Dockery v. Blackburn

• Decision Date: 19 December 2018
• Docket Number: No. 17-1881,17-1881
• Citation: 911 F.3d 458
• Parties: Patrick Ryan DOCKERY, Plaintiff-Appellee, v. Sherrie BLACKBURN and Terry Higgins, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

911 F.3d 458

Patrick Ryan DOCKERY, Plaintiff-Appellee,

v.Sherrie BLACKBURN and Terry Higgins, Defendants-Appellants.

No. 17-1881

United States Court of Appeals, Seventh Circuit.

Argued January 3, 2018

Decided December 19, 2018

Everett J. Cygal, Attorney, David Pi, Attorney, Robert B. Murphy, Attorney, Schiff Hardin LLP, Chicago, IL, for Plaintiff-Appellee.

Michael D. Bersani, Attorney, Glenn David Mathues, Attorney, Yordana Wysocki, Attorney, Hervas, Condon & Bersani, Itasca, IL, for Defendants-Appellants.

Before Easterbrook and Sykes, Circuit Judges, and Reagan, District Judge.^*

Sykes, Circuit Judge.

Patrick Dockery was arrested after a domestic dispute at his girlfriend’s apartment in Joliet, Illinois. Sergeant Sherrie Blackburn and Officer Terry Higgins took him to the police station for booking on charges of trespass and criminal damage to property. He grew confrontational while being fingerprinted, and the officers told him that he’d have to be handcuffed to a bench for the rest of the booking process. Things escalated quickly. Dockery angrily pulled away, fell over, and kicked wildly at the officers. By the time the officers managed to handcuff him, Sergeant Blackburn had used her Taser four times. A security camera recorded the entire incident.

Nearly two years later, Dockery sued the officers for damages under 42 U.S.C. § 1983, accusing them of using excessive force in violation of the Fourth Amendment. The officers moved for summary judgment, claiming qualified immunity based on the incontrovertible facts captured on the booking-room video recording. A magistrate judge denied the motion, and the officers sought interlocutory review.

Our jurisdiction to review an order denying qualified immunity is limited to questions of law; we may not review a determination that the evidence is sufficient to proceed to trial. See Johnson v. Jones , 515 U.S. 304, 319–20, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) ; Stinson v. Gauger , 868 F.3d 516, 524 (7th Cir. 2017) (en banc). An excessive-force claim requires an assessment of whether the officer’s use of force was objectively reasonable under the circumstances. Graham v. Connor , 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Under this standard and based on the irrefutable facts preserved on the video, the officers are entitled to qualified immunity. The video shows that Sergeant Blackburn first deployed the Taser when Dockery was flailing and kicking and actively resisting being handcuffed. Blackburn then used the Taser three more times to subdue and gain control over a still-struggling Dockery as he kicked, attempted to stand up, and otherwise resisted commands to submit to their authority. No case clearly establishes that an officer may not use a Taser under these circumstances. Accordingly, we reverse and remand with instructions to enter judgment for Sergeant Blackburn and Officer Higgins.

I. Background

Our account of the facts comes from the evidence in the summary-judgment record, construed in Dockery’s favor as the nonmoving party. Locke v. Haessig , 788 F.3d 662, 665 (7th Cir. 2015). There is a qualifier, however: to the extent Dockery’s story is "blatantly contradicted" by the video such that no reasonable jury could believe it, we do not credit his version of events. Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

On July 13, 2011, Tina Rose called 911 and reported that her boyfriend, Patrick Dockery, was high on phencyclidine ("PCP") and had barged into her apartment at the Evergreen Terrace complex. Based on a prior domestic dispute with Rose, Dockery had been banned from the apartment complex. Sergeant Blackburn and Officer Higgins responded to the 911 call. When they arrived, Rose told them that Dockery had entered her apartment high on PCP and was yelling and punching holes in the wall. She directed them to an upstairs bedroom. There the officers located Dockery sitting on a bed. They also noticed a hole in the bedroom door. They arrested Dockery for trespass and criminal damage to property and transported him to a nearby hospital based on their concern that he was on PCP. Dockery contests their motivation, but this factual dispute is immaterial. The parties agree that Dockery remained calm and cooperative during this time.

Dockery was examined at the hospital and cleared for release, and the officers then took him to the Joliet Police Department for booking. To understand what happened next requires some background on Sergeant Blackburn’s Taser x26 model. The Taser x26 has three modes. "Probe mode" or "dart mode" is used when an officer fires a Taser at a distance. The Taser shoots two metal prongs that attach to the subject’s body. An electric current flows between the prongs, causing momentary neuromuscular incapacitation by rapidly contracting the subject’s muscles. Each trigger pull produces five seconds of 5,000-volt electrical pulses with 19 pulses per second. Both prongs must attach to the subject to cause incapacitation.

Next, an officer may use "three-point" mode when only one working prong is attached to the subject. This often occurs when the other prong misses the target, is damaged, or is pulled out by the subject. To complete the electrical circuit with the attached prong, the officer presses the nose of the Taser directly on the subject’s body. Three-point mode thereby produces neuromuscular incapacitation in the same manner as probe mode.

Finally, an officer may use the Taser x26 in "drive-stun" mode. This mode does not require a probe to be attached to the subject. The officer presses the nose of the Taser directly on the subject’s body and electricity flows between two electrodes on the end of the device. Unlike the other modes, drive-stun mode does not work by way of neuromuscular incapacitation. The officer instead uses drive-stun mode for "pain compliance," which induces a subject to submit to an officer’s directions.

When the officers arrived at the station with Dockery, they led him through the adult booking room and then through an open door into the adjacent juvenile booking room. Security-camera footage from each booking room is in the record. Sergeant Blackburn’s Taser also had a built-in video camera that automatically started recording within 1.5 seconds of deployment. The Taser recorded black-and-white footage and audio of the incident.

The officers removed Dockery’s handcuffs and permitted him to use a restroom adjacent to the juvenile booking room. That took nearly ten minutes. Dockery then freely wandered back into the adult booking room and calmly sat on a bench for four minutes. He walked back to the juvenile booking room and made a short phone call. Once he finished his call, Sergeant Blackburn told him to come back to the adult booking room for fingerprinting.

Dockery entered the adult booking room and followed instructions to wash his hands. He then walked across the room to the electronic fingerprinting station. Officer Higgins stood next to Dockery and guided his fingers on the machine. About one minute into the fingerprinting, Dockery started to sway and became visibly restless. He tapped Higgins on the shoulder twice before playfully grabbing Higgins’s shoulder and shaking it. Higgins regarded this action as disrespectful. He stopped the fingerprinting and took a step back. Higgins called Dockery a "smart ass" and told him that he would be handcuffed to a nearby bench for the rest of the process. Dockery’s demeanor immediately changed. He folded his arms across his chest, took a step toward Higgins, and grabbed Higgins’s hand. Higgins freed himself from this grasp, pulled Dockery’s hand behind his back, and started to move him toward the bench.

Sergeant Blackburn, who was sitting behind a desk across the room, stood up and unholstered her Taser. But she did not immediately turn the device on. As Higgins continued to guide Dockery toward the bench, Dockery noticed the Taser and abruptly started to move toward Blackburn. She is much smaller than Dockery—three inches shorter and at least 100 pounds lighter. Dockery managed to pull his left arm free from Officer Higgins’s grasp, and he aggressively pointed it at Blackburn’s face. Blackburn grabbed Dockery’s arm with her free hand and brought it behind his back.

A struggle ensued. Dockery rocked back and forth as the officers attempted to handcuff him. Dockery suddenly fell backward, wildly kicked his legs in the direction of Officer Higgins, and then jumped back to his feet. At this point Sergeant Blackburn activated her Taser and fired. The Taser shock briefly incapacitated Dockery; he lay face down on the ground for about two seconds. He then looked over his left shoulder, saw Higgins approaching with handcuffs, and quickly flipped over and kicked his leg out at Higgins for a second time. Both officers retreated and stood a few feet away while ordering Dockery to "get on the ground." Dockery didn’t comply with their orders. Instead, he continued to sit upright and appeared to pull out one of the Taser prongs.

Officer Higgins stood about three feet away from Dockery with open handcuffs. The officers again told Dockery to "get on the ground," but he continued to sit upright. Blackburn pulled the Taser trigger three times, but these trigger pulls were ineffectual because one of the prongs was either damaged or detached. As Sergeant Blackburn moved in closer to Dockery, he turned his body toward her, pointed an arm in her direction, and attempted to stand.

At this point—18 seconds after the first Taser shock—Sergeant Blackburn directly applied the Taser to Dockery’s upper back for a split second as she tried to reposition him on the ground for handcuffing. Specifically, she pushed down on his shoulder with her left hand as she applied the Taser with her right. Dockery still didn’t comply. He very quickly rolled toward Blackburn with his arms and legs outstretched.

Sergeant Blackburn tried again. She positioned herself behind Dockery a...