Sallenger v. Oakes
| Decision Date | 10 January 2007 |
| Docket Number | No. 05-3470.,05-3470. |
| Citation | 473 F.3d 731 |
| Parties | Mary SALLENGER, as the Administrator of the Estate of Andrew B. Sallenger, deceased, Plaintiff-Appellee, v. Brian OAKES, James Zimmerman, and Jason Oliver, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
David A. Kleczek (argued), Ryan & Lifter, San Ramon, CA, for Plaintiff-Appellee.
James A. Lang (argued), Office of the Corporation Counsel, Springfield, IL, for Defendants-Appellants.
Before CUDAHY, MANION, and ROVNER, Circuit Judges.
Andrew Sallenger, who suffered from mental illness, died on April 30, 2002, while the defendants were placing him under arrest. Mary Sallenger, his mother and the administrator of his estate, brought this lawsuit against the City of Springfield and the three police officers involved in this incident, among other parties, alleging a claim under 42 U.S.C. § 1983 pursuant to the Fourth Amendment's right to be free from excessive force, among other claims. The issue in this case is whether Sergeant Zimmerman, Officer Oakes and Officer Oliver are entitled to qualified immunity. The district court determined that they were not. We agree and affirm the district court's decision to deny the individual defendants' motion for summary judgment with respect to the Fourth Amendment excessive force claim.
In the early morning hours of April 30, 2002, Andrew Sallenger, who was mentally ill, experienced a severe psychotic episode. That night, Andrew Sallenger was staying at the home of his mother, Mary Sallenger, the Administrator of Andrew's estate and Appellee in the present case. Ms. Sallenger's daughter Kim Nolan and her four children were also spending the night at Ms. Sallenger's home. After midnight, Andrew awakened the household with his screams and disturbing behavior. Ms. Sallenger, Ms. Nolan and Ms. Nolan's children left the home, and Ms. Nolan called 911 at 1:49 a.m.
According to the transcript of the exchange with the 911 operator, Ms. Nolan informed the operator that her brother was "completely naked and keeps on yelling at us ...." She asked the 911 operator to dispatch paramedics to Ms. Sallenger's home. She also notified the operator that her brother was "schizophrenic bipolar manic depressive" and that earlier in the day she had gone to the state's attorney to ask about having Andrew involuntarily committed.
Sergeant James Zimmerman, Officer Brian Oakes and Officer Jason Oliver (collectively "the officers") were immediately dispatched to Ms. Sallenger's home. They arrived shortly after 2:00 a.m. Ms. Sallenger, Ms. Nolan and Ms. Nolan's children were waiting outside of the residence when they arrived. Ms. Nolan informed the officers that her brother was mentally ill. Ms. Sallenger told the officers that she wanted the paramedics, not the officers, to assist Andrew. Ms. Nolan informed the officers that they could enter through the back door of the residence, which was unlocked. Lastly, she told Officer Oakes that Andrew was throwing things around the house, chasing the cat and chasing the other members of the household while naked.
Sergeant Zimmerman testified that Officer Oakes informed him that Andrew had a mental problem and that he was big and strong. Officer Oliver testified that Oakes and Zimmerman mentioned a conflict Andrew had had with the Springfield Police Department ("the Department") officers a few days before on April 28, 2002. Officer Oliver also testified that one of the family members told Officer Oakes and Sergeant Zimmerman that Andrew "would probably fight [them]." Andrew and the officers were all large men. Andrew weighed 262 pounds and was approximately 6' tall. Sergeant Zimmerman was 5' 10" tall and weighed 260 pounds. Officer Oakes was 5' 10" tall and weighed 220 pounds. And Officer Oliver stood 6' 3" tall and weighed 215 pounds. Officers Oakes and Oliver were both weightlifters and could bench-press approximately 275 pounds. At the time of the incident, the Department policy was to treat all potential arrestees the same way, regardless of their mental condition. None of the officers was specifically trained in how to respond to mentally ill individuals.
The officers entered the home with Sergeant Zimmerman in the lead. Sergeant Zimmerman and Officer Oliver testified that at that time they believed they would arrest Andrew for disorderly conduct. Officer Oakes testified that he did not intend to arrest Andrew at the time they entered the house. Sergeant Zimmerman announced the officers' entrance. The officers used flashlights to navigate their way through the house, which was dark. The officers made their way to his bedroom. When they first saw Andrew, he was sitting cross-legged on the floor of his bedroom, completely naked, with his back against the side of his bed, and his right side facing the officers. The officers could hear Andrew muttering something about colors and fishing. Sergeant Zimmerman recalled that there were no lights on in his bedroom; Officers Oliver and Oakes remembered a small bedroom lamp as being on.
Despite Sergeant Zimmerman's repeated announcements, Andrew did not appear to be aware of the officers' presence. Andrew first acknowledged them by saying, "Hey, what are you guys doing here?" According to the officers, Andrew then threw a small, white object resembling an ashtray that landed close to Sergeant Zimmerman.1 After acknowledging the officers' presence, Andrew stood up and approached the officers, who were standing about five to six feet away from Andrew. According to Sergeant Zimmerman, Andrew stood up, swore at them, rushed at Zimmerman, grabbed his shoulder radio equipment and knocked the flashlight out of his right hand. Officer Oakes, who was behind Zimmerman, testified that Andrew swore at the officers, threatened to kill them, clenched his fists and came at them with his fists up. Officer Oliver, who was behind Oakes, testified that Andrew swore at the officers, clenched his fists, approached in a "boxing position," stopped in front of Zimmerman and started to reach for him.
At that time, Officer Oakes sprayed oleoresin capsicum (OC) spray, commonly known as pepper spray, into Andrew's face. Some of the spray also hit Zimmerman's face. Sergeant Zimmerman pushed Andrew backward, and both of them fell into the bedroom with Sergeant Zimmerman on top of Andrew. Andrew then managed to turn himself onto his stomach. Officer Oakes grabbed Andrew's right arm, and Sergeant Zimmerman grabbed his left. At the same time, Officer Oakes attempted to control Andrew's legs. As Andrew tucked his arms under him, the officers struggled with Andrew to maneuver his arms behind his back so that they could handcuff him. During the struggle, the officers repeatedly told Andrew that he was under arrest and commanded him to stop resisting arrest. Andrew repeatedly told the officers to leave and threatened to kill them.
Andrew managed to bring himself up onto his hands and knees. Officer Oliver put his knee across Andrew's shoulder blades to try to push him back down on the ground. Andrew managed to lunge to the bed, lifting his torso on the bed, with his knees on the floor. All three officers followed Andrew to the bed. Andrew tucked his arms under his torso to prevent handcuffing. During the move to the bed, the lamp was knocked over. Officer Oakes testified that he threw his flashlight onto the bed to illuminate the room. Ms. Nolan testified that she saw the bedroom light go out and then witnessed what she described as a flashlight beam "moving around ... like a hitting motion. . . ."
Soon after Andrew was on the bed, Officer Oliver and Sergeant Zimmerman were able to maneuver Andrew's arms behind his back and handcuff him. Before Andrew was handcuffed, the officers applied several types of force, which were increasingly severe, to get him to comply with their orders. First, Officer Oliver used several pressure-point techniques, which were ineffective. Sergeant Zimmerman used an armbar technique in order to maneuver Andrew's left arm into a position where handcuffs could be placed. Second, both Officer Oliver and Officer Oakes administered closed-fist blows to Andrew. Officer Oliver struck Andrew's right shoulder two or three times. Officer Oakes struck Andrew's right common peroneal area, the site of a nerve behind the right thigh, with two sets of triple punches. Third, Officer Oakes struck Andrew with three sets of triple blows with the flashlight in Andrew's right common peroneal area.
According to the officers, despite being handcuffed, Andrew continued to struggle. He attempted to pull his hands apart, and he threatened to kill the officers unless they removed his handcuffs. Andrew also kicked Officer Oakes several times. After he was handcuffed, Officers Oakes and Oliver continued to exert additional force, beyond open-hand control, on Andrew. Officer Oliver delivered two closed-fist punches to Andrew's shoulder area and two blows with the flashlight to Andrew's upper arm. Officer Oliver testified that he thought Andrew was reaching for Oliver's duty belt. Officer Oakes delivered a fourth set of triple blows with the flashlight to Andrew's right common peroneal area. Officer Oakes testified that after this fourth set of blows Andrew "stopped kicking, stopped trying to move."
Sergeant Zimmerman left the bedroom to wash the OC spray out of his eyes. He returned to check on the situation. After hearing from Officers Oakes and Oliver that everything was all right, Sergeant Zimmerman left again to flush the OC spray from his eyes. When Sergeant Zimmerman returned again, Officer Oakes give him his car keys and asked him to retrieve the hobble he kept in his police car. A hobble is a cord that is looped around the lower legs and then connected to a strap which is attached to handcuffs.
At the time of the incident, the Department allowed, and even...
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