Patrick Dockery v. Sherrie Blackburn ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1881
PATRICK RYAN DOCKERY,
Plaintiff-Appellee,
v.
SHERRIE BLACKBURN and TERRY HIGGINS,
Defendants-Appellants.
____________________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 13 C 4878 — Jeffrey T. Gilbert, Magistrate Judge.
____________________
ARGUED JANUARY 3, 2018 — DECIDED DECEMBER 19, 2018
____________________
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 charg-
∗ Of the Southern District of Illinois, sitting by designation.
2 No. 17-1881
es 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 (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 (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
No. 17-1881 3
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 (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 com-
plex. 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.
4 No. 17-1881
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.
No. 17-1881 5
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 ma-
chine. 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
6 No. 17-1881
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 contin-
ued 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
No. 17-1881 7
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 second time and briefly applied the Taser
to his upper back. The parties dispute whether the Taser
actually made contact with Dockery, but we assume that it
did. Dockery rolled away from Blackburn. She then ap-
proached again and directly applied the Taser to Dockery a
third time, leaning into him so that he would lie face down
on the ground. Blackburn and Higgins held him on the
ground as two other officers ran into the room to assist. The
four officers then managed to handcuff Dockery. The entire
episode—from the first Taser deployment until the hand-
cuffing—lasted under one minute.
Dockery maintains that he was not intentionally resisting
the officers’ efforts to handcuff him. He says he lost his
balance because he is overweight and inflexible, and he fell
over from the pain of being forced into a single pair of
handcuffs. For support he presented photographs of wrist
lacerations from the handcuffs, and he notes that Sergeant
8 No. 17-1881
Blackburn and Officer Higgins used two linked pairs of
handcuffs when they first arrested him. Finally, he insists
that his actions after the first Taser deployment were invol-
untary reactions to the shock, not intentional acts of re-
sistance. Again, this factual dispute is immaterial. Excessive-
force claims are evaluated against a standard of objective
reasonableness. Whether Dockery actually intended to resist
does not matter. What matters is how a reasonable officer
would construe the circumstances.
Another dispute centers on how the different Taser
modes affect the human body. The parties agree that one of
the probes was damaged or removed after the initial shock.
So only the three-point or drive-stun options remained
available to Sergeant Blackburn, and both required direct
contact with Dockery’s body. The officers maintain that she
used drive-stun mode for pain compliance. Dockery con-
tends that she used the three-point mode, causing neuro-
muscular incapacitation. A review of the record, including
the Taser summary report, does not conclusively establish
which mode was used. We therefore assume at this stage
that Dockery’s assertion is correct.
Dockery was charged with trespass, criminal damage to
property, and obstruction. He was convicted of trespass and
sentenced to 180 days in jail. Nearly two years after the
incident, Dockery filed this suit under § 1983 and state law
against Sergeant Blackburn, Officer Higgins, the City of
Joliet, the Joliet Police Department, and additional named
and unnamed Joliet officers. He asserted four claims: (1) use
of excessive force in violation of the Fourth Amendment;
(2) malicious prosecution; (3) denial of medical care; and
(4) inadequate training in the use and deployment of a Taser.
No. 17-1881 9
A magistrate judge, presiding by consent, recruited pro bono
counsel for Dockery, and the defendants moved for sum-
mary judgment.
The magistrate judge entered judgment for the defend-
ants on most claims, but he allowed the excessive-force claim
against Sergeant Blackburn and Officer Higgins to go for-
ward. As relevant here, the judge denied the officers’ claim
of qualified immunity.
II. Discussion
Excessive-force claims are governed by the Fourth
Amendment’s “reasonableness” standard, which turns on
the totality of the circumstances confronting Sergeant
Blackburn and Officer Higgins viewed from the perspective
“of a reasonable officer on the scene, rather than with the
20/20 vision of hindsight,” and allowing for the fact that
“police officers are often forced to make split-second judg-
ments—in circumstances that are tense, uncertain, and
rapidly evolving—about the amount of force that is neces-
sary in a particular situation.” Graham, 490 U.S. at 396–97.
The Supreme Court has instructed us to weigh the nature
and extent of the force used against the severity of the
suspect’s crime, the nature and immediacy of the threat he
posed to the officers or others, and the extent to which the
suspect actively resisted or attempted to evade arrest. Id. at
396. Whether a particular use of force was objectively rea-
sonable “is a legal determination rather than a pure question
of fact for the jury to decide.” Phillips v. Cmty. Ins. Corp.,
678 F.3d 513, 520 (7th Cir. 2012). A threshold question,
however, concerns appellate jurisdiction.
10 No. 17-1881
A. Appellate Jurisdiction
An order denying summary judgment ordinarily is not
an appealable “final decision” under 28 U.S.C. § 1291, but an
exception exists for an order denying a claim of qualified
immunity. See Plumhoff v. Rickard, 572 U.S. 765, 771 (2014).
Qualified immunity is “immunity from suit rather than a
mere defense to liability,” so pretrial orders denying quali-
fied immunity are generally reviewable under the collateral-
order doctrine. Id. at 771–72 (quotation marks omitted).
But interlocutory review of a denial of qualified immuni-
ty is limited to pure questions of law. As the Supreme Court
explained in Johnson v. Jones, “a defendant[] entitled to
invoke a qualified immunity defense[] may not appeal a
district court’s summary judgment order insofar as that
order determines whether or not the pretrial record sets
forth a ‘genuine’ issue of fact for trial.” 515 U.S. at 309, 319–
20.
At issue in Johnson was whether five police officers used
excessive force during an arrest that left the plaintiff hospi-
talized with broken ribs. Id. at 307. Three officers moved for
summary judgment on qualified-immunity grounds, assert-
ing that they did not participate in the beating. Id. at 307–08.
The district court denied the motion, reasoning that the
plaintiff raised a genuine factual issue about whether the
officers had participated in the beating. Id. On appeal the
officers asserted that the district court’s adoption of the
plaintiff’s story was not supported by the record. The
Supreme Court held that the interlocutory order—which
“determine[d] only a question of ‘evidence sufficiency,’ i.e.,
which facts a party may, or may not, be able to prove at
trial”—was not immediately appealable. Id. at 313.
No. 17-1881 11
Two post-Johnson cases clarify the distinction between
nonreviewable qualified-immunity orders based on eviden-
tiary sufficiency and reviewable qualified-immunity orders
based on “more abstract issues of law.” Id. at 317. First, in
Scott v. Harris, the Court considered a claim that a police
officer used excessive force when he rammed the plaintiff’s
car during a high-speed chase captured on video. 550 U.S. at
375. At summary judgment the district court rejected the
officer’s claim of qualified immunity, finding a genuine
factual dispute about the degree of danger posed by the
plaintiff’s reckless driving. Id. at 376. The Eleventh Circuit
affirmed. Id.
The Supreme Court reversed, ruling that the plaintiff’s
story was “utterly discredited” by the videotape. Id. at 380.
The Court observed that although “there is no obvious way
to quantify the risks on either side, it is clear from the vide-
otape that [the plaintiff] posed an actual and imminent
threat to the lives of [others].” Id. at 383–84. Because the
reasonableness of the officer’s actions is ultimately a legal
question and the video conclusively established that the car
chase “posed a substantial and immediate risk of serious
physical injury to others,” the Court held that the officer was
entitled to summary judgment. Id. at 386. In other words,
Johnson did not preclude immediate appellate review; the
Court determined that it could rule as a matter of law on the
question of objective reasonableness in light of the historical
facts captured on video.
Plumhoff v. Rickard involved another excessive-force claim
arising out of a high-speed police chase that was captured on
video. The chase ended after officers shot at the fleeing car,
causing it to crash. 572 U.S. at 770. The district court denied
12 No. 17-1881
the officers’ motion for summary judgment based on quali-
fied immunity, finding a genuine factual dispute about the
degree of danger posed by the suspect’s high-speed flight.
Id. The Sixth Circuit affirmed. Id. The Supreme Court re-
versed, explaining that Johnson did not defeat appellate
jurisdiction:
The District Court order in this case is nothing
like the order in Johnson. Petitioners do not
claim that other officers were responsible for
shooting [the plaintiff]; rather, they contend
that their conduct did not violate the Fourth
Amendment and, in any event, did not violate
clearly established law. Thus, they raise legal
issues … .
Id. at 793. The Court went on to apply the objective-
reasonableness standard to the facts as depicted on the
video, holding that the officers’ response to the car chase
was reasonable under the circumstances. Id. at 775–81.
Alternatively, the Court held that the officers were entitled
to qualified immunity. Id. at 781.
On the jurisdictional point at least, Dockery’s case is ma-
terially indistinguishable from Scott and Plumhoff. The
constitutional question—whether the deployment of the
Taser was a reasonable use of force under the circumstanc-
es—is an objective inquiry that turns on how a reasonable
officer would have perceived the circumstances. See Phillips,
678 F.3d at 520. In light of the video recording, which cap-
tured the entire episode, this appeal raises a pure legal
question about the officers’ entitlement to qualified immuni-
ty.
No. 17-1881 13
Dockery responds that the video is subject to multiple
interpretations, one of which supports his contention that he
did not intend to resist the officers but simply fell because he
is overweight and inflexible, and his arms had been painful-
ly wrenched behind his back. He also maintains that he
made “no move to stand, no move to strike the officers, and
no threats.” As we’ve explained, his intent to resist is imma-
terial under the objective test; we ask only how a reasonable
officer would have perceived the circumstances. And
Dockery’s claim that he made no aggressive moves toward
the officers after the first Taser shock and did not try to
stand up is “utterly discredited” by the video, Scott, 550 U.S.
at 380, which clearly depicts his physical resistance to the
officers’ attempts to handcuff him both before and after the
first Taser shock. Johnson does not preclude review.
B. Qualified Immunity
A public official is entitled to qualified immunity from
suit unless he violated a clearly established constitutional
right. Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). As applied
to a Fourth Amendment excessive-force claim, the qualified-
immunity doctrine gives “enhanced deference to officers’
on-scene judgments about the level of necessary force.”
Abbott v. Sangamon County, 705 F.3d 706, 725 (7th Cir. 2013).
Qualified-immunity analysis usually entails a two-step
inquiry: we ask (1) whether the facts alleged or shown by the
plaintiff establish a violation of a constitutional right, and
(2) if so, whether that right was clearly established at the
time of the defendant’s alleged misconduct. Pearson v.
Callahan, 555 U.S. 223, 232 (2009). This order of inquiry is not
rigid, however; we may address the second question first if
it simplifies the analysis. Id. at 227; Abbott, 705 F.3d at 715.
14 No. 17-1881
To show that a right is clearly established, the plaintiff
must demonstrate that existing caselaw at the time of the
events in question “placed the statutory or constitutional
question beyond debate.” Al-Kidd, 563 U.S. at 741. Qualified
immunity cannot be defeated simply by “alleging [a] viola-
tion of extremely abstract rights.” White v. Pauly, 137 S. Ct.
548, 552 (2017). The Supreme Court has cautioned us not to
define the constitutional right in question at a “high level of
generality.” Id. (quotation marks omitted). Instead, to place
the constitutional question beyond debate, the precedent
must be “particularized to the facts of the case.” Id. (quota-
tion marks omitted). A plaintiff may also overcome an
officer’s qualified immunity by showing that the conduct in
question is “so egregious and unreasonable that, notwith-
standing the lack of an analogous decision, no reasonable
officer could have thought he was acting lawfully.” Abbott,
705 F.3d at 723–24.
We have two guideposts in an excessive-force case like
this one. The first is that an officer’s use of a Taser against an
actively resisting subject either does not violate a clearly
established right or is constitutionally reasonable. Id. Exam-
ples of active resistance include “kicking and flailing,”
Clarett v. Roberts, 657 F.3d 664, 674–75 (7th Cir. 2011); declin-
ing to follow instructions while acting in a belligerent man-
ner, Forrest v. Prine, 620 F.3d 739, 745–46 (7th Cir. 2010); and
swatting an arresting officer’s hands away while backpedal-
ing, Brooks v. City of Aurora, 653 F.3d 478, 481 (7th Cir. 2011).
The second guidepost is that an officer may not use sig-
nificant force (like a Taser) against a “nonresisting or pas-
sively resisting” subject. Abbott, 705 F.3d at 732. For example,
we have rejected a claim of qualified immunity where
No. 17-1881 15
officers used force against a “docile and cooperative” sus-
pect who posed no threat and “did not resist arrest in any
way.” Morfin v. City of East Chicago, 349 F.3d 989, 1005 (7th
Cir. 2003). In another case falling on the extreme side of this
line, we have held that “[t]he Constitution clearly does not
allow police officers to force a handcuffed, passive suspect
into a squad car by breaking his ribs.” Rambo v. Daley, 68
F.3d 203, 207 (7th Cir. 1995).
In some cases each discrete use of force must be separate-
ly justified. See Deering v. Reich, 183 F.3d 645, 652 (7th Cir.
1999) (“[W]e carve up the incident into segments and judge
each on its own terms to see if the officer was reasonable at
each stage.”). We think a sequential analysis is appropriate
here and therefore divide our discussion between the first
use of the Taser and the subsequent deployments when
Dockery was on the ground. 1
1. First Taser Deployment
Dockery maintains that he was not actively resisting
when Sergeant Blackburn first used the Taser. That claim
cannot be reconciled with the facts captured on video, as
Dockery’s counsel essentially conceded at oral argument.
The video shows that Dockery was uncooperative and
physically aggressive when the officers tried to handcuff
him, rocking back and forth and twice escaping their grasp.
1 For the first time on appeal, Officer Higgins asserts that he is inde-
pendently entitled to summary judgment because he never used the
Taser. He argues that Dockery should have asserted a failure-to-
intervene claim against him rather than an excessive-force claim. Because
we hold that qualified immunity shields both officers from suit for use of
excessive force, we do not address this argument.
16 No. 17-1881
When he fell backward, he wildly kicked in their direction
and immediately jumped to his feet. Under these circum-
stances we have no difficulty concluding that the first use of
the Taser is protected by qualified immunity. Clarett,
657 F.3d at 674–75.
2. Subsequent Taser Deployments
Dockery argues that after the first Taser shock, he “was
on the floor of the booking room, either sitting calmly or
curling and rolling as a result of Taser-induced involuntary
muscle contractions.” He compares his case to Abbott v.
Sangamon County and Cyrus v. Town of Mukwonago, 624 F.3d
856 (7th Cir. 2010), but neither case supports his claim.
Take Abbott first. There an officer fired his Taser in probe
mode at a woman who angrily approached him and ignored
his order to stop. 705 F.3d at 729. According to the plaintiff—
a nonviolent misdemeanant—there was “no question” that
this first Taser jolt subdued her: “[S]he immediately fell to
the ground and convulsed but made no movement.” Id. at
732. The officer then used the Taser again when the plaintiff
failed to obey the officer’s instruction to turn over. We held
that a jury could find that the second Taser deployment
constituted excessive force because the suspect was already
subdued and the officers had time to appreciate that fact. Id.
Dockery maintains that his case is materially similar be-
cause he did not respond to the officers’ orders while sitting
immobile on the ground for 18 seconds. He adds that
Sergeant Blackburn and Officer Higgins had time to recog-
nize that he was subdued by the first shock. Again, this
account is flatly contradicted by the video. Unlike the plain-
tiff in Abbott, Dockery did not react to the first Taser shock as
No. 17-1881 17
if he were stunned or incapacitated. Within two seconds of
falling, he flipped over and kicked his left foot in Higgins’s
direction. He then sat up, pulled the Taser prong out of his
arm, and ignored the officers’ instructions to lie down. In
short, his combative demeanor never changed, and he did
nothing to manifest submission to being handcuffed.
Cyrus is likewise not closely analogous. There a resisting
suspect “barrel-rolled” down a driveway after an initial
Taser shock. 624 F.3d at 859. He had stopped moving and
was lying still on his stomach with his hands underneath
him when the officers approached and deployed the Taser
again several times. Id. at 860. The district court entered
summary judgment for the officer, concluding that the use of
the Taser after the barrel-roll was objectively reasonable. Id.
at 861. We reversed based on conflicting evidence in the
summary-judgment record about how many times the Taser
was discharged, whether the barrel-roll could be interpreted
as an attempt to flee, and whether the suspect posed a risk to
the officers while lying face down. Id. at 862–63.
Here there is no similar evidentiary conflict. The video
unequivocally shows that Dockery did not submit to the
officers’ authority after the first Taser shock. Instead he sat
up, pulled out one of the prongs, pointed an arm in Sergeant
Blackburn’s direction, attempted to stand up, and otherwise
ignored the officers’ commands to get on the ground. Cyrus
does not help him.
This case more closely tracks Brooks v. City of Aurora,
which involved an excessive-force claim by a suspect who
backpedaled and swatted at a police officer who was at-
tempting to arrest him. The suspect then stood still and
“passively” faced the officers for a few seconds but did not
18 No. 17-1881
manifest submission, so the officer pepper sprayed him.
653 F.3d at 487. We concluded that the officer was entitled to
qualified immunity because the plaintiff “ha[d] not submit-
ted to the officer’s authority, ha[d] not been taken into
custody[,] and still arguably could [have] pose[d] a threat of
flight or further resistance.” Id. A similar conclusion flows
from the video evidence here, which unambiguously shows
that Dockery had not submitted to the officers’ authority and
was far from subdued when Sergeant Blackburn applied the
Taser three more times.
Lacking closely analogous precedent, Dockery argues in
the alternative that this use of force was “so egregious and
unreasonable” that no officer could believe that he was
acting lawfully. Abbott, 705 F.3d at 723–24. To prevail on this
backup argument, Dockery must place the unreasonableness
of Sergeant Blackburn’s and Officer Higgins’s actions “be-
yond debate.” Al-Kidd, 563 U.S. at 741. He has not done so.
Even if the officers misconstrued his actions or misjudged
the amount of force needed to subdue him, qualified im-
munity protects officers from mistakes in judgment of this
sort.
III. Conclusion
For the foregoing reasons, Sergeant Blackburn and
Officer Higgins are entitled to qualified immunity. We
REVERSE the judgment of the district court and REMAND with
instructions to enter judgment in favor of the defendants.