Titran v. Ackman

• Decision Date: 11 January 1990
• Docket Number: No. 89-1160,89-1160
• Citation: 893 F.2d 145
• Parties: Michele TITRAN, Plaintiff-Appellant, v. Elesebeath ACKMAN, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 145

893 F.2d 145

Michele TITRAN, Plaintiff-Appellant, v. Elesebeath ACKMAN, et al., Defendants-Appellees.

No. 89-1160.

United States Court of Appeals Seventh Circuit.

Argued Dec. 8, 1989.

Decided Jan. 11, 1990.

Peter K. Woody (argued), Michael H. Vonnahmen, Springfield, Ill., for plaintiff-appellant.

Karen L. Kendall, Heyl, Royster, Voelker & Allen, Peoria, Ill., Patrick J. Londrigan (argued), Heyl, Royster, Voelker & Allen, Gary S. Rapaport (argued), James K. Zerkle, Feldman & Wasser, Springfield, Ill., for defendants-appellees.

Before POSNER and EASTERBROOK, Circuit Judges, and DUMBAULD, Senior District Judge. ^*

EASTERBROOK, Circuit Judge.

Michele Titran has two liquor problems. One she shares with many other people is drinking to excess. The second, less common, is that she repeatedly drinks in public although she is a minor and is not entitled to buy (or receive) alcoholic beverages. The police have picked up Titran many times. On March 25, 1987, officer Barbara Klemm found Titran imbibing at Baur's Opera House, a bar in Springfield, Illinois. Klemm arrested Titran, who was 19 at the time. Other police booked Titran at the Sangamon County Jail for both illegal consumption of alcohol (a misdemeanor) and obstructing justice (a felony). She was familiar with the procedure, having been booked before. Officers asked her to dress in an orange jumpsuit, which designates those being held on felony charges. Titran refused--whether because she wanted the blue jumpsuit used for misdemeanor prisoners or because she was just being ornery the record does not tell us.

Police at the lockup, with Klemm's aid, took off Titran's clothing and stuffed her into an orange jumpsuit. Titran says that the officers wrestled her to the ground and broke her wrist, and that they also disabled her with a device that delivers a high-voltage shock (an XR 5000 "cattle prod") and temporarily prevents physical coordination; she says that this bruised her body and her ego. The officers say that Titran injured herself while in her cell, that her wrist was sprained rather than broken, and that the use of force was reasonable in relation to her conduct. Titran concedes that she did not attempt rational conversation:

Q. Did you discuss this with anyone in the C block?

A. No, I was screaming.

Q. What were you screaming?

A. I was screaming in pain. I was screaming in agony. I was, I was screaming that I didn't belong there, and that they didn't have a right to have me there. I was screaming.

Whether Titran was doing more is disputed. All four officers say that she was flailing, kicking, scratching, and biting. Titran's testimony during her deposition gives a different picture:

Q. Did you resist any of the police officers when they attempted to process you at the Sangamon County jail?

A. When they attempted to change me into a felony uniform, I protected myself, which was a fruitless attempt, because there were four of them. I didn't do damage to anyone, no.

Q. When you say when they attempted to put you in a felony uniform, did you become combative?

A. Sir, I was scared to death.

Q. Did you strike anyone?

A. No, sir, I don't believe in physical violence.

Defendants moved for summary judgment, arguing that their conduct was reasonable under the due process standard of Gumz v. Morrissette, 772 F.2d 1395 (7th Cir.1985). They also argued that if Fourth rather than Fifth Amendment standards apply, Titran did not establish the mental element they deemed necessary in a Fourth Amendment case, and that they are entitled to qualified immunity. Titran replied that the Fourth Amendment approach should apply because the scuffle occurred before the cell door slammed shut and therefore was part of the process of arrest, and that the reasonableness of the officers' conduct under the Fourth Amendment is a triable issue.

The district judge agreed with Titran that the Fourth Amendment applies, see Graham v. Connor, --- U.S. ----, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Lester v. City of Chicago, 830 F.2d 706 (7th Cir.1987). This Amendment poses the question "whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Graham, 109 S.Ct. at 1872. Although the conclusion that the Fourth Amendment applies, and that its standard is objective, logically disposed of the questions presented by the parties--for the right to be free of excessive force during an arrest has long been established, making immunity unavailable if the officers indeed applied too much--the court nonetheless granted summary judgment for the defendants. It explained (citation and footnote omitted):

[Titran] ... was admittedly combative and uncooperative. Furthermore, the depositions and supporting documents submitted by Defendants establish that [Titran] was screaming, kicking, scratching, swinging at, and attempting to bite Defendants as they attempted to place Plaintiff in the jail uniform. The use of force sufficient to sprain [Titran's] wrist and the use of an electric shocking device were not unreasonable given the totality of the circumstances. Were conduct such as [Titran's] to go unchecked, an incident such as this could escalate into an altercation where several of the Defendants, as well as Plaintiff herself, could have been seriously injured. Defendants' use of force in the case at bar was an objectively reasonable response to the situation.

This disposition depends on adopting defendants' view of both the provocation (that Titran was kicking, scratching, and biting) and the consequence (that Titran sprained her wrist) over Titran's contrary contentions (that she was screaming but not kicking, and that she suffered injuries in addition to the damage to her wrist). Courts may not resolve disputed questions of material fact in order to grant summary judgment. The district judge took defendants' version of events; Rule 56 requires the court to take the facts and reasonable inferences in the light favorable to the party opposing the motion.

If the dispute were not material, the tilt in defendants' favor would not matter. Klemm, alone among the defendants, argues that the court should not have used the Fourth Amendment's objective reasonableness approach. After Graham, 109 S.Ct. at 1871 n. 10; Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986); Bell v. Wolfish, 441 U.S. 520, 535-39, 99 S.Ct. 1861, 1871-74, 60 L.Ed.2d 447 (1979); and Wilkins v. May, 872 F.2d 190 (7th Cir.1989), three different parts of the Bill of Rights apply in sequence during arrest and confinement. Force during arrest must be reasonable within the meaning of the Fourth Amendment; between arrest and conviction the government may not "punish" the suspect without due process of law; after conviction the government may not inflict cruel and unusual punishment. Klemm submits that Titran had moved from arrest (governed by the Fourth Amendment) to pretrial detention (governed by the Fifth), and that unless force during pretrial detention not only "shocks the conscience" but also inflicts "severe injury"--two elements that appear in Gumz--the officials may not be held to account.

We may assume that although Titran had not been placed in a cell by the time of the events in question, her presence in the jail and the completion of the booking marked the line between "arrest" and "detention". It does not follow that officers acquired greater ability to assault and batter Titran. Gumz defines elements of "substantive due process", and our circuit has been chipping away at that case since the date it was decided by a divided panel. Lester overruled Gumz for the most part (a decision subsequently...