McDonald by McDonald v. Haskins

• Decision Date: 01 July 1992
• Docket Number: No. 91-2045,91-2045
• Citation: 966 F.2d 292
• Parties: Talmadge McDONALD, III, a Minor, by His Mother and Next Friend, Glynis R. McDONALD, Plaintiff-Appellee, v. Patrick E. HASKINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 292

966 F.2d 292

Talmadge McDONALD, III, a Minor, by His Mother and Next Friend, Glynis R. McDONALD, Plaintiff-Appellee, v. Patrick E. HASKINS, Defendant-Appellant.

No. 91-2045.

United States Court of Appeals Seventh Circuit.

Argued Jan. 10, 1992.

Decided July 1, 1992.

George E. Weaver, Robert C. Gislason (argued), Chicago, Ill., for plaintiff-appellee.

Thomas G. DiCianni (argued), Steven V. Hogroian, Ancel, Glink, Diamond & Cope, Chicago, Ill., for defendant-appellant.

Before BAUER, Chief Judge, and FLAUM and RIPPLE, Circuit Judges.

FLAUM, Circuit Judge.

Police Officer Patrick Haskins brings this interlocutory appeal--as is his right, see Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985)--from the district court's denial of his Rule 12(b)(6) motion to dismiss on qualified immunity grounds Talmadge McDonald's excessive force claim brought under 42 U.S.C. § 1983. One may certainly raise an immunity defense in a motion to dismiss; this means, however, that the only facts before us on appeal are those alleged in the complaint, which at this juncture we must take as true. See K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 847 (7th Cir.1990).

The pertinent facts alleged in McDonald's complaint are as follows. During a search of the McDonald residence on October 27, 1989, Officer Haskins held a gun to the head of McDonald, a 9-year-old child, and threatened to pull the trigger. At the time of the incident, McDonald posed no threat to the safety of Haskins or any other police officer present, was not actively resisting arrest or attempting to evade arrest by fleeing, and was not engaged in any assaultive behavior toward Haskins or the other officers. Further, McDonald was neither under arrest nor suspected of committing a crime, was not armed, and was not interfering or attempting to interfere with Haskins or any other officers in the execution of their duties.

Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989), held that all excessive force claims against law enforcement officers, whether in the course of an arrest, investigatory stop, or other "seizure" of a free citizen, must be analyzed under the Fourth Amendment's "objective reasonableness" standard. Our inquiry looks to "whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id. at 397, 109 S.Ct. at 1872.

The relation between Graham's purely objective test for excessive force claims and the comparable approach adopted in Harlow v. Fitzgerald for determining qualified immunity, see 457 U.S. 800, 819, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982) (whether an official is protected by qualified immunity depends upon the "objective legal reasonableness" of the action), is somewhat uncertain. Compare Brown v. Glossip, 878 F.2d 871 (5th Cir.1989) (even if plaintiff proves excessive force, in order to overcome defendant's qualified immunity defense plaintiff must still allege facts sufficient to show that defendant did not act in "objective good faith" under Harlow test) with Calamia v. City of New York, 879 F.2d 1025 (2d Cir.1989) (showing excessive force under Graham test sufficient to demonstrate that officer did not act in "objective good faith"). Although Titran v. Ackman, 893 F.2d 145, 146 (7th Cir.1990), suggested that this Circuit would opt for the Second Circuit's approach, we need not decide that matter here. It is sufficient for our purposes to determine whether, at the time of the alleged seizure, a reasonable officer could have believed that Haskins' conduct was constitutional "in light of clearly established law and the information [Haskins] possessed" at the time the incident occurred. See Anderson v. Creighton, 483 U.S. 635, 639, 641, 107 S.Ct. 3034, 3038, 3039, 97 L.Ed.2d 523 (1987); see also Juriss v. McGowan, 957 F.2d 345, 348-49 (7th Cir.1992); Auriemma v. Rice, 910 F.2d 1449, 1452 (7th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2796, 115 L.Ed.2d 970 (1991).

Haskins contends he is entitled to immunity because, under the law in force on October 27, 1989, see Elliott v. Thomas, 937 F.2d 338, 341 (7th Cir.1991) (question on interlocutory appeal is state of the law when defendant acted), cert. denied, --- U.S. ----, 112 S.Ct. 973, 117 L.Ed.2d 138 (1992), it was not clearly established "that it was an unconstitutional use of force for a police officer to point his gun at the head of a resident of an apartment ongoing [sic] a lawful search." Def.'s Br. at 9. He further maintains that his immunity defense should succeed "if no case exists that proscribes the defendant's conduct." Id. at 10.

Although Haskins is correct that we must characterize the right in question with particularity, see Auriemma, 910 F.2d at 1455, he errs in maintaining that qualified immunity cannot be found absent a case with facts analogous to the one at hand. The guiding principle, of course, is that "the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson, 483 U.S. at 640, 107 S.Ct. at 3039. The level of generality at which the relevant legal "rule" is identified cannot be so abstract as to convert the rule of qualified immunity into a rule of virtually unqualified liability. Anderson, 483 U.S. at 639, 107 S.Ct. at 3038; see K.H. ex rel. Murphy, 914 F.2d at 851. But this does not require a prior case that is "precisely on all fours on the facts and law involved here." Landstrom v. Illinois Dep't of Children & Family Servs., 892 F.2d 670, 676 (7th Cir.1990); see Cleveland-Perdue v. Brutsche, 881 F.2d 427, 431 (7th Cir.1989), cert. denied, --- U.S. ----, 111 S.Ct. 368, 112 L.Ed.2d 331 (1990); Lojuk v. Johnson, 770 F.2d 619, 628 (7th Cir.1985), cert. denied, 474 U.S. 1067, 106 S.Ct. 822, 88 L.Ed.2d 795 (1986). Rather McDonald must adequately plead the violation of a constitutional right that is "sufficiently particularized to put [Haskins] on notice that [his] conduct probably is unlawful." Landstrom, 892 F.2d at 676 (quoting Azeez v. Fairman, 795 F.2d 1296, 1301 (7th Cir.1986)). Although its application is rarely as simple as its articulation, "[t]he test for immunity is whether the law is clear in relation to the specific facts confronting the public official when he acted." Rakovich v. Wade, 850 F.2d 1180, 1209 (7th Cir.) (en banc ), cert. denied, 488 U.S. 968, 109 S.Ct. 497, 102 L.Ed.2d 534 (1988).

As to the state of the law on October 27, 1989, Haskins latches onto dicta from Wilkins v. May, 872 F.2d 190, 194 (7th Cir.1989), cert. denied, 493 U.S. 1026, 110 S.Ct. 733, 107 L.Ed.2d 752 (1990), which states that "the action of a police officer in pointing a gun at a person is not, in and of itself, actionable.... Where the officer merely points a gun at a suspect in the course of arresting him, the suspect would have no basis for claiming that he had been seized with excessive force in violation of the constitution." Yet the Wilkins standard, by its own terms, applies to an officer's actions in the course of arresting a suspect. Here, according to the facts in the complaint (which, for present purposes, we accept as true) McDonald was not being arrested, nor was he even suspected of committing a crime.

Indeed, Haskins' representation of the salient facts--that it was not excessive force "for a police officer to point his gun at the head of a resident of an apartment ongoing [sic] a lawful search"--omits those most relevant here: McDonald was not under arrest; Haskins did not merely point a gun at McDonald but rather, held a gun to McDonald's head and threatened to pull the trigger; and McDonald was, at the time the incident occurred, only nine years old. Moreover, McDonald, according to the complaint, posed no threat to Haskins, to his fellow officers, or to the general community. These are the very ingredients relevant to an excessive force inquiry. See id. at 193 (excessive force inquiry looks to whether the force used to seize the suspect was excessive in relation to the danger he posed--to the community or to the arresting officers--if left unattended).

For his part, McDonald relies on Black v. Stephens, 662 F.2d 181 (3d Cir.1981), cert. denied, 455 U.S. 1008, 102 S.Ct. 1646, 71 L.Ed.2d 876 (1982). The defendant in Black, an undercover detective driving an unmarked patrol...