Charles Brumitt v. Sam Smith

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-1321
C HARLES BRUMITT ,
Plaintiff-Appellee,
v.
SAM SMITH ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Evansville Division.
No. 3:20-cv-00260 — Tanya Walton Pratt, Chief Judge.
____________________
A RGUED J ANUARY 30, 2024 — D ECIDED MAY 20, 2024
____________________
Before SYKES , Chief Judge, and KIRSCH and P RYOR , Circuit
Judges.
KIRSCH , Circuit Judge. After Charles Brumitt struck Evans-
ville Police Department Sergeant Sam Smith, Smith defended
himself by punching Brumitt four times in the face, knocking
him unconscious. Brumitt sued Smith under 42 U.S.C. § 1983,
asserting that Smith used excessive force in violation of his
Fourth Amendment rights. Smith moved for summary judg-
ment. He argued that the force he used was objectively

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2 No. 23-1321
reasonable and that, because no clearly established law held
otherwise, he was entitled to qualified immunity. The district
court denied Smith’s motion, concluding that factual disputes
prevented it from determining whether the force was reason-
able and whether Smith was entitled to qualified immunity.
Smith filed this interlocutory appeal from the denial of quali-
fied immunity. Because we conclude that the law does not
clearly establish that Smith used unlawful force, we reverse
the district court’s decision and remand to enter judgment for
Smith.
I
“We recount the facts in the light most favorable to [Bru-
mitt],” McGee v. Parsano, 55 F.4th 563, 566 (7th Cir. 2022), alt-
hough many of the facts are undisputed because much of the
incident was captured by Smith’s body-worn camera.
Sam Smith, a sergeant with the Evansville Police Depart-
ment, encountered Charles Brumitt around 3 am while patrol-
ling in his police car. Smith entered the parking lot of a bar
and spotted Brumitt lying down on a utility box. He left his
car to check on Brumitt’s wellbeing and to see if there were
any warrants for Brumitt’s arrest. Assuming that Brumitt
(who was lying on his side) was drunk, Smith asked if he was
okay. Brumitt mumbled, “No,” and stopped talking. Smith
told Brumitt to talk to him, that he was a police officer, and
that he wanted to make sure Brumitt was okay. Still in a muf-
fled voice, Brumitt said he could be “passed out wherever [he]
want[s].” Smith disagreed, saying he could “take [him] to
jail.” Brumitt challenged Smith, “Take me, motherfucker.
Take me.” Smith responded, “Take you to jail?”

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No. 23-1321 3
Because of the angling of the parties’ bodies in front of the
camera, the recording did not fully capture what happened
next. Smith testified that, because he thought he saw a debit
card sticking out of Brumitt’s pocket (which might have had
information needed to check for warrants), he said, “Let’s see
your ID,” and reached for the card. Brumitt began to rise and
snarled, “Don’t you reach in my butt, damn it. God damn it,
don’t reach in my butt.” Smith responded, “I’ll tell you what,”
and Brumitt insisted, “Damn it, don’t do this shit.”
The clash turned physical. While seated, Brumitt swung
his arm at Smith, and his open hand hit Smith’s face in a
roundhouse swing. Brumitt then slurred, “Get the fuck off
me, motherfucker.” Having never been hit while on duty, the
attack startled but did not injure Smith. Smith grabbed Bru-
mitt’s shirt and punched Brumitt’s face four times over (at
most) four seconds, later saying, “You don’t hit me.” He de-
scribed his response as “purely instinctual” and likely based
on his training as a competitive fighter. (Smith holds several
black belts.)
Sometime during the four seconds, Brumitt lost conscious-
ness. Smith did not realize or process that Brumitt was uncon-
scious until after the fourth punch. Brumitt lay still for several
minutes while Smith called an ambulance and handcuffed
Brumitt, who suffered an acute fracture of his eye socket, a
broken nose, and lacerations that required surgery. Brumitt
later pleaded guilty to misdemeanor battery and public intox-
ication.
Brumitt sued Smith and the City of Evansville, alleging,
along with state-law claims, that Smith violated his Fourth
Amendment rights. Relevant here, Smith moved for sum-
mary judgment, arguing that his force was reasonable, and he

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4 No. 23-1321
was entitled to qualified immunity because precedent did not
put him on clear notice that his actions were unconstitutional.
Brumitt replied that Smith’s force, enhanced by his martial-
arts training, was grossly disproportionate to the threat that
Brumitt posed while drunk, and it needlessly continued after
Brumitt was unconscious and subdued. The law, Brumitt
added, clearly established that an officer may not continue to
use force against a person who is subdued; therefore, quali-
fied immunity was inappropriate.
The district court denied the motion for summary judg-
ment. It accepted that Brumitt threatened Smith. But, it con-
tinued, a reasonable jury could decide (as the court itself did)
that Smith’s use of force was undue because he had no reason
to believe that Brumitt was armed, and his threat was “miti-
gated by [his] apparent intoxication, drowsiness, and lack of
coordination.” A jury could also find, the court added, that
Smith continued to use force on Brumitt after he was uncon-
scious and that, between punches, a reasonable officer would
have “see[n] Brumitt with his arms at his sides and his head
tilted to the side” and stopped punching. Regarding qualified
immunity, the court stated that the right Brumitt asserted—
“to be free from force once subdued”—was clearly estab-
lished. Moreover, it added, the parties genuinely disputed
whether “Brumitt was unconscious, and thus subdued, after
Sergeant Smith’s second or third strike” and whether a “rea-
sonable officer would have perceived him as unconscious and
had time to recalibrate his use of force.” Therefore, the court
concluded, it could not determine whether Smith was entitled
to immunity.

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No. 23-1321 5
II
Brumitt’s excessive-force claim under the Fourth Amend-
ment is governed by the objective reasonableness standard.
Plumhoff v. Rickard, 572 U.S. 765, 774 (2014). This standard re-
quires assessing the totality of the circumstances facing Smith
and balancing “the nature and quality of the intrusion on
[Brumitt’s] Fourth Amendment interests against the counter-
vailing governmental interests at stake.” Strand v. Minchuk,
910 F.3d 909, 914 (7th Cir. 2018) (quoting Plumhoff, 572 U.S. at
774). Relevant factors include whether Brumitt posed a threat
to Smith, resisted arrest, or tried to flee, as well as the severity
of the crime of which he was suspected. Id. (citing Graham v.
Connor, 490 U.S. 386, 396 (1989)). But even if under this stand-
ard Smith used objectively unreasonable force, he is entitled
to qualified immunity if Brumitt cannot “demonstrate that the
right to be free from the particular use of force under the rel-
evant circumstances was ‘clearly established.’” Abbott v. San-
gamon County, 705 F.3d 706, 725 (7th Cir. 2013).
A
Before turning to the qualified-immunity analysis, we first
consider jurisdiction. We generally lack jurisdiction to review
a denial of summary judgment, but the collateral-order doc-
trine permits immediate review of the denial of qualified im-
munity. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). We may
review pure questions of law, McGee, 55 F.4th at 571, but we
cannot review a district court’s order denying qualified im-
munity “insofar as that order determines whether or not the
pretrial record sets forth a ‘genuine’ issue of fact for trial,”
Johnson v. Jones, 515 U.S. 304, 319–20 (1995). We must deter-
mine whether the denial “centers on pure questions of histor-
ical fact,” such as “who did what, when or where, how or

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6 No. 23-1321
why,” or if the denial relies on undisputed facts. McGee, 55
F.4th at 571 (cleaned up).
The parties debate whether factual disputes defeat appel-
late jurisdiction. Brumitt argues that factual disputes identi-
fied by the district court—such as whether Smith used pro-
portionate force and whether a reasonable officer would
know that Brumitt was unconscious—prevent us from deter-
mining whether Smith is entitled to qualified immunity.
Smith counters that no factual disputes prevent appellate ju-
risdiction and that the district court erred in stating that the
ultimate question of whether the force was reasonable was
one for the jury.
Appellate jurisdiction is secure. It is true that Smith’s ar-
guments at times fail to take factual inferences in Brumitt’s
favor. But any reliance on disputed facts is not fatal to appel-
late jurisdiction because we can separate the legal and factual
arguments. See Smith v. Finkley, 10 F.4th 725, 735 (7th Cir.
2021). By construing all the facts in Brumitt’s favor, we can
decide whether it is clearly established under the Fourth
Amendment that Brumitt had a right to be free from Smith’s
use of force under the circumstances —a pure question of law.
See McGee, 55 F.4th at 571; see also Phillips v. Cmty. Ins. Corp.,
678 F.3d 513, 520 (7th Cir. 2012) (“Objective reasonableness of
force is a legal determination rather than a pure question of
fact for the jury to decide.”).
B
With jurisdiction secure, we turn to the question of
whether Smith is entitled to qualified immunity. Smith argues
that the district court erred in framing the right, which it said
was clearly established, as the right to be free from force once

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No. 23-1321 7
subdued. Framing the right this way, he says, impermissibly
views the incident with 20/20 hindsight. It also, Smith sug-
gests, wrongly assumes that precedent clearly requires rea-
sonable police officers to repeatedly reconsider the use of
force throughout an encounter lasting only a few seconds to
guarantee that officers know and react to the precise moment
that a suspect becomes unconscious.
We agree with Smith that Brumitt has not met his burden
of showing that Smith violated a clearly established right.
When reviewing force for reasonableness, we assess the “facts
and circumstances that confronted the officer,” without
“20/20 hindsight.” Abbott, 705 F.3d at 724 (cleaned up). Those
facts are (1) when Brumitt appeared intoxicated, Smith asked
if he was okay and sought his identification; (2) Brumitt dared
Smith to take him to jail, cursed at him, and although he was
drowsy and uncoordinated, hit Smith in the face with his
hand; and (3) Smith responded to that surprise attack with
substantial force—four quick punches in four seconds. We
will assume that Smith could have interrupted his delivery of
force to see Brumitt appear limp. But to conclude that Smith
clearly violated Brumitt’s right to be free from excessive force,
we must assume that a reasonable officer in Smith’s position
would know instantaneously that Brumitt was unconscious
and react accordingly within less than four seconds. Brumitt
has not, however, identified a case establishing that an officer
must do so and must cease force at the precise second a sus-
pect acquiesces. To the contrary, we “give considerable lee-
way to law enforcement officers’ assessments about the ap-
propriate use of force in dangerous situations.” Id. at 724–25
(quotation omitted).

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8 No. 23-1321
Smith also correctly argues that framing the right as the
right to be free from force once subdued is impermissibly
broad. The Supreme Court and this court have reiterated that
a right is clearly established only if it is clear that “the officer’s
conduct in the particular circumstances before him” is prohib-
ited. District of Columbia v. Wesby, 583 U.S. 48, 63 (2018);
see Thompson v. Cope, 900 F.3d 414, 421–22 (7th Cir. 2018). This
applies to excessive-force cases. See Strand, 910 F.3d at 915.
Although Brumitt need not point to an identical case,
see Thompson, 900 F.3d at 422, “every reasonable officer must
have understood that” Smith’s conduct was unlawful, McGee,
55 F.4th at 572. But the principle that officers may not use
force on a subdued suspect does not clearly establish that of-
ficers must repeatedly reevaluate their use of force through-
out an encounter lasting a few seconds to avoid applying ex-
tra units of force immediately after a suspect submits. Like-
wise, the other broad principle that Brumitt invokes—force
must be proportionate to a threat—did not put Smith on no-
tice that four fast punches in response to a suspect’s unpro-
voked blow to an officer’s face is disproportionate to that
blow.
The cases that Brumitt cites, including Strand v. Minchuk,
910 F.3d 909 (7th Cir. 2018), and Becker v. Elfreich, 821 F.3d 920
(7th Cir. 2016), do not show that Smith violated clearly estab-
lished law. In both Strand and Becker, we observed the general
principle that an officer should not continue using force after
a suspect is subdued. But Strand involved an officer who shot
a suspect after the suspect (who had punched the officer) had
already voiced his surrender and stood with his hands in the
air for up to 15 seconds. See Strand, 910 F.3d at 912, 917. By
contrast, Smith did not shoot Brumitt, and Brumitt had not
voiced his surrender, nor had he made any prolonged gesture

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No. 23-1321 9
indicating his surrender. And in Becker, an officer allowed his
trained attack dog to bite a suspect for “up to three minutes”
after the suspect, who never struck the officer, had surren-
dered with his hands above his head. 821 F.3d at 927, 929 n.2.
We explicitly noted that—in finding qualified immunity was
improper—the case did “not involve a split-second delay” but
rather a significant amount of time. Id. at 929 n.2. Again, Bru-
mitt struck Smith, and Brumitt did not make any gesture in-
dicating his surrender. And Smith’s use of force did not occur
over a significant amount of time. There were fewer than four
seconds between the moment Brumitt went limp and the mo-
ment Smith stopped using force. No case clearly establishes
that a reasonable officer must reassess his force that quickly.
Smith is therefore entitled to qualified immunity.
Brumitt offers several replies, but they do not persuade us.
First, he argues that whether Smith had the chance, during his
four-second use of barehanded force, to recalibrate it after
Brumitt lost consciousness is a factual question. See Strand,
910 F.3d at 916; see also Tolliver v. City of Chicago, 820 F.3d 237,
246 (7th Cir. 2016) (describing whether there was a “natural
breaking point” between the first and later uses of force as “a
factual matter”). But, as we have discussed, even if a jury re-
solved this question in Brumitt’s favor, the problem remains
that no clearly established law required Smith to recalibrate the
force throughout a quick, four-second response to a suspect’s
surprise attack to his face.
Second, Brumitt contends that were we to conclude that
Smith is entitled to qualified immunity, it would establish “a
bright-line rule that any assault that takes place within a short
period of time be treated as a single use of force.” We disa-
gree. Officers must cease their use of force once a suspect is

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10 No. 23-1321
“known to be subdued.” Miller v. Gonzalez, 761 F.3d 822, 829–
30 (7th Cir. 2014). Yet they are entitled to reasonable leeway
to permit them time to perceive that the threat level has di-
minished. See Alicea v. Thomas, 815 F.3d 283, 288 (7th Cir.
2016) (“If an officer’s threat perception changes, so too should
her force calculus.”).
Next, Brumitt argues that “facts … could support the con-
clusion that the blows Smith delivered were on-the-spot pun-
ishment, not reasonably adapted to obtain or keep control”
and thus violated clearly established law. See Johnson v. Rog-
ers, 944 F.3d 966, 970 (7th Cir. 2019). But Brumitt does not ex-
plain what those facts are. It is possible that he believes that a
reasonable jury might discredit Smith’s testimony that he per-
ceived Brumitt to be a threat after Brumitt hit him, implying
that any force was excessive. But the district court concluded
that Brumitt unquestionably posed a threat to Smith by
swinging at him, and Brumitt does not challenge the validity
of that conclusion.
Finally, for the first time on appeal, Brumitt cites recent
criticism of the qualified-immunity doctrine and argues that
we should do away with it altogether. But even if this argu-
ment had been properly preserved for appellate review, we
cannot ignore settled Supreme Court precedent on the doc-
trine.
Because we conclude that Smith is entitled to qualified im-
munity, we need not address whether he used objectively rea-
sonable force. The district court had to answer that broader
question because Smith moved for summary judgment on the
merits as well as on qualified-immunity grounds. But for our
part, we do not decide the validity of Smith’s conduct under
the Fourth Amendment. We conclude only that, because

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No. 23-1321 11
Smith’s conduct did not violate Brumitt’s clearly established
Fourth Amendment rights, we must reverse the district
court’s decision denying qualified immunity. We therefore re-
mand with instructions to enter judgment in Smith’s favor on
the Fourth Amendment claim.
R EVERSED AND R EMANDED

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12 No. 23-1321
P RYOR , Circuit Judge, concurring. I join the opinion of the
court. I am compelled to write separately, however, to empha-
size why I understand today’s holding to be a narrow one.
Sergeant Sam Smith knocked Charles Brumitt uncon-
scious. Sergeant Smith then struck Brumitt in the face several
more times. It is blackletter law that “police officers cannot
continue to use force once a suspect is subdued.” E.g., Abbott
v. Sangamon County, 705 F.3d 706, 732 (7th Cir. 2013). That law
is “well-established in this circuit.” Id. (collecting cases dating
back to 1995).
Our cases also recognize that officers need a reasonable
amount of time to realize that a suspect has been subdued be-
fore any additional force violates the constitution. Johnson v.
Scott is instructive on this issue. 576 F.3d 658 (7th Cir. 2009).
There, a suspect was fleeing police on foot and was cornered
after a fence blocked his route. Id. at 659. At that point, he put
his hands up and made a “surprising, last-second surrender,”
just as the officer—in a split-second reaction—deployed his
police dog on the suspect. Id. at 659–61. We found that the of-
ficer did not act unreasonably, even though “[i]t is well estab-
lished that a police officer may not continue to use force
against a suspect who is subdued.” Id. at 660. That’s because
“that principle depends critically on the fact that the suspect
is indeed subdued,” something that the officer could not have
known within only a second or so. Id. Implicit in Johnson is the
point that a reasonable officer must have sufficient time to
comprehend that the suspect has been subdued. See id.
This concept is also present in Strand v. Minchuk, 910 F.3d
909 (7th Cir. 2018) and Becker v. Elfreich, 821 F.3d 920 (7th Cir.
2016). In both cases, we found officers did not deserve

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No. 23-1321 13
qualified immunity because, at least in part, they had suffi-
cient time to comprehend that a suspect was subdued. In
Strand, we noted that the officer had anywhere from seven to
fifteen seconds to react to a suspect’s surrender. 910 F.3d at
917. Because of this, enough time had elapsed to make it “ob-
jectively unreasonable” for the officer “to believe that he was
in imminent danger.” Id. Similarly, in Becker, an officer saw a
suspect surrendering and allowed his police dog to bite the
suspect for “up to three minutes.” 821 F.3d at 929 n.2. We ex-
plicitly noted that the case did “not involve a split-second de-
lay” but instead featured a significant amount of time in
which the officer knew the suspect was subdued, making it
clearly established that force was unreasonable. Id. at 929 &
n.2.
In the context of this case, the gap of time between Brumitt
going limp and Sergeant Smith’s final strike was insufficient
to have put Sergeant Smith on notice that his additional force
was unreasonable. For this reason, Sergeant Smith is entitled
to qualified immunity. I caution that this case should not be
overread, lest we create a safe haven for the use of force.

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