Miller v. Gonzalez

• Decision Date: 05 August 2014
• Docket Number: 12–2950.,Nos. 11–2906,s. 11–2906
• Citation: 761 F.3d 822
• Parties: Julian J. MILLER, Plaintiff–Appellant, v. Alberto GONZALEZ and Shane Stange, Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

761 F.3d 822

Julian J. MILLER, Plaintiff–Appellant,

v.Alberto GONZALEZ and Shane Stange, Defendants–Appellees.

Nos. 11–2906, 12–2950.

United States Court of Appeals,Seventh Circuit.

Argued June 4, 2014.

Decided Aug. 5, 2014.

David M. Friebus, Baker & Hostetler LLP, Chicago, IL, for Plaintiff-Appellant.

Tony Matthew Dunn, John V. O'Connor, Alia, Dumez, Dunn & McTernan, Kenosha, WI, for Defendants–Appellees.

Before DIANE P. WOOD, Chief Judge, CUDAHY and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

Julian Miller began the evening of October 24, 2003 at his mother's wedding reception, and ended it in the back of a police cruiser with a broken jaw. Miller blamed two police officers from the Kenosha, Wisconsin police department for intentionally breaking his jaw and sued them under 42 U.S.C. § 1983 for violating his civil rights by using excessive force in effectuating his arrest. The district court granted the police officers' motions for summary judgment and Miller appeals.

I.

Before entering his mother's 9:00 p.m. wedding reception, Miller and a friend smoked marijuana. At the reception, Millerdrank three shots of vodka in an hour and a half. When the reception ended at approximately 10:00 p.m. or 10:30 p.m., Miller dropped off his girlfriend and then headed to a local bar in Kenosha. Before he entered the bar, he smoked some more marijuana and then topped off that high with three more Heineken beers before leaving for another bar at around 1:00 a.m. Apparently unready to go home, Miller headed off to one more bar, where he drank a few more beers and then bought a final Heineken for the road before heading off to a gas station where he planned to use the pay phone to call his girlfriend.

Just as Miller was driving to the gas station, the Kenosha police department received a call about a stabbing that occurred about two blocks away from the same gas station. Kenosha Police Officer Albert Gonzalez searched the surrounding neighborhood for the suspect while Officer Shane Stange interviewed the witness to the stabbing. That witness, who lived on the floor below where the stabbing occurred, told Stange that at around 1:40 a.m. he heard a knock at a side door that led to the upstairs apartment. After hearing noises, the witness went out to the front porch where he saw someone wearing a dark hooded sweatshirt run around the house and then head west on 44th Street. The witness's upstairs neighbor shouted from the front yard, “Call the cops. I've been stabbed.” The victim told the witness, who told Stange, that although the person who stabbed him was wearing a ski mask, he believed it was his ex-wife's boyfriend.

The sergeant in charge informed Gonzalez that the suspect fled west on 44th Street (the street on which the home was located) for one block and then headed south on 21st Avenue. Gonzalez walked that route until he reached the gas station one block west and one block south—at the corner of 21st Avenue and 44th place. As Gonzalez approached the gas station, he saw Miller's red car idling in a corner of the gas station. And as he got closer, he saw Miller exit the car drinking a beer. In answer to Gonzalez's inquiry, Miller denied seeing anyone running in the area. Gonzalez asked Miller his name to which Miller, knowing he was on probation, was driving without a license, and had been seen exiting his car with a beer, replied with the fake name, “Julius Johnson.” When Gonzales asked Miller if he was on probation, Miller admitted that he was indeed on probation for burglary and disorderly conduct. Miller, who was becoming increasingly fidgety and nervous over the course of the exchange, placed his hands in his front pockets. Gonzalez instructed Miller to take his hands out of his front pockets and not to run. Miller switched his hands from his front pockets to his back pockets, took a step backwards and took off running with Gonzalez in pursuit.

Serendipitously, Miller headed north on 21st Avenue and then east on 44th Street, directly back toward the scene of the stabbing. Gonzalez's sergeant, who had been at the gas station, radioed Stange, who was still at the scene of the stabbing, that Gonzalez was pursuing a suspect and that they were headed in his direction. Stange emerged from the house in time to see Gonzalez chasing Miller east on 44th Street straight toward him. As Stange came down from the porch and identified himself as a police officer, Miller darted to the left and jumped a chest high chain link fence into a small yard.

As with his other choices that evening, this one was ill conceived. The yard was only six to seven feet wide by eight to ten feet deep. It was enclosed on the south and east sides by the chest high chain link fence, on the west side by the side of the garage, and on its north side by a tall wooden fence. The yard was overgrown with tall weeds and had a light shining into it from a nearby source. Once he jumped the fence, Miller was trapped. The wood fence and garage blocked the north and west of the yard respectively and Gonzalez was approaching from the south. Stange jumped the south fence after Miller and, with his gun drawn, ordered Miller to the ground. In response to Stange's command, Miller turned around, took a few steps away from the wooden fence, lay down on his stomach, and placed his arms spread-eagle out to his sides. According to Stange's version of the facts, Miller kept his arms under his body and ignored his repeated commands to place his hands behind his back, but because this case comes before us from a motion for summary judgment, we take all of the facts, including this one, in the light most favorable to Miller, and construe all reasonable inferences from the evidence in his favor. Townsend v. Cooper, No. 12–3620, 759 F.3d 678, 684–85, 2014 WL 3511731, at *5 (7th Cir. July 17, 2014).

At this point, Miller was lying on the ground with his head pointing south toward 44th street and close to the chain link fence, his feet pointing north toward the wooden fence, and his face was on the ground turned to the east, toward the eastern side of the chain link fence. Seconds after Miller lay down on the ground in response to Stange's order, Gonzalez arrived. Gonzalez testified that he could not see Miller at all. Miller does not dispute this, but argues that he submitted competent evidence that the yard was lighted from a nearby source, and that any weeds in the yard did not cover the entire area such that they would hide him from view. Relying on this evidence, Miller asserts, a jury could reasonably discredit Gonzalez's claim that he could not see that Miller was spread-eagle on the ground and thus no longer a threat to anyone—an assertion we will explore more below. Gonzalez jumped the chain link fence and landed directly on Miller's head, breaking his left jaw.

As the officers handcuffed Miller and walked him to the car, Miller continued to resist and told Gonzalez, “You ain't have to break my jaw.” In response, Gonzalez said, “I told you not to run.”

On the way to the squad car, Miller told the officers, “I ain't going to say anything about this. Just let me go.” The officers declined the deal and instead insisted that Miller receive medical care at the hospital where he had emergency surgery to repair his broken jaw. Miller's jaw was wired shut for about six weeks and he was placed on a liquid diet and had pain that could not be controlled with over-the-counter pain medication. Miller now complains of a persistent click in his jaw when he opens his mouth.

Miller filed suit against Officers Stange and Gonzalez under 42 U.S.C. § 1983 claiming that the officers violated his Fourth Amendment rights by using excessive force during his arrest. Specifically, Miller alleged that Gonzalez used excessive force when he fractured Miller's jaw and that Stange was liable for failing to prevent Gonzalez from injuring him.

Gonzalez and Stange filed a motion for summary judgment arguing that no reasonable jury could find that their actions were objectively unreasonable because Miller's injuries resulted from an accident rather than through intentional acts, and that if it was purposeful, the force was reasonable given the circumstances that Miller might have been the stabbing suspect and that Gonzalez jumped the fence to assist a fellow officer who might have been being attacked. Stange argued that Miller's claim against him was factually unreasonable and legally insufficient because he was not in a position to intervene and he could not have anticipated nor prevented Gonzalez from injuring Miller. Finally, both defendants argued that they were entitled to qualified immunity because they did not violate a constitutional right.

The district court granted summary judgment to both officers. The court agreed that Stange “did not have time to do anything” to prevent the blow, and rejected as too “far fetched” the theory that Gonzalez could jump the fence and land in a darkened, overgrown yard with enough precision to intentionally strike Miller's jaw. (R. 62, p. 8, 9). For that reason, the court concluded that Miller had not shown any evidence of “intentional use of force that could be deemed excessive.” Id. at 8. Because it found that the officers had not violated Miller's Fourth Amendment rights, the court did not reach the issue of qualified immunity.

After the district court entered judgment, Miller moved for relief under Federal Rule of Civil Procedure 60(b), based on a newly discovered written statement of the stabbing victim. In the statement, the victim reports that his assailant “appeared to be” a white male. Miller argued that this evidence undercuts the grant of summary judgment because he is a light-skinned African American thereby vitiating the reasonableness of Gonzalez's suspicion that he had committed a serious crime. Miller also pointed out that the police reports made no mention of a red vehicle. The court denied the motion, stating that the evidence...