suffer cardiac arrest in this situation.
11-10-10