Civil Rights — excessive force

U.S. Court of Appeals for the 7th Circuit

Civil

Civil Rights — excessive force

Even if a plaintiff had previously resisted arrest, summary judgment was improperly granted to a police officer who, the plaintiff claims, broke his jaw after he had ceased resisting.

“By Miller’s account he was visible to Gonzalez and had been motionless for upwards of ten seconds, at gunpoint, when Gonzalez kneed him in the jaw. If true, this situation is distinguishable from the situation in Johnson v. Scott, 576 F.3d 658, 660 (7th Cir. 2009), upon which Gonzalez relies. In Johnson, a shooting suspect fled from police until he was cornered in a residential yard. Id. at 659. Literally moments after the suspect turned and offered to surrender, he was bitten by the pursuing officer’s dog and the officer struck him several times until he was handcuffed. Id. at 659–60. In affirming the district court’s grant of summary judgment on Johnson’s excessive-force claim, we ruled that, while officers may not continue to use force against a subdued suspect, Johnson was not yet known to be subdued when his pursuers applied force. Id. at 660. The critical fact in Johnson was that the officer ‘had no idea how Johnson was going to behave once he was cornered.’ Id. at 660. Unlike the arresting officer in Johnson, by Miller’s account, Gonzalez could see that he was prone and subdued at gunpoint. Given this, it would not be objectively reasonable to break Miller’s jaw to effectuate arrest (or to protect the officers), notwithstanding his previous attempt to flee. And as the cases cited above demonstrate, this was clearly established at the time of Miller’s arrest.”

Affirmed in part, and Vacated in part.

11-2906 & 12-2950 Miller v. Gonzalez

Appeals from the United States District Court for the Eastern District of Wisconsin, Randa, J., Rovner, J.