Strand v. Minchuk, 908 F.3d 300 (7th Cir. 2018)
This case involves the denial of qualified immunity in a police shooting case. According to the plaintiff’s version, which the court accepted for purpose of summary judgment, the plaintiff was unhappy about receiving parking tickets and began taking photos on his cell phone of the area to use in court. An officer told him to leave the area and the plaintiff refused. The officer slapped the phone out of his hands and demanded his identification. The plaintiff refused. The officer grabbed the plaintiff by his shirt and neck, and the plaintiff pushed back. They fell to the ground and fought. The plaintiff stood up and backed away four to five feet and put his hands up and said he surrendered. The officer removed his gun from his holster and shot the plaintiff. The plaintiff survived the gunshot and brought a claim for excessive force under 42 U.S.C. § 1983. The district court denied the officer’s motion for summary judgment based on qualified immunity, finding that there were questions of fact as to whether sufficient time had passed between plaintiff’s surrender and the use of deadly force. If there was, then the use of deadly force was not justified. The officer appealed the decision.
The Seventh Circuit affirmed the district court’s decision. It first noted it had jurisdiction under the collateral order doctrine to review the denial of qualified immunity only if the case presented a legal issue. Thus, the court had to accept the plaintiff’s version of facts and then decide whether the officer’s conduct was constitutional as a matter of law and, if not, whether the law was clearly established at the time of the incident. The court held that it could not resolve these issues because it could not view the facts in plaintiff’s favor and then find for the officer. The plaintiff had stopped fighting, stepped back 4-5 feet with his hands in the air and said he surrendered. He was not armed and made no threatening move toward the officer. The incident only concerned a minor parking ticket. Under these facts, a reasonable jury could conclude that the officer violated the plaintiff’s right to be free from excessive force. Since it was clearly established that a subdued suspect has the right not to be seized by deadly force, the existence of a factual dispute over the timing of the shooting vis a vis when plaintiff surrendered prevented the court from resolving the issue in the officer’s favor as a matter of law.