Phillips v. Cmty. Ins. Corp.

• Decision Date: 05 June 2012
• Docket Number: No. 10–1654.,10–1654.
• Citation: 678 F.3d 513
• Parties: Tamara PHILLIPS, Plaintiff–Appellant, v. COMMUNITY INSURANCE CORPORATION, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

678 F.3d 513

Tamara PHILLIPS, Plaintiff–Appellant,

v.COMMUNITY INSURANCE CORPORATION, et al., Defendants–Appellees.

No. 10–1654.

United States Court of Appeals,

Seventh Circuit.

Argued Oct. 25, 2010.

Decided April 27, 2012.

Rehearing and Rehearing En Banc Denied June 5, 2012.

Mark P. Murphy (argued), Attorney, Milwaukee, WI, for Plaintiff–Appellant.

Barbara J. Zabawa (argued), Attorney, Whyte, Hirschboeck & Dudek S.C., Madison, WI, for Defendants–Appellees.

Before WOOD, WILLIAMS, and TINDER, Circuit Judges.

WILLIAMS, Circuit Judge.

Tamara Phillips contends that police officers used excessive force in arresting her when they shot her four times in the leg with an SL6 baton launcher after she disregarded their orders to come out of her car. Phillips's case was tried to a jury, which returned a verdict in the officers' favor. Phillips appeals, contending that the district court erroneously denied her post-verdict motion for judgment as a matter of law. Because we find that the officers used excessive force and are not entitled to qualified immunity, we reverse.

I. BACKGROUND

The facts in this case are largely undisputed. Around 7:00 p.m. on November 11, 2005, Lieutenant Russell Jack and Officer James Hoffman from the Waukesha Police Department received a dispatch reporting a possibly intoxicated driver. The original caller described a black car that was “all over the road.” After running the car's plates, police dispatch initially informed officers that the plates “hit” to a black Nissan Maxima that had been reported stolen.

Shortly afterward, a responding officer, Brandon Pierce, pulled up the stolen vehicle record from his squad car and called in to note that the “hit” was to a car with the same license plate number but a different color, make, and model—a silver Honda Civic. The police dispatcher noted the discrepancy, stating that the original caller had specified that the drunk driver was in a black Nissan Maxima. Lieutenant Jack asked the dispatcher to contact the original caller to verify the car's color and make. Though the caller could not be reached, the dispatcher checked the vehicle record again and alerted officers that, “the listed owner on the Nissan Maxima is the complainant for the vehicle theft on the Honda Civic, silver in color with that plate assigned. So I am unsure why that plate is reassigned to the Nissan Maxima.” Both cars were registered to the same person: Tamara Phillips. Officer Hoffman later testified that there was confusion surrounding the car, the license plates it bore, and the fact that the plates “hit” to a different vehicle.¹

Within several minutes of receiving the dispatch, the officers located the black Nissan Maxima, with its door ajar, on a sidewalk near an apartment complex. The driver had backed the car into a hedgerow. Behind the hedgerow, there was an electrical box and a five-foot drop-off into a neighboring parking lot. It is unclear whether the car was still running, but the officers testified that they believed it was because its lights were on.

Officer Hoffman stated that the incident was treated as a “high-risk traffic stop” because the car was believed to be stolen, had stopped in a residential area, and was pointed toward the street in the direction of the officers. During a high-risk traffic stop, instead of walking up to a car and exposing themselves to potential danger, the officers will order the driver to shut off the car, put the keys outside, step out, and walk to a safe location where the person can be placed in custody.

With the help of several other officers who had since arrived at the scene, seven squad cars were strategically placed around the Nissan Maxima. Once the squad cars were in place, Lieutenant Jack radioed the dispatch and said, “We have the person secured here, not in handcuffs, but stabilized in the car.” Officer Hoffman pointed his squad car's headlights and spotlight toward the vehicle to illuminate its interior. He saw one person inside—a female driver who, at least initially, was moving about inside the car.

The officers, who were equipped with body shields for protection, identified themselves as police and loudly commanded the driver to show her hands and get out of the car. The driver did not comply, but instead reached for a compartment in the vehicle and lit a cigarette. At one point, the driver put both of her feet out of the driver-side window onto the door, resting them near the side-view mirror, while she leaned back toward the center console. She also picked up a water bottle and set it on the ground beside the car.

The officers estimated that they gave orders to the driver continuously for ten minutes before deciding to use their SL6. The SL6 Baton Launcher is a shoulder-fired, semi-automatic firearm that fires polyurethane bullets with a force equivalent to a .44 magnum pistol. Its use has been deemed “less lethal” by the Waukesha Police Department's use of force policy, and is considered tantamount to using a bean-bag shotgun or a hand baton. The “target area” for an SL6 is below a person's belly button, excluding the groin. The officers testified that the SL6 is designed to be used against persons exhibiting resistive, assaultive, or other dangerous behavior.

Officer Hoffman was 40 to 50 feet away from Phillips's car when he fired a warning shot, which hit the vehicle with a loud bang and left a baseball-sized dent on the driver-side door. The officers then waited five minutes while they issued commands ordering the driver to get out of the car. At this point, the driver was lying on the front seat toward the center console with her bare legs outside the front driver-side door of the car and her feet on the ground.

When the driver did not comply, the officers aimed at her leg and fired. A few seconds later, the driver yelled out in pain and reached down to her legs, but she did not pull them back into the car or otherwise attempt to protect herself. Another fifteen seconds passed and the officers fired again. The driver did not move. The officers waited another three seconds and shot again. The driver again did not move. After another three seconds, the officers fired again, hitting her a fourth time. This time, the driver complied by “slumping” out of the car and kneeling on the ground. Lieutenant Jack then ordered the driver to stand back up and walk backwards toward him or she would be shot again. The driver did as she was told and the officers arrested her.

Plaintiff–Appellant Tamara Phillips, who turned out to be the very drunk driver—yet lawful owner of the car, sustained two injuries on the inside of her lower right leg in the ankle area and two other injuries to her upper left leg. The most serious injury was to her right ankle, where one of the bullets left a six-inch wound requiring thirty stitches because the flesh was torn from the bone. Phillips, who works as a personal trainer, was unable to walk for a week, and walked with a cane for approximately three weeks.

On September 5, 2006, Phillips sued, claiming that the officers had used excessive force in arresting her. The case was tried twice. The first trial ended in a deadlocked jury and the court declared a mistrial. The second trial resulted in a verdict for the officers. After the verdict, Phillips moved for judgment as a matter of law, or, in the alternative, for a new trial. The court denied the motion. This appeal followed.²

II. ANALYSIS

We review a district court's denial of a motion for judgment as a matter of law de novo, asking whether the evidence presented, combined with all reasonable inferences permissibly drawn from it, is sufficient to support the verdict when viewed in the light most favorable to the party winning the verdict. Artis v. Hitachi Zosen Clearing, Inc., 967 F.2d 1132, 1139 (7th Cir.1992). For Phillips to be entitled to judgment as a matter of law, the officers must have used excessive force in arresting Phillips in violation of her Fourth Amendment right to be free from unreasonable searches and seizures. See McAllister v. Price, 615 F.3d 877, 884 (7th Cir.2010). Furthermore, for Phillips to prevail, the officers must not be entitled to qualified immunity for their conduct.³See Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009).

A. Constitutional Violation

The nature and extent of force that may reasonably be used to effectuate an arrest depends on the specific circumstances of the arrest, including “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). “Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of ‘the nature and quality of the intrusion on the individual's Fourth Amendment interests' against the countervailing governmental interests at stake.” Id. (quoting United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983)). An officer's use of force is unreasonable if, judging from the totality of the circumstances at the time of the arrest, the officer uses greater force than was reasonably necessary to effectuate the arrest. Gonzalez v. City of Elgin, 578 F.3d 526, 539 (7th Cir.2009). We must also bear in mind when considering the totality of the circumstances that “police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 397, 109 S.Ct. 1865. This constitutional inquiry is objective and does not take into account the motives or intent of the individual officers. Id.

Objective reasonableness of force is a legal determination rather than a pure question of fact for the jury to decide....