The United States Court of Appeals for the Seventh Circuit recently issued an opinion in Davis v. City of Elgin, Illinois, addressing whether officers were entitled to qualified immunity for using less-lethal force during a volatile standoff.
Summary of the Facts
In 2018, Elgin police received a phone call from a woman reporting that Mace Davis was under the influence of alcohol and had threatened his roommate and ex-wife with a shotgun. Dispatchers called the ex-wife, who confirmed it. She explained that after arguing with Davis, he went to his bedroom and reappeared with what appeared to be a rifle, put it down on the kitchen table, and stated that he should shoot her and her nephew. Although she said the gun was covered by a blanket, she saw enough to see his finger on the trigger. However, Davis then told her he was joking.
The City of Elgin dispatched patrol officers, four S.W.A.T. teams, negotiators, snipers, high-ranking police department members, an armored vehicle, and a robot to Davis’s home. Unaware that Davis had left to go to his neighbor’s and had fallen asleep, the police surrounded Davis’s house. A police negotiator eventually reached Davis by phone, but he quickly hung up. On a later call, Davis threatened to harm himself with a knife, prompting the negotiator to inform an officer via radio that Davis had threatened to slit his own throat. Officers were concerned that Davis was armed with knives, and the negotiator had stated that Davis threatened to hurt the officers, release dogs on them, and use knives on them. Davis denies threatening officers over the phone.
Sergeant Lalley authorized the use of non-lethal impact weapons to subdue Davis if he went outside, to prevent Davis from retreating into the house. Eventually, Davis emerged from the home and went outside, but he refused to follow the negotiator’s commands to come down from the porch area. Following Sergeant Lalley’s plan, Sergeant Pavoris fired plastic ammunition at Davis, which hit his right forearm and snapped the bone in half. Davis went back into the house.
Davis reemerged about ten minutes later onto the front porch, attempting to show that he was unarmed. He yelled, “So I want to know who’s that [expletive] was who shot me because I want to [bust or punch] his…face in.” In response, Davis was shot two more times in the thigh with non-lethal ammunition. As he began lowering himself to the ground, another shot was fired, which also hit him.
In the aftermath, Davis filed a lawsuit under 42 U.S.C. § 1983 against the city and police officers, claiming the officers used excessive force against him in violation of the Fourth Amendment. The district court granted summary judgment to the City of Elgin and the defendant police officers, holding that Davis failed to show the police violated his clearly established constitutional rights under the Fourth Amendment. The district court distinguished the facts of this case from prior circuit precedent established by Phillips v. Community Insurance Corp., 678 F.3d 513 (7th Cir. 2012), and found that the officers’ actions did not contravene clearly established law. Davis appealed, seeking review by the United States Court of Appeals for the Seventh Circuit.
United States Court of Appeals for the Seventh Circuit
When the case reached the Court of Appeals, the Seventh Circuit considered whether existing precedent clearly established that the officers’ use of force was unconstitutional under the circumstances. The court affirmed the district court’s grant of summary judgment for the defendant officers and the city. For the officers, the court held that qualified immunity shielded them because no binding precedent placed the unconstitutionality of their specific actions beyond debate, considering the suspect’s threats to use firearms and knives and his aggressive behavior toward officers. The court also found that Davis failed to articulate a viable claim against the City of Elgin.
On appeal, Davis argued that the district court erred in distinguishing Phillips from this case. He maintained that the Phillips decision prohibited using such a high level of force against an unarmed person who posed no immediate threat to officers. In Phillips, a woman was suspected of driving a stolen vehicle and driving under the influence. When she was stopped and commanded to get out of the car, she did not comply, and the officers realized that she was so intoxicated that she was of diminished capacity. Although she never actively resisted arrest, an officer from about forty to fifty feet away shot her with an impact weapon that had “force equivalent to a .55 magnum pistol.” The Seventh Circuit found that the officers used excessive force and were not entitled to qualified immunity.
The Seventh Circuit disagreed and explained that “From the officers’ perspective, Davis had made threats with a gun earlier in the day, had knives during the standoff, had threatened suicide, and had made threats to the officers. Taken together, Phillips did not clearly establish that the officers acted unconstitutionally.” The court stated that in this case, officers were justified in preventing Davis from retreating into the house, noting that he could have grabbed a weapon or escaped before the officers were able to apply reasonable force to incapacitate him.
Moreover, while both Phillips and Davis were intoxicated, Phillips was inebriated to the point where she had very little memory of the incident. Further, the officers in Phillips testified that she was “passing in and out of consciousness.” In other words, she did not obey commands because she was so incapacitated. Davis, however, was responding to officers, walking around, and behaving in a way that he admitted was verbally abusive. Although he did have a broken arm, the Seventh Circuit held that this was a different type of incapacitation than inebriation. Therefore, Davis’s case differed significantly from Phillips since Davis posed a greater threat and was not incapacitated in the same way.
The court then addressed Davis’s next argument, that the severity of his crime was not as great as in Phillips. The court disagreed. The police in Phillips believed that they were dealing with car theft. However, the vehicle did not match the stolen vehicle, causing the crime at the time Phillips was shot to be categorized as suspected drunk driving. The court reiterated that this analysis considers whether the officers’ actions were reasonable in “proportion to the threat posed.” Here, Davis threatened his ex-wife with a rifle, he had knives during the standoff, threatened suicide, and threatened officers. Thus, the Seventh Circuit held that qualified immunity shielded the officers because no binding precedent placed the unconstitutionality of their specific actions beyond debate.
Key Takeaways
The court reinforced that reasonableness must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight, and … 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.
The court in Davis considered the reported weapons threat, the risk of Davis retrieving a weapon from inside his home, and his continued aggressive behavior toward the officers and others. In a tactical operations situation, officers should share and document information regarding reported firearms, threats toward others and threats of self-harm, possible weapons access, refusal to follow commands, efforts to retreat to a structure, and hostile or escalating behavior. In these rapidly evolving situations, solid coordination and planning are critical and should include communication among patrol, negotiators, supervisors, tactical teams, and less-lethal operators.