McNair v. Coffey

Citation234 F.3d 352
Decision Date08 December 2000
Docket NumberNo. 00-1139,00-1139
Parties(7th Cir. 2000) Victor R. McNair and Tr K. McNair, Plaintiffs-Appellants, v. Sean Coffey, Defendant-Appellee
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Appeal from the United States District Court for the Western District of Wisconsin. No. 99-C-163-S--John C. Shabaz, Chief Judge.

Before Cudahy, Coffey, and Easterbrook, Circuit Judges.

Easterbrook, Circuit Judge.

A jury awarded brothers Victor and Tr McNair $5,000 apiece to compensate them for the fright and indignity they suffered when officer Sean Coffey pulled over their car and, with the aid of seven other officers (a total of eight squad cars), arrested them at gunpoint for the offense of not paying parking tickets. The jury concluded that, by treating these scofflaws as if they were armed bank robbers apprehended after a high speed chase, officer Coffey used excessive force and thus violated the fourth amendment, as interpreted in Graham v. Connor, 490 U.S. 386 (1989), and Lester v. Chicago, 830 F.2d 706 (7th Cir. 1987).

Taken in the light most favorable to the verdict, as it must be, the evidence shows that the McNairs were driving peaceably to church one evening when officer Coffey put on his lights to signal them to stop. Coffey had adequate reason to do this: a check showed that the license plate had been suspended for nonpayment of parking fines. Although Coffey was not interested in this offense but wanted instead to look into the possibility of drugs, probable cause for the stop was not undercut by Coffey's desire to investigate a different offense. Whren v. United States, 517 U.S. 806, 811-13 (1996). Driving in a rough neighborhood, the McNairs were hesitant to stop on a poorly lighted street. So they did not immediately pull over but drove slowly to a well illuminated gas station, where they pulled off the road and waited for the police car. Officer Coffey meanwhile had radioed his dispatcher that a chase was in progress and called for armed backup. The McNairs stopped about a mile from the place where Coffey turned on the patrol car's flashing lights. The price of this delay was that the police treated the McNairs like desperadoes who had been firing tommy guns out the windows.

According to Coffey, this was a "high risk traffic stop"--not only because of the neighborhood but also because the McNairs did not stop immediately and the officer was not sure how many persons were in the car. Coffey's response was to crouch behind the door of his squad car, point a semiautomatic pistol at the McNairs, and demand over a loudspeaker that they put their hands against the inside roof of the car. They complied without making any suspicious move. When other patrol cars had arrived, and at least four more officers had the McNairs in their sights, Coffey ordered them to get out with their hands in the air; again they complied peaceably. Both McNairs were handcuffed and arrested--a step that enabled Coffey to search their persons and their car. (He found nothing unlawful.) Tr , who had been the passenger, was released after about 25 minutes, and Victor after an hour. Both were shaken by the experience.

Neither McNair was roughed up, and although the officers' histrionics seem a bit much for a traffic stop, we do not deprecate the risk that confronts the police in these situations. Perhaps Coffey could have argued that an excessive display of force must be distinguished from an excessive use of force. See Gumz v. Morrissette, 772 F.2d 1395, 1408-09 (7th Cir. 1985) (concurring opinion). But he did not move for judgment under Fed. R. Civ. P. 50 either at the close of the evidence or after the verdict. Instead he accepted the jury's conclusion that the conduct violated the fourth amendment and argued that, even so, he is entitled to qualified immunity from civil liability. With this contention the district court agreed, setting aside the verdict and entering judgment for Coffey. The judge relied principally on Wilson v. Layne, 526 U.S. 603, 614-18 (1999), one of many cases implementing the holding of Anderson v. Creighton, 483 U.S. 635 (1987), that until the constitutional right has been made specific enough that a reasonable officer would be aware of his obligations, immunity offers protection.

Public officials must act in the shadow of legal uncertainty. Unlike private actors, who can retire from the fray while legal debate persists, police must protect the public (and themselves) as best they can while coping with complex bodies of law that not only change but also often leave important subjects unresolved for extended periods. When the law is in flux, or when the only applicable norm is a multi-factor balancing test incapable of predictable application, prospective relief is used in lieu of damages. See Auriemma v. Rice, 910 F.2d 1449 (7th Cir. 1990) (en banc); Greenberg v. Kmetko, 840 F.2d 467 (7th Cir. 1988) (en banc).

For many years the analysis of excessive-force claims was beset by legal uncertainty. Some courts analyzed these claims under the fourth amendment, some under the fifth (and, if under the fifth, some for "conscience-shocking" conduct, a standard very hard to pin down in practice). Some courts used a subjective approach, others an objective one. Uncertainty about the legal standard ended, however, with the Supreme Court's opinion in Graham, which adopts an objective approach under the fourth amendment. There may still be uncertainty in the application of that standard to particular situations, but this is not the kind of legal uncertainty that Anderson and Wilson discuss. It is enough that the rule of law be specific in its relation to the facts--and Graham makes the norm as clear as the judiciary can achieve, more specific than rules of tort law under which juries regularly award large damages against surgeons and auto manufacturers.

Still, Coffey insists, he is entitled to immunity unless a reasonable officer in his position would have known that the Graham standard labeled his conduct excessive. Six courts of appeals agree with this proposition. Napier v. Windham, 187 F.3d 177, 188 (1st Cir. 1999); Finnegan v. Fountain, 915 F.2d 817, 822-23 (2d Cir. 1990); Slattery v. Rizzo, 939 F.2d 213, 215-16 (4th Cir. 1991); Brown v. Glossip, 878 F.2d 871, 873-74 (5th Cir. 1989); Landrum v. Moats, 576 F.2d 1320, 1327-28 (8th Cir. 1978); Gold v. Miami, 121 F.3d 1442, 1446 (11th Cir. 1997). We are not among these courts, however. See Frazell v Flanigan, 102 F.3d 877 (7th Cir. 1996); Titran v. Ackman, 893 F.2d 145 (7th Cir. 1990). Frazell holds that "once a jury has determined under the Fourth Amendment that the officer's conduct was objectively unreasonable, that conclusion necessarily resolves for immunity purposes whether a reasonable officer could have believed that his conduct was lawful." 102 F.3d at 886-87. This conclusion has the support of at least four other circuits. Holt v. Artis, 843 F.2d 242, 246 (6th Cir. 1988); Katz v. United States, 194 F.3d 962 (9th Cir. 1999), cert. granted under the name Saucier v. Katz (No. 99- 1977, Nov. 11, 2000); Street v. Parham, 929 F.2d 537, 540, 541 n.2 (10th Cir. 1991); Scott v. District of Columbia, 101 F.3d 748, 759 (D.C. Cir. 1996). The Supreme Court may resolve this conflict in Saucier; unless superseded by higher authority, however, the position articulated in Frazell prevails in this circuit.

This is not to say that qualified immunity is inconceivable in an excessive-force case. See Ellis v. Wynalda, 999 F.2d 243, 246 n.2 (7th Cir. 1993). Judges rather than juries resolve immunity defenses, and a judge might conclude before trial--indeed, before discovery, see Hunter v. Bryant, 502 U.S. 224 (1991)--that the circumstances would not have alerted a...

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8 cases
  • McNair v. Coffey
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • January 29, 2002
    ...used excessive force in arresting them precluded any possibility of qualified immunity for the arresting officer. McNair v. Coffey, 234 F.3d 352 (7th Cir.2000). After Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), held that an officer may be immune from damages if th......
  • Shaw v. Leatherberry
    • United States
    • Wisconsin Supreme Court
    • December 6, 2005
    ..."a § 1983 case is not a criminal prosecution, and the preponderance standard applies to civil claims of all sorts." McNair v. Coffey, 234 F.3d 352, 355 (7th Cir.2000), vacated on other grounds by 533 U.S. 925, 121 S.Ct. 2545, 150 L.Ed.2d 713 (2001), overruled on remand McNair v. Coffey, 279......
  • U.S. v. Guadarrama
    • United States
    • U.S. District Court — Eastern District of Wisconsin
    • January 12, 2001
    ...argument here. First, there may be a distinction between an excessive display of force and an excessive use of force, McNair v. Coffey, 234 F.3d 352, 354 (7th Cir.2000), and Guadarrama does not allege that he was assaulted or roughed up. Second, although damages are available in a civil § 1......
  • Medina v. Cram
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • June 12, 2001
    ...is usually a question of fact for the jury"), cert. granted sub nom. Saucier v. Katz, 121 S. Ct. 480 (2000).2 Likewise in McNair v. Coffey, 234 F.3d 352 (7th Cir. 2000), petition for cert. filed, 69 U.S.L.W. 3631 (U.S. Mar. 8, 2001) (No. 00-1456), Judge Easterbrook, writing for the court, r......
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