Fernando Lopez v. Sheriff of Cook County

                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 20-1681
FERNANDO LOPEZ,
                                                  Plaintiff-Appellant,
                                 v.

SHERIFF OF COOK COUNTY, et al.,
                                               Defendants-Appellees.
                     ____________________

         Appeal from the United States District Court for the
           Northern District of Illinois, Eastern Division.
            No. 16 C 10931 — Edmond E. Chang, Judge.
                     ____________________

     ARGUED DECEMBER 4, 2020 — DECIDED APRIL 9, 2021
                ____________________

   Before KANNE, WOOD, and SCUDDER, Circuit Judges.
   SCUDDER, Circuit Judge. Nothing much good happens after
3:00 a.m. The early morning hours of November 30, 2014 out-
side the Funky Buddha Lounge on Chicago’s West Side were
no different. That morning, upon hearing a gunshot, Officer
Michael Raines, an off-duty Cook County correctional officer
out celebrating a friend’s birthday, approached the scene of a
scuffle between patrons outside the Lounge. Fernando Lopez
was present and pulled a gun, firing two shots into the air.
2                                                    No. 20-1681

Having seen Lopez fire near people on a crowded street, Of-
ficer Raines confronted and shot Lopez multiple times in the
span of three seconds. Lopez reacted by dropping his gun and
scampering toward the sidewalk outside the bar. Just as
Raines began to chase after him, Lopez’s friend Mario Orta
picked up the dropped gun and fired at Raines—but missed.
Officer Raines then used Lopez as a human shield in a stand-
off with Orta for several minutes until Orta fled. The scene
was chaotic and everything happened fast.
    Lopez survived and brought a civil rights suit alleging Of-
ficer Raines used excessive force against him in violation of
the Fourth Amendment. The district court granted summary
judgment for the defendants, concluding that Officer Raines
was entitled to qualified immunity because his use of deadly
force did not violate clearly established law. We affirm,
though not without the same pause expressed by the district
court. Our review of the record, including video footage of the
events, leaves us with the impression that although the cir-
cumstances were volatile, Officer Raines may have been able
to avoid any use of lethal force. We cannot conclude, however,
that his decision to the contrary violated clearly established
law.
                                  I
                                 A
    Our retelling of the facts tracks the district court’s meticu-
lous recitation at summary judgment. We view all facts in the
light most favorable to Lopez as the nonmovant and draw all
reasonable inferences in his favor. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). We may also
take stock of what the video evidence shows without favoring
No. 20-1681                                                    3

Lopez where the video contradicts his view of the facts. See
Scott v. Harris, 550 U.S. 372, 378–81 (2007); Horton v. Pobjecky,
883 F.3d 941, 944 (7th Cir. 2018).
    Security camera timestamps show that at about 3:55 a.m.
on November 30, 2014, many people were loitering outside
the Funky Buddha Lounge. Fernando Lopez was driving a
group of his friends westbound on Grand Avenue when he
sideswiped an SUV parked in front of the Lounge. A group of
bystanders saw this and reacted by swarming Lopez’s car and
grabbing and punching at him through an open window. The
already tense situation then escalated.
    One of the passengers exited Lopez’s car, displayed a
handgun, and fired a warning shot into the air. Lopez also got
out of the car, grabbed the passenger’s gun, and waved it
around in the air—presumably to scare off the group that had
encircled his car. Lopez then walked toward a few of the men
in the now-dispersed group, crossing the street and alternat-
ing between pointing the gun at them and up in the air as if
to tell everyone not to mess with him.
    While all of this unfolded, Michael Raines, a correctional
officer with the Cook County Sheriff’s Office who had been
out celebrating a friend’s birthday, arrived on the scene at
3:56:11 a.m., likely after hearing the initial gunshot from a
nearby bar. The video footage shows Raines running onto
Grand Avenue, at an intersection not more than a few car
lengths from where Lopez stood. Just a few seconds after
Raines came onto the scene, Lopez turned away from his flee-
ing attackers and walked back toward his car. While doing so,
he stopped in the middle of the street and fired two shots at
an upward angle in the general direction of a few fleeing
4                                                 No. 20-1681

Lounge-goers. Officer Raines then approached Lopez with his
own gun drawn.
    It was now 3:56:22 a.m. Raines and Lopez walked toward
each other—both visibly armed—though it was not clear
whether Lopez had seen Raines by this point. Lopez waved
his gun up and down, though he does not appear to have
aimed directly at Officer Raines. For his part, Raines had his
gun aimed at Lopez. Lopez then reached to open his car door,
but Raines started shooting before he could get inside the car
(at about 3:56:27 a.m.). Lopez—hit by at least one bullet—
turned, dropped his gun, and started to stagger away. Raines
stayed focused on Lopez and continued to fire for two more
seconds, stopping at 3:56:30 a.m. All told, Raines appears to
have fired six rounds in three seconds.
    Injured but still standing, Lopez then ran around the back
of his car, eventually reaching the sidewalk right outside the
Lounge at about 3:56:32 a.m. Officer Raines kept pursuing
Lopez, who was holding himself up by leaning against the
Lounge’s wall. As Raines followed and approached Lopez,
Mario Orta, a passenger in Lopez’s car, picked up the
dropped gun and almost immediately fired a shot directly at
Officer Raines (at about 3:56:32 a.m.). The shot missed. Raines
reached Lopez along the Lounge’s exterior wall just two sec-
onds later.
    What followed was bizarre and dangerous—but it all hap-
pened and was captured on several security cameras. Video
footage from one of the cameras may be accessed at
https://www.chicagotribune.com/news/breaking/ct-funky-
buddha-gunfight-sentencing-20170725-story.html. For about
three and a half minutes, Mario Orta (Lopez’s friend) and Of-
ficer Raines engaged in a protracted standoff with guns
No. 20-1681                                                  5

pointed at one another. At several points in the standoff, Orta
circled Raines, getting as close as a couple of feet away from
him. Throughout the standoff with Orta, Raines simultane-
ously restrained Lopez—now wounded, but conscious—and
used him as a human shield to prevent Orta from getting a
clean shot. At one point, Orta entered the Lounge, seemingly
looking for another route to approach Raines. Orta eventually
reemerged from the Lounge’s front entrance at 3:56:54 a.m.
and aimed his gun squarely at Raines. Orta started to walk
off, but then again approached Raines at 3:57:13 a.m. During
this confrontation, Officer Raines alternated between holding
the gun at Lopez’s head, using it to wave off bystanders who
tried to diffuse the situation, and pointing his gun straight at
Orta. Lopez, injured but still alert, repeatedly swatted at
Raines’s gun in an effort to dislodge it.
   At about 4:00:10 a.m., less than five minutes after events
began with an errant car sideswipe, Orta fled the scene. That
no one died during the chaotic melee is astonishing.
                                B
    Police and paramedics soon arrived at the scene. Lopez
survived and later faced criminal charges in Cook County,
where he pleaded guilty to a state law firearms offense. See
720 ILCS 5/24-1.2(a)(2) (defining and criminalizing the aggra-
vated discharge of a firearm). He also brought suit in federal
court under 42 U.S.C. § 1983 against Officer Raines (and now
that Raines has since passed away, against his special repre-
sentative), the Sheriff of Cook County, and Cook County.
Lopez alleged that Raines used excessive force in violation of
the Fourth Amendment. He also brought a related Monell lia-
bility claim against Cook County.
6                                                    No. 20-1681

    The defendants moved for summary judgment, contend-
ing that Officer Raines did not use excessive force and that
Lopez’s § 1983 action was barred by Heck v. Humphrey, 512
U.S. 477 (1994), on the view that the claim necessarily under-
mines the validity of Lopez’s conviction in Cook County. The
defendants further argued that Officer Raines was entitled to
qualified immunity regardless of the merits of the excessive
force claim. While Lopez disputed whether qualified immun-
ity applied to Raines’s specific conduct, he did not contend
that Officer Raines was ineligible to assert the defense on the
basis that the challenged conduct occurred while Raines was
off duty. Doing otherwise would have undermined the basis
for Lopez’s § 1983 suit, which requires that a defendant act
“under color of state law.” West v. Atkins, 487 U.S. 42, 48
(1988). Our case law also makes plain that Raines’s conduct,
even though off duty, could constitute state action. See Pickrel
v. City of Springfield, 45 F.3d 1115, 1118 (7th Cir. 1995) (“Decid-
ing whether a police officer acted under color of state law
should turn largely on the nature of the specific acts the police
officer performed, rather than on merely whether he was ac-
tively assigned at the moment to the performance of police
duties.”).
    The district court entered summary judgment for the de-
fendants, concluding that even though Lopez’s suit was not
Heck-barred, Officer Raines was entitled to qualified immun-
ity. That determination, the district court observed, meant
that the rest of Lopez’s claims necessarily failed.
   The district court chose to proceed first to the second
prong of the qualified immunity analysis—whether Officer
Raines violated clearly established law. See Pearson v. Calla-
han, 555 U.S. 223, 236 (2009) (concluding that judges may
No. 20-1681                                                   7

exercise “discretion in deciding which of the two prongs of
the qualified immunity analysis should be addressed first”).
While emphasizing that Raines’s conduct is open to criticism,
the district court explained that the law affords police officers
significant deference in making snap decisions in the heat of
the moment, with officers losing the benefit of qualified im-
munity only when they violate clearly established law. Officer
Raines, the district court observed, heard a gunshot, re-
sponded, and then saw Lopez fire a weapon around a group
of people standing outside and near the Funky Buddha
Lounge. The court further observed that after shooting Lopez,
Raines was fired upon and subsequently engaged in a pro-
longed standoff with an armed assailant while trying to sub-
due an injured-but-resisting Lopez. With these unique and
fast-moving facts front of mind, the district court concluded
that Officer Raines did not violate clearly established law and
was therefore entitled to qualified immunity.
   Lopez now appeals.
                                II
   We first consider the defendants’ argument that Heck v.
Humphrey bars Lopez’s § 1983 claim. This contention is way
off the mark.
    A prisoner cannot seek damages against a governmental
entity for a violation of his constitutional rights when a judg-
ment in the prisoner’s favor “would necessarily imply the in-
validity of his conviction or sentence.” Heck, 512 U.S. at 486–
87. Allowing Lopez’s excessive force claim to proceed, the de-
fendants contend, implies the invalidity of Lopez’s conviction
for discharging a firearm. We agree with the district court that
Lopez’s conviction does not bar his § 1983 suit because
8                                                     No. 20-1681

success on the Fourth Amendment excessive force claim does
not depend on any fact undermining or implying the invalid-
ity of the state law conviction.
    Lopez pleaded guilty to aggravated discharge of a firearm,
which requires a person to knowingly or intentionally fire in
the direction of another person. See 720 ILCS 5/24-1.2(a)(2).
Under Illinois law, however, a person can be found guilty of
that offense without posing a threat of serious harm to an-
other. See People v. Ellis, 929 N.E.2d 1245, 1248–49 (Ill. App. Ct.
2010). This means Lopez can be guilty of aggravated dis-
charge of a firearm while also having had excessive force used
against him by an officer after the fact. These two realities are
not mutually exclusive. So Heck does not bar Lopez’s § 1983
claim.
                                 III
                                  A
    We come now to the district court’s grant of qualified im-
munity. The doctrine of qualified immunity balances dueling
interests—allowing officials to perform their duties reasona-
bly without fear of liability on the one hand and “affording
members of the public the ability to vindicate constitutional
violations by government officials who abuse their offices” on
the other. See Weinmann v. McClone, 787 F.3d 444, 447–48 (7th
Cir. 2015) (cleaned up). In evaluating a law enforcement of-
ficer’s entitlement to qualified immunity, we undertake the
twofold inquiry of asking whether his conduct violated a con-
stitutional right and, if so, whether that right was clearly es-
tablished at the time of the alleged violation. See District of
Columbia v. Wesby, 138 S. Ct. 577, 589 (2018). We may choose
which prong to address first. See Pearson, 555 U.S. at 236.
No. 20-1681                                                   9

    Like the district court, we begin and end with the second
step of the analysis: determining whether Officer Raines vio-
lated Fernando Lopez’s clearly established Fourth Amend-
ment right to be free from an unreasonable seizure. For the
law to be clearly established, the “existing precedent must
have placed the statutory or constitutional question beyond
debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).
    Assessing whether an officer used excessive force turns on
whether the officer’s actions are “objectively reasonable in
light of the facts and circumstances confronting [the officer].”
Graham v. Connor, 490 U.S. 386, 397 (1989) (internal quotation
omitted). We must consider, too, “the facts and circumstances
of each particular case, including the severity of the crime at
issue, whether the suspect poses an immediate threat to safety
of the officers or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight.” Id. at 396.
    This context-specific inquiry notwithstanding, it is firmly
established that a “person has a right not to be seized through
the use of deadly force unless he puts another person (includ-
ing a police officer) in imminent danger or he is actively re-
sisting arrest and the circumstances warrant that degree of
force.” Strand v. Minchuk, 910 F.3d 909, 915 (7th Cir. 2018)
(quoting Weinmann, 787 F.3d at 448); see also Tennessee v. Gar-
ner, 471 U.S. 1, 11–12 (1985). But these situations are fluid.
While an officer may be authorized to use deadly force at one
moment, it is not a blank check. When an individual has be-
come “subdued and [is] complying with the officer’s orders,”
the officer may no longer use deadly force. Johnson v. Scott, 576
F.3d 658, 660 (7th Cir. 2009). Yet we must be careful not to al-
low the benefit of hindsight to cause us to discount the reality
10                                                   No. 20-1681

that officers must make quick decisions as to how much force,
if any, to employ. See Graham, 490 U.S. at 396–97.
    While cases like Garner and Graham are instructive in the
excessive force context, they “do not by themselves create
clearly established law outside an obvious case.” Kisela v.
Hughes, 138 S. Ct. 1148, 1153 (2018) (internal citations omit-
ted). Determining whether an officer violates clearly estab-
lished law requires a look at past cases with specificity. See id.
at 1152–53. The Supreme Court has time and again instructed
lower courts “not to define clearly established law at a high
level of generality.” Mullenix v. Luna, 577 U.S. 7, 12 (2015)
(quoting al-Kidd, 563 U.S. at 742). Specificity is critical to mak-
ing qualified immunity a workable doctrine in the Fourth
Amendment context, where it “is sometimes difficult for an
officer to determine how the relevant legal doctrine . . . will
apply to the factual situation the officer confronts.” Id. at 308.
    But this requirement is not unbending. The prong-two
clearly-established-law assessment does not require a case
with identical factual circumstances, lest qualified immunity
become absolute immunity. See Kisela, 138 S. Ct. at 1152. Still,
the right must be so clearly established such that it is “suffi-
ciently clear that every reasonable official would have under-
stood that what he is doing violates that right.” Reichle v. How-
ards, 132 S. Ct. 2088, 2093 (2012) (cleaned up). That sounds like
a high bar because it is—qualified immunity protects “all but
the plainly incompetent or those who knowingly violate the
law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
                                  B
  The district court approached this inquiry the exact right
way, looking first to past precedent to ask whether any cases
No. 20-1681                                                  11

squarely govern the facts at issue. In following suit, we too
think it best to consider Officer Raines’s use of force that early
morning in two distinct phases: the shooting of Lopez and the
use of Lopez as a human shield during the sidewalk standoff.
   Recall the scene when Officer Raines arrived. It was just
before 4 a.m. when Raines heard a gunshot from a nearby bar
and ran to Grand Avenue, where he saw Fernando Lopez fire
two shots into the air, in close proximity to the scattering
crowd outside the Funky Buddha Lounge. Lopez then turned
in Raines’s direction and began walking toward him, all the
while displaying and waving a gun.
    Though we have tried our best to describe the incident, a
picture is worth a thousand words.




This still image of security camera video footage shows the
positioning and proximity of Lopez (indicated by a triangle)
and Officer Raines (circled) when Lopez, while standing in
12                                                 No. 20-1681

the middle of Grand Avenue, fired twice into the air at 3:56:20
a.m.
    Neither the Supreme Court’s precedent nor our own
clearly establishes that Officer Raines’s split-second decision
to open fire was unlawful. There were many people on the
city street when Lopez, just moments before, opened fire. All
Raines knew at the time he fired was that Lopez had just
popped off two rounds and that Lopez was now walking in
his general direction with gun in hand. A reasonable officer
could have concluded that Lopez was an imminent threat
both to the officer and the bystanders on the street and outside
the Lounge.
    Lopez insists that Officer Raines should have given him a
warning. Whether Raines did so is disputed. At summary
judgment and without any clear evidence to the contrary, we
must credit Lopez’s contention that Raines did not announce
himself as a police officer. A warning is decidedly preferred—
but it is not required in every circumstance. See Pobjecky, 883
F.3d at 952 (“Garner requires an officer to warn ‘where feasi-
ble’ but does not require an officer to warn under all circum-
stances.”). Given the lack of clearly established law, Officer
Raines is entitled to qualified immunity as to the first shot.
From here the case gets much harder.
    Lopez contends that even if the first shot did not trans-
gress established law, Raines’s subsequent shots clearly vio-
lated Lopez’s constitutional right not to have lethal force used
against him once he was subdued by the initial shot. But that
contention too discounts the speed and unpredictability with
which events unfolded on the street that morning. As the dis-
trict court explained, the video shows that Raines first shot
Lopez at 3:56:27 a.m. Lopez dropped his gun one second later,
No. 20-1681                                                   13

but as he turned and started to run, Officer Raines fired for
two more seconds, until 3:56:30 a.m. Raines fired all of his
shots in the span of three seconds.
     In retrospect, and with the benefit of the security footage,
it is inviting to parse the multiple shots fired into separate in-
dividual events. But we must consider them together in light
of how quickly—and in precisely what circumstances—eve-
rything transpired. Indeed, in this very context of qualified
immunity, the Supreme Court has emphasized that a proper
analysis must “allo[w] for the fact 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.”
Plumhoff v. Rickard, 572 U.S. 765, 775 (2014) (alteration in orig-
inal) (quoting Graham, 490 U.S. at 396–97). Lopez cannot point
to a case that clearly establishes a reasonable officer cannot
use lethal force over the span of three seconds on an individ-
ual he had just seen fire his weapon, who has not surrendered,
and is still moving to evade capture.
    Lopez points to precedent that we find either easily distin-
guishable or standing for principles that do not show that Of-
ficer Raines’s conduct violated clearly established law. Con-
sider, for instance, our decision in Ellis v. Wynalda, 999 F.2d
243 (7th Cir. 1993). Wynalda clearly establishes only that
“[w]hen an officer faces a situation in which he could justifi-
ably shoot, he does not retain the right to shoot at any time
thereafter with impunity.” Id. at 247. That general proposition
is clear, but it does not change our analysis of Officer Raines’s
specific conduct. Wynalda is different because the victim there
was shot in the back while fleeing and did not have a gun—
unlike Lopez, who was armed, had just fired at least two shots
14                                                   No. 20-1681

on a populated city street, and was walking in the direction of
an officer while displaying a gun.
    Nor does Sledd v. Lindsay, 102 F.3d 282 (7th Cir. 1996), de-
feat qualified immunity for Officer Raines. In Sledd, we re-
versed a grant of qualified immunity because there were nu-
merous disputed questions of material fact that were, inci-
dentally, unaided by any video footage. See id. at 284. Even
more significant, Andrew Sledd was shot in his own home af-
ter police executed a disputed no-knock warrant—and cru-
cially, Sledd had not fired any shots in front of police. See id.
at 286. The shooting of Lopez, by contrast, happened on a
crowded city street only after Officer Raines saw Lopez fire
shots and walk toward him displaying the gun. Not only are
these cases distinguishable, but there is also recent precedent
with facts that more closely resemble the situation here.
    Just two years ago, we held that an off-duty police of-
ficer—who did not announce himself—acted reasonably
when he shot and killed an unarmed, fleeing suspect at a
pizza parlor. See Pobjecky, 883 F.3d at 946. That case, while not
on all fours with the circumstances here, does lend support to
the district court’s conclusion that Officer Raines did not vio-
late clearly established law. At the very least, Pobjecky does not
“place[ ] the invalidity of [Raines’s conduct] beyond debate.”
Johnson v. Rogers, 944 F.3d 966, 969 (7th Cir. 2019).
                                 C
   Our assessment does not change when we consider Officer
Raines’s conduct on the sidewalk. Recall that after Raines shot
Lopez, Lopez quickly moved around the rear of his car and
scampered toward the sidewalk. Security footage shows
Lopez dropped his gun but was still fleeing. Raines followed
No. 20-1681                                                15

after him, quickly reaching Lopez on the sidewalk near the
entrance to the Lounge just a few seconds later (at 3:56:34
a.m.). As Officer Raines followed after Lopez, Mario Orta
picked up Lopez’s gun and immediately opened fire on
Raines—shooting directly at him but missing. Raines was
then forced to deal with two assailants—restraining an in-
jured Lopez and keeping a mobile, gun-toting Orta at bay.
Notice what Officer Raines did not do: he never again fired
his weapon. He instead used Lopez’s body as a buffer be-
tween himself and Orta, rotating his position (and the injured
Lopez) to react to Orta’s constant movement. Here, too, a pic-
ture may again clarify the scene.




This still image of security camera video footage shows one
snippet of the sidewalk standoff between Orta (indicated by a
rectangle) and Raines (circled) at 3:57:15 a.m. The picture
shows what we mean when we say that Officer Raines used
Lopez as a human shield.
16                                                   No. 20-1681

    To be sure, Raines aggressively restrained Lopez, at times
holding a gun to his head. You certainly (and rightly) will not
find this maneuver in a police training manual. But the quali-
fied immunity inquiry is not whether Officer Raines’s action
is immune from criticism. The question the Supreme Court
instructs courts to consider instead is whether Officer Raines
violated clearly established law. In our view, he did not.
    Putting a gun to someone’s head is no doubt a use of force.
See Jacobs v. City of Chicago, 215 F.3d 758, 773 (7th Cir. 2000).
And the use of such force is unreasonable when the suspect is
subdued and complying with orders. See Johnson, 576 F.3d at
660. But Lopez was neither incapacitated nor complying with
orders. He was actively trying to swat Officer Raines’s gun
away as Raines tried to fend off an armed and dangerous
Orta. By the district court’s count, Lopez did this more than
17 times while Orta aimed his gun squarely at Raines.
   The combination of these unusual facts compels our con-
clusion. We cannot say that Officer Raines’s actions on the
sidewalk violated law clearly established in 2014—especially
when considering the Supreme Court’s admonition to define
the violation with specificity. Try as Lopez might, there is no
analogous case to put Raines on notice that his conduct was
unlawful given the circumstances he faced in those early
morning hours.
    Nor is this a situation where a violation is so egregious
that any reasonable officer would know they are violating the
Constitution notwithstanding the lack of an analogous deci-
sion. See Taylor v. Riojas, 141 S. Ct. 52, 53–54 (2020); Hope v.
Pelzer, 536 U.S. 730, 740–42 (2002); Estate of Escobedo v. Bender,
600 F.3d 770, 780 (7th Cir. 2010) (“[The] conduct was so pa-
tently violative of the constitutional right that reasonable
No. 20-1681                                                 17

officials would know without guidance from a court.”). The
situation was too fast-moving, too unpredictable, and too vol-
atile to reach that conclusion. Raines could have reasonably
concluded he was acting lawfully in protecting himself and
the public when he subdued Lopez and tried to defuse the
situation by using him as a shield to ward off Mario Orta until
police arrived at the scene.
                               IV
    What makes this case difficult is the distinct impression
the video leaves us with after watching it multiples times. By
the looks of it, there is a reasonable chance that Fernando
Lopez was about to get in his car and leave the scene right
when Officer Raines opened fire. That observation invites the
conclusion that Raines may not have needed to use lethal
force at all. This whole situation may have been avoided had
cooler heads prevailed that morning.
    Hindsight—aided by watching this scene unfold frame by
frame on video footage from four distinct angles in the com-
fort of the courthouse—allows us to ponder how Officer
Raines could have best handled the situation. But that is not
our inquiry here. We are left to evaluate whether Raines’s con-
duct violated clearly established law, given the dangerous,
delicate, and dynamic circumstances he faced that morning
and the state of the law at the time. The benefit of hindsight
does not lower the clear and high bar that is the law of quali-
fied immunity. In this case that bar compels us to AFFIRM the
grant of qualified immunity.