Shanika Day v. Franklin Wooten ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1930
SHANIKA DAY, et al.,
Plaintiffs-Appellees,
v.
FRANKLIN WOOTEN, et al.,
Defendants-Appellants.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:17-cv-04612 — Tanya Walton Pratt, Judge.
____________________
ARGUED NOVEMBER 6, 2019 — DECIDED JANUARY 10, 2020
____________________
Before EASTERBROOK, MANION, and BARRETT, Circuit
Judges.
MANION, Circuit Judge. Terrell Day died tragically while in
police custody on September 26, 2015. This occurred while his
hands were cuffed behind his back after he had winded him-
self during a chase following an apparent shoplifting. The au-
topsy report concluded his cause of death was a lack of oxy-
gen in his blood, caused in part by his obesity, an underlying
heart condition, and restricted breathing due to having his
2 No. 19-1930
hands cuffed behind his back. In this § 1983 excessive force
action brought against the arresting officers, the district court
concluded the officers were not entitled to qualified immunity
because “reasonable officers would know they were violating
an established right by leaving Day’s hands cuffed behind his
back after he complained of difficulty breathing.” For the rea-
sons set forth below, we disagree with the district court’s con-
clusion of law and accordingly reverse.
I. Background
A. Assumed Facts
Before relating the facts, we first address which facts we
must accept or assume for purposes of this interlocutory ap-
peal of the denial of qualified immunity. The plaintiffs argue
we must accept both “the ‘facts that the district court assumed
when it denied summary judgment,’ and … ‘the plaintiff’s
version of the facts.’” This misstates the standard established
by our case law. We are instead presented with a choice be-
tween “[s]everal sources of undisputed facts [that] may frame
our review” of the purely legal question presented by a denial
of qualified immunity. White v. Gerardot, 509 F.3d 829, 833 (7th
Cir. 2007). We may “take, as given, the facts that the district
court assumed when it denied summary judgment.” Id. (quot-
ing Washington v. Haupert, 481 F.3d 543, 549 n.2 (7th Cir.
2007)). Alternatively, “we may conduct our review by ‘accept-
ing the plaintiff’s version of the facts.’” Id.; see also Jewett v. An-
ders, 521 F.3d 818, 819 (7th Cir. 2008). And finally, whether we
accept the district court’s assumed facts or the plaintiff’s ver-
sion of the facts, we may also look to undisputed evidence in
the record even if the district court did not consider it. White,
509 F.3d at 833 n.5; see also Thompson v. Cope, 900 F.3d 414, 419
(7th Cir. 2018).
No. 19-1930 3
Although we are free to choose either the district court’s
assumed facts or the plaintiff’s version, it is most often appro-
priate to accept the facts assumed by the district court in its
denial of summary judgment. Haupert, 481 F.3d at 549 n.2. Ac-
cordingly, we accept the district court’s statement of facts. See
Day v. City of Indianapolis, 380 F. Supp. 3d 812, 817–21 (S.D.
Ind. 2019). In a few instances, which we note, we look to un-
disputed evidence not included in the district court’s order
but provided elsewhere in the record.
Terrell Day was eighteen years old and weighed approxi-
mately 312 pounds1 at the time of his death, with a history of
obesity and an underlying heart condition. On September 26,
2015, Day was confronted by a loss-prevention officer outside
the Burlington Coat Factory at Washington Square Mall in In-
dianapolis after Day apparently shoplifted a watch from the
store. Day returned the watch but refused to return to the
store with the loss-prevention officer. A mall security officer
who joined the confrontation noticed Day had a gun in his
pocket. There are varying accounts of what occurred next, but
it is undisputed that a chase ensued in which Day ran out of
the mall, through the parking lot, and across a street to a gas
station. He there collapsed on a grassy slope. Law enforce-
ment soon arrived in response to a radio call describing an
armed shoplifter. At this point, the gun was no longer on
Day’s person, but was lying in the grass a few feet away and
out of his reach.
Officer Denny, the second officer to arrive on scene, hand-
cuffed Day behind his back with a single set of handcuffs. He
1 Day’s approximate weight was recorded in the autopsy report. (Ap-
pellant’s Separate Appendix (“S.A.”) at 811.)
4 No. 19-1930
testified that Day’s hands came together easily behind his
back. He noticed Day was overweight, sweating, and breath-
ing heavily. Day told the officers he was having trouble
breathing; Officer Denny told Day he had exerted himself by
running and instructed him to take deep breaths in and out to
slow his heart rate. Officer Denny otherwise did not observe
any signs of distress or of Day’s trouble breathing.
Officer Denny initially instructed Day to remain in an up-
right seated position, which he believed to be the most com-
fortable position for Day and ideal for the officers’ safety.
However, Day would not maintain this position, but instead
laid down and rolled down the slope. After two attempts to
keep Day seated upright, Officer Denny instead positioned
Day to lie on his side. Officer Denny believed this was the best
course of action to prevent Day from asphyxiating by rolling
onto his stomach. While repositioning Day, Officer Denny ob-
served Day had defecated on himself. He attributed this to
Day having over-exerted himself during the chase.
Sergeant Wooten arrived shortly after Officer Denny de-
tained Day. Sergeant Wooten monitored Day while Officer
Denny completed his investigative duties as the arresting of-
ficer. Sergeant Wooten and other officers repositioned Day
several times when he rolled onto his stomach. Day com-
plained to Sergeant Wooten that he could not breathe; how-
ever, Sergeant Wooten was skeptical of these complaints be-
cause Day also claimed to have done nothing wrong and was
asking to be released. All the same, Sergeant Wooten called
for an ambulance to evaluate Day approximately five minutes
after Day was initially detained. Sergeant Wooten observed
that Day appeared to calm down and began to breathe nor-
mally.
No. 19-1930 5
The ambulance arrived, and two paramedics examined
Day. In response to their questions, Day told the paramedics
he had no preexisting medical conditions. He was able to
speak to them in clear, full sentences. Their examination in-
volved multiple tests, including listening to Day’s breathing
and checking his heart rate, respiratory rate, and blood oxy-
gen saturation.2 Day’s hands remained cuffed behind his back
throughout the examination. The paramedics concluded Day
was breathing regularly and normally. Based on their exami-
nation, the paramedics believed Day did not need to go to a
hospital.
At that point, the paramedics asked Sergeant Wooten to
sign a release form so they could transfer custody of Day back
to law enforcement. Sergeant Wooten did so. The form he
signed was called a “Treatment/Transport Refusal,” and is
meant to be signed by a patient when he refuses to be trans-
ported to the hospital after being evaluated by paramedics.
However, when the paramedics determine a handcuffed pris-
oner does not need to be transported to the hospital, they have
an officer sign the form as a witness of the transfer, not as a
representative of the prisoner.
Officer Denny requested a “jail wagon” to transport Day
to a detention facility. When the jail wagon arrived, the driver
found Day unresponsive. At that point Day was lying on his
back on the asphalt with his hands still cuffed behind his back.
When the driver and Sergeant Wooten attempted to stand
Day up, his legs straightened and his knees locked. When Day
2 The record is unclear on the duration of this examination, but at ar-
gument counsel for the officers estimated it occurred over the course of
ten to fifteen minutes.
6 No. 19-1930
failed to respond either verbally or physically to two “ster-
num rubs” (a painful stimulus administered to an unrespon-
sive subject’s chest to invoke a reaction), the driver asked Ser-
geant Wooten to call a second ambulance.
The second ambulance arrived with a different team of
paramedics, approximately forty-three minutes after the first
ambulance had arrived.3 Sometime between the departure of
the first ambulance and the arrival of the second, a second pair
of handcuffs was added to Day’s wrists.4 When the paramed-
ics arrived, Day’s eyes were open, and he was breathing, but
his pulse was weak. Day was loaded into the back of the am-
bulance and the paramedics began to perform CPR. After at-
tempting without success to revive Day for 30 minutes, he
was pronounced dead. The coroner dispatched to the scene
examined Day’s body and found no visible signs of trauma.
However, the autopsy report listed his cause of death as “Sud-
den Cardiac Death due to Acute Ischemic Change.” Listed as
contributory causes were “Sustained respiratory compromise
3 The Coroner’s Report records that the first ambulance arrived at “ap-
proximately 1:09 PM” and the second ambulance arrived at “approxi-
mately 1:52 PM.” (S.A. at 824–25.) Assuming the estimation that the first
medical examination lasted approximately ten to fifteen minutes is accu-
rate, we can surmise that roughly thirty minutes passed between the de-
parture of the first ambulance and the arrival of the second. The exact
amount of lapsed time, however, is not important for our purposes.
4 Adding a second pair of handcuffs, by attaching one to each wrist
and connecting them in the middle, is a method used on larger arrestees
to make the arrestee more comfortable by lessening the restrictiveness of
the handcuffs. See, e.g., Estate of Phillips v. City of Milwaukee, 123 F.3d 586,
589 (7th Cir. 1997); Day, 380 F. Supp. 3d at 821.
No. 19-1930 7
due to hands cuffed behind the back, obesity, underlying car-
diomyopathy.”
Throughout his time in custody, Day never complained
the handcuffs were too tight. Day complained of trouble
breathing, but never indicated this was caused or exacerbated
by the handcuffs. The first team of paramedics never asked
the officers to remove or modify the handcuffs or add a sec-
ond pair. In addition to the coroner’s report that Day exhib-
ited no visible signs of trauma, the autopsy report states there
were no “encircling contusions” or lacerations around Day’s
wrists.5 The only indication that the handcuffs were causing a
respiratory issue was the autopsy report, which also identi-
fied for the first time his underlying heart condition.
B. District Court Proceedings
Day’s mother and father sued under § 1983 in September
2017, and the defendants moved for summary judgment. Of-
ficer Denny and Sergeant Wooten asserted qualified immun-
ity. After considering the summary judgment motion, the dis-
trict court held Officer Denny and Sergeant Wooten were not
entitled to qualified immunity. The court first determined it
could not hold as a matter of law the officers had not violated
Day’s Fourth Amendment right against unreasonable seizure.
Day, 380 F. Supp. 3d at 824–26. The court next concluded “rea-
sonable officers would know they were violating an estab-
lished right by leaving Day’s hands cuffed behind his back
after he complained of difficulty breathing.” Id. at 827.
In arriving at this conclusion, the district court cited an un-
reported district court case to establish that officers act
5 (S.A. at 811.)
8 No. 19-1930
unreasonably by failing to consider an injury or condition
when handcuffing an arrestee. Id. (citing Salyers v. Alexandria
Police Dep’t, 2016 WL 2894438, at *3 (S.D. Ind. May 18, 2016)).
The district court also quoted a decision of this court for the
proposition that using excessively tight handcuffs and yank-
ing the arms of non-resisting, non-dangerous arrestees sus-
pected of committing only minor crimes is clearly established
as unlawful. Id. (quoting Payne v. Pauley, 337 F.3d 767, 780 (7th
Cir. 2003)). Based on these cases, and the fact that Day com-
plained of difficulty breathing and the officers “observed
some signs of distress,” the court held the officers’ conduct
was clearly established as a violation of Day’s rights. Id. at 828.
The court denied qualified immunity. The officers appealed.
II. Discussion
A. Jurisdiction
We first address jurisdiction. Appellate jurisdiction is lim-
ited to review of final decisions of the district courts. 28 U.S.C.
§ 1291. Although we generally may not review a district
court’s order until a final judgment is entered resolving all
claims of all parties, the finality requirement is satisfied where
a collateral order “conclusively determines a disputed ques-
tion that is separate from the merits of the case and is effec-
tively unreviewable on an appeal from the final judgment.”
Jones v. Clark, 630 F.3d 677, 679 (7th Cir. 2011) (citing Coopers
& Lybrand v. Livesay, 437 U.S. 463, 468 (1978)). A summary
judgment order denying qualified immunity to a public offi-
cial defendant is such an order that can be immediately re-
viewable “to the extent that it turns on an issue of law.” Id.
(citing Mitchell v. Forsyth, 472 U.S. 511, 528–30 (1985)).
No. 19-1930 9
The plaintiffs assert we lack jurisdiction over this appeal
because the defendants, despite claiming to concede the dis-
trict court’s assumed facts viewed in the light most favorable
to the plaintiffs, are asserting their own preferred version of
facts on disputed questions. We have already discussed why
the plaintiffs are wrong to argue that we and the defendants
must accept the plaintiffs’ version of the facts in this appeal.
It is true, however, that we cannot decide disputed fact ques-
tions in a qualified immunity appeal. We only have jurisdic-
tion “when the party seeking to invoke it makes a purely legal
argument that does not depend on disputed facts.” White, 509
F.3d at 833. Therefore, we must first determine whether the
defendants’ argument depends on disputed issues of fact,
which would preclude our review.
The primary factual dispute identified by the plaintiffs is
whether the first team of paramedics’ medical evaluation was
terminated because Day was medically cleared or because
Wooten refused further medical treatment. They assert the
district court acknowledged this as a disputed issue by stating
“Plaintiffs believe Sergeant Wooten refused hospitalization
on Day’s behalf, and had he not signed the Treat-
ment/Transport Refusal form, the paramedics may have de-
cided to transport Day to the hospital.” Day, 380 F. Supp. 3d
at 820. At argument, the plaintiffs also pointed to evidence
that the paramedics may have included false information in
their medical report or may have been prevented from con-
ducting a full examination due to Day’s hands being cuffed
behind his back.
As an initial matter, the suggestion that the paramedics in-
cluded false information in their report or failed to properly
complete a full evaluation are irrelevant to what Officer
10 No. 19-1930
Denny and Sergeant Wooten knew at the time of the incident.
Our analysis hinges on whether reasonable officers under the
circumstances would know their conduct violated a clearly
established right. Mullenix v. Luna, 136 S. Ct. 305, 308 (2015);
Sow v. Fortville Police Dep’t, 636 F.3d 293, 303 (7th Cir. 2011)
(holding that, in an excessive force case, “the ‘reasonableness’
of the use of force is judged from the perspective of a reason-
able officer on the scene”). Therefore, the only relevant ques-
tion is what the paramedics communicated to the officers at
the scene.
The district court recognized as undisputed that the para-
medics concluded, based on their evaluation, “Day did not
need to be transported to the hospital for medical treatment.”
Day, 380 F. Supp. 3d at 820. The paramedics testified that law
enforcement has no authority to refuse transport to a hospital
if the medical personnel believe hospitalization is necessary.
Sergeant Wooten could not terminate the examination be-
cause he had no authority to do so. The district court also
found that when an officer signs for a handcuffed arrestee, he
“signs this form as a witness to the transfer, not as a repre-
sentative of the detainee,” and that the medics require an of-
ficer to sign the form “when [they] decide that a handcuffed
prisoner is not going to go to the hospital.” Id. Thus, regard-
less of the title or intended use of the form Sergeant Wooten
signed, there is no genuine dispute that the paramedics con-
cluded their evaluation because they believed Day did not
need further treatment.
Moreover, even assuming a factual dispute exists regard-
ing the termination of the examination, we need not resolve
that dispute to reach our conclusion today. Even if the officers
were not entitled to rely on the judgment of the medical
No. 19-1930 11
professionals, they were still entitled to qualified immunity
because there was no clearly established law to put the offic-
ers on notice that handcuffing Day under the circumstances
of this case violated his constitutional rights.
The plaintiffs also dispute whether a second pair of hand-
cuffs was added to Day’s wrists and, if so, when it was added.
But the district court assumed in its statement of facts that a
second pair of handcuffs was added, and that the second pair
was added before the second ambulance arrived. Id. at 821.
Since we accept the district court’s assumed facts for this ap-
peal, we assume this as well. Furthermore, as we explain be-
low, the addition of the second pair of handcuffs does not
change the outcome of this case. Accordingly, we have juris-
diction to address the purely legal question presented by this
appeal.
B. Denial of Qualified Immunity
We review de novo a district court’s denial of summary
judgment on a qualified immunity defense. Rooni v. Biser, 742
F.3d 737, 740 (7th Cir. 2014). As explained previously, we ac-
cept the facts assumed by the district court and the undis-
puted record evidence viewed in the light most favorable to
the plaintiffs. White, 509 F.3d at 833 & n.5.
A public official defendant is entitled to qualified immun-
ity unless two disqualifying criteria are met. First, the evi-
dence construed in the light most favorable to the plaintiff
must support a finding that the defendant violated the plain-
tiff’s constitutional right. Second, that right must have been
clearly established at the time of the violation. Stainback v.
Dixon, 569 F.3d 767, 770 (7th Cir. 2009). Courts may “exercise
their sound discretion in deciding which of the two prongs of
12 No. 19-1930
the qualified immunity analysis should be addressed first in
light of the circumstances in the particular case at hand.” Pear-
son v. Callahan, 555 U.S. 223, 236 (2009). “A clearly established
right is one that is ‘sufficiently clear that every reasonable of-
ficial would have understood that what he is doing violates that
right.’” Mullenix, 136 S. Ct. at 308 (emphasis added).
The Fourth Amendment protects an individual’s right to
be free from unreasonable seizures of his person. U.S. Const.
amend. IV. When an officer uses greater force than reasonably
necessary to make an arrest, he violates the arrestee’s Fourth
Amendment right. Payne v. Pauley, 337 F.3d 767, 778 (7th Cir.
2003). Importantly, “the ‘reasonableness’ of the use of force is
judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.” Sow, 636
F.3d at 303.
To defeat qualified immunity, however, the right must be
defined more specifically than simply the general right to be
free from unreasonable seizure. The Supreme Court has
stated that “[s]pecificity is especially important in the Fourth
Amendment context, where … it is sometimes difficult for an
officer to determine how the relevant legal doctrine, here ex-
cessive force, will apply to the factual situation the officer con-
fronts.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018).
The district court defined the rights at issue as Day’s right
to be free from excessively tight handcuffs and his right to
have the officers consider his injury or condition in determin-
ing the appropriateness of the handcuff positioning. The court
concluded that the officers’ conduct violated those rights.
However, there is no Seventh Circuit precedent clearly estab-
lishing that the conduct the officers engaged in violated either
of those rights.
No. 19-1930 13
The plaintiffs point to Payne v. Pauley, 337 F.3d 767 (7th Cir.
2003), and identify it as the best case to clearly establish the
right to be free from excessively tight handcuffs. The district
court quoted and cited this case for that principle as well. In
Payne, we established the following right: “it was unlawful to
use excessively tight handcuffs and violently yank the arms
of arrestees who were not resisting arrest, did not disobey the
orders of a police officer, did not pose a threat to the safety of
the officer or others, and were suspected of committing only
minor crimes.” Id. at 780. In Payne, the plaintiff alleged (and
we accepted for purposes of the appeal) that two police offic-
ers grappled and struggled over her arm for thirty minutes as
they argued about who would handcuff her, jerked her arm
behind her back, slammed handcuffs onto her wrist, tight-
ened them so tight that she experienced pain and numbness
in her hands, and refused to loosen them when she com-
plained. Id. at 774–75. The plaintiff alleged she was treated
this way even though she was not resisting and had commit-
ted no offense other than voicing disagreement with an irate
officer’s racist remarks. Id.
Payne does not help the plaintiffs because it involves cir-
cumstances and conduct drastically different than this case.
Day was suspected of shoplifting while armed with a gun, a
much more serious offense than the plaintiff in Payne (who
had allegedly done nothing wrong). It is also undisputed that
Day was not cooperative: he repeatedly changed position de-
spite the officer’s instructions to remain seated upright, and
he argued with the officers to let him go. More importantly,
Officer Denny and Sergeant Wooten did not violently yank or
jerk Day’s arms and shoulders, or any of Day’s person for that
matter. Furthermore, the handcuffs in Payne were much
tighter than they needed to be to accomplish the purpose of
14 No. 19-1930
detaining the arrestee, to the point of causing visible physical
injury. There is no suggestion that the handcuffs used on Day
were any tighter than would have been typically used to re-
strain an arrestee in similar circumstances. In fact, the coroner
noted no visible signs of trauma, and the autopsy report indi-
cated no lacerations or contusions on Day’s wrists. The rule
announced in Payne is inapposite.
The other cases pointed to by the plaintiffs to establish a
right to be free from excessively tight handcuffs—Tibbs v. City
of Chicago, 469 F.3d 661 (7th Cir. 2006), and Rooni v. Biser, 742
F.3d 737 (7th Cir. 2014)—similarly fail to clearly establish that
the officers’ conduct violated that right. Tibbs recognized that,
under certain circumstances, the use of excessively tight
handcuffs might constitute excessive force in violation of the
Fourth Amendment. 469 F.3d at 666 (citing Payne, 337 F.3d at
767). However, we held the officer’s actions in that case were
objectively reasonable where the plaintiff complained “once
about his handcuffs without elaborating on any injury, numb-
ness, or degree of pain.” Id. Thus, Tibbs establishes that, absent
any indication an officer is aware the handcuff tightness or
positioning is causing unnecessary pain or injury, the officer
acts reasonably in not modifying the handcuffs.
Likewise, Rooni establishes the right of a person “to be free
from an officer’s knowing use of handcuffs in a way that
would inflict unnecessary pain or injury, if that person pre-
sents little or no risk of flight or threat of injury.” 742 F.3d at
742. Once again, the key fact is that the officer must know the
handcuffs will cause unnecessary pain or injury. Rooni fo-
cused on the importance of multiple and specific complaints
by the arrestee about the nature of his pain or injury. Id. at
742–43 (collecting cases, distinguishing Tibbs because
No. 19-1930 15
“plaintiff complained the handcuffs were on too tight but did
not indicate the degree of pain,” and a case in which the plain-
tiff complained once but did not elaborate on degree or nature
of pain). Because the plaintiff complained only once that the
handcuffs were too tight without further elaboration, we con-
cluded “there was nothing that would have alerted [the of-
ficer] to the fact that a constitutional violation was looming.”
Id. at 743.
Day never complained that the tightness of the handcuffs
was restricting his breathing. The record contains no evidence
that there was any indication the handcuffs were the cause of
Day’s breathing difficulty until the autopsy report was re-
leased. Thus, Day’s right “to be free from an officer’s knowing
use of handcuffs in a way that would inflict unnecessary pain
or injury” was not violated.6
The closely related right asserted by the district court and
the plaintiffs is the right to have the arresting officer consider
the arrestee’s injury or condition when handcuffing the ar-
restee. The district court erred, however, by relying on Salyers
v. Alexandria Police Department for the principle that “officers
act unreasonably by failing to consider an injury or condition
while handcuffing an individual.” Day, 380 F. Supp. 3d at 827.
Salyers is an unreported district court opinion. We have con-
clusively stated that district court opinions cannot clearly es-
tablish a constitutional right because they are not binding
precedential authority. Mason-Funk v. City of Neenah, 895 F.3d
6 We reach this conclusion even without relying on the additional facts
that the first paramedic team found Day’s breathing and oxygen levels to
be good, never requested or attempted to modify Day’s handcuffs, and
concluded he did not need to be hospitalized for further medical treat-
ment.
16 No. 19-1930
504, 509 (7th Cir. 2018). Therefore, if the right relied upon in
Salyers is a clearly established one, it must be clearly estab-
lished by some other source.
Salyers relied on, and the plaintiffs direct our attention to,
our 2009 decision in Stainback v. Dixon, 569 F.3d 767 (7th Cir.
2009). That case involved an arrestee with preexisting arm-
and-shoulder injuries that were exacerbated when law en-
forcement handcuffed him behind his back. The arrestee in
Stainback complained the handcuffs were hurting his shoul-
ders, but never told the officers of his preexisting injuries. If
the officers had known of the preexisting injury, we agreed
“they certainly would have been obligated to consider that in-
formation, together with the other relevant circumstances, in
determining whether it was appropriate to handcuff” the ar-
restee. Id. at 773. However, we held the officers were entitled
to qualified immunity because they did not use the handcuffs
“in a manner that would clearly injure or harm a typical ar-
restee,” and it was not apparent to the officers, nor were they
informed, that the arrestee had a preexisting condition that
could be aggravated by the handcuffs. Id. “[A] reasonable of-
ficer cannot be expected to accommodate an injury that is not
apparent or that otherwise has not been made known to him.”
Id.
Thus, Stainback only clearly establishes the right to have a
known injury or condition considered, together with other cir-
cumstances, by officers when handcuffing. Stainback fails to
clearly establish that Officer Denny and Sergeant Wooten’s
conduct was violative. Just as the arrestee in Stainback com-
plained generally of shoulder pain but never explained the ef-
fect of the handcuffs on his preexisting injury, Day com-
plained he was having trouble breathing but never
No. 19-1930 17
complained that this was caused or exacerbated by his hand-
cuffs as opposed to his exertion during the chase preceding
his arrest. The officers (and apparently Day himself) were also
unaware of Day’s underlying heart condition, which also con-
tributed to his lack of oxygen according to the autopsy report.
In Stainback, we acknowledged “in some cases, the fact that
an act will cause pain or injury will be clear form the nature
of the act itself.” Id. at 772. We concluded, however, that it
would not be clear to the officers that the arrestee’s shoulder
pain was caused by the act of cuffing his hands behind his
back. Id. at 773. It is even less obvious under the circumstances
of this case that Day’s trouble breathing was caused by hand-
cuff positioning. The record does not show this would be ap-
parent to the officers at the time of the arrest.7 Accordingly,
like the right in Payne, Rooni, and Tibbs, the right at issue in
7 The plaintiffs suggest that the addition of a second pair of handcuffs
before the second ambulance arrived is evidence of the officers’ awareness
that the single pair of handcuffs had been restricting Day’s breathing. This
is entirely speculative and goes well beyond a reasonable inference to
which the plaintiffs are entitled. See White v. City of Chicago, 829 F.3d 837,
841 (7th Cir. 2016). Adding a second pair of handcuffs indisputably pro-
vides more comfort to an arrestee; there is no reason to believe the second
pair was added to relieve Day’s breathing as opposed to simply providing
more comfort to an arrestee who, at that late point, was obviously suffer-
ing a medical trauma. In fact, the district court found the officers added
the second pair of handcuffs at that point “because they believed Day was
having a medical problem,” not because they specifically understood the
handcuffs were causing his breathing difficulty. Furthermore, even if the
addition of the second pair of handcuffs is evidence that the officers be-
came aware that the first pair was restricting his breathing, it would then
also be evidence that the officers did consider Day’s medical condition and
modified the handcuffs when it became apparent they were causing a
problem. Either way, this fact does not help the plaintiffs.
18 No. 19-1930
Stainback to have a known injury or condition considered by
officers when handcuffing an arrestee is not implicated by the
facts of this case.
Given the facts as assumed by the district court and the
information known to the officers at the time of the arrest, the
only right plaintiffs can assert would be the right of an out-of-
breath arrestee to not have his hands cuffed behind his back
after he complains of difficulty breathing. We find no Seventh
Circuit precedent clearly establishing such a right. The cases
relied upon by the district court and the plaintiffs present cir-
cumstances far different, and therefore cannot clearly estab-
lish that the officers’ conduct violated Day’s rights.
One further point must be addressed. The Supreme Court
has stated that even in the absence of existing precedent ad-
dressing similar circumstances, “there can be the rare ‘obvi-
ous case,’ where the unlawfulness of the officer’s conduct is
sufficiently clear.” District of Columbia v. Wesby, 138 S. Ct. 577,
590 (2018). This case is certainly not one of those rare obvious
cases. As already discussed, the handcuffs were used in a
manner that would not have harmed an average arrestee, and
there is no evidence the officers were aware the handcuffs
were causing Day’s breathing trouble. The officers’ conduct
under the circumstances was not obviously unlawful.
III. Conclusion
This case arose from an unfortunate tragedy. However,
the officers did not violate any clearly established right. Ac-
cordingly, the district court’s judgment denying Officer
Denny and Sergeant Wooten’s qualified immunity defense is
REVERSED and the case is REMANDED for proceedings con-
sistent with this opinion.