Henry Shirley v. Lee Rabensteine

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 5, 2023*
Decided January 9, 2023
Before
DIANE S. SYKES, Chief Judge
DAVID F. HAMILTON, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 22-2147
HENRY SHIRLEY,
Plaintiff-Appellant,
v.
LEE RABENSTEINE, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Southern District of
Indiana, Indianapolis Division.
No. 1:19-cv-4111-RLM-MJD
Robert L. Miller, Jr.,
Judge.
O R D E R
Invoking 42 U.S.C. § 1983, Henry Shirley sued the Indianapolis police officers
from whom he fled while unlawfully possessing a weapon, then hid in an inaccessible
attic for hours until they restrained him with force. He accuses them of violating his
Fourth Amendment rights by using excessive force. The district judge entered summary
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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judgment for the defendants, correctly ruling that their use of force was reasonable
under the circumstances of Shirley’s resistance. We therefore affirm.
We recount the facts in the light most favorable to the plaintiff and draw all
reasonable inferences in his favor. Avina v. Bohlen, 882 F.3d 674, 676 (7th Cir. 2018). In
January 2019, a police officer pulled over Shirley’s car for a traffic stop. The officer knew
that Shirley had an outstanding arrest warrant for unlawfully possessing a firearm as a
felon, and that he was a suspect in a recent home invasion and shooting. Shirley sped
away from the stop in his car. When he later began to flee on foot, the pursuing officer
saw a gun fall out of Shirley’s car. Shirley then broke into a stranger’s house to hide.
Shirley hid in the attic of the house and resisted arrest. He lay across drywall
between wood beams. For two hours, police unsuccessfully tried to get Shirley to leave:
first they called his cell phone (he did not answer); then they used a loudspeaker to
order him to leave; and finally they used tear gas and flashbangs (stun grenades that
produce loud bangs and flashing lights). Eventually, as the defendants—members of
the Indianapolis SWAT team—entered the house, Shirley’s leg fell through the ceiling
as drywall cracked under his weight. Shirley asserts that shortly after his leg broke
through the ceiling he announced “I give up.” (The officers dispute this, but at this
stage of the case, we accept Shirley’s version as true.)
After Shirley’s leg broke through the ceiling, the police used significant force. An
officer fired a “beanbag” round (ammunition that is less likely than bullets to kill) that
hit Shirley’s exposed leg, and others ordered Shirley to surrender. Shirley withdrew his
leg back into the attic, and the officer then fired four more beanbag rounds at Shirley’s
hip, at which point the ceiling gave way and he dropped onto the floor. Shirley says
that the fall rendered him unconscious, and he remembers nothing else. The officers
assert that Shirley writhed on the ground, making arrest difficult. They also feared that
he might have another gun. To arrest him safely, two officers used a Taser twice on
Shirley (one time hitting him in the face) while another kicked him in the leg three
times. According to the officers, at that point Shirley was finally subdued. Shirley was
taken immediately to the hospital, where he received treatment for his injuries.
Shirley was charged with unlawful possession of a handgun and resisting arrest.
He pleaded guilty and received a prison sentence of five years.
Shirley then brought this § 1983 action, alleging that the police officers violated
his Fourth Amendment rights. The defendants moved for summary judgment, arguing

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that the use of force was reasonable and that the officers were entitled to qualified
immunity. The district judge declined to consider Shirley’s testimony about when he
became unconscious, faulting him for not citing his deposition in his materials opposing
summary judgment. Based on the record cited to the judge, he concluded that the
officers used reasonable force, were entitled to qualified immunity, and therefore
deserved summary judgment.
We review de novo a district court’s summary judgment award. Turner v. City of
Champaign, 979 F.3d 563, 567 (7th Cir. 2020). On appeal, Shirley argues that because he
said “I give up” when his leg broke through the ceiling, and became unconscious (and
thus, he contends, passive) after he fell, the beanbag rounds, kicks, and use of the Tasers
that he received upon falling reflect excessive force. The officers respond that because
Shirley had actively resisted arrest for hours, and they reasonably feared he had a gun
(because of the outstanding warrant and the gun they saw fall from Shirley’s car), the
force was reasonable.
A claim for excessive force under § 1983 invokes the Fourth Amendment's
protection against unreasonable seizures. The standard is objective, “judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.” Graham v. Connor, 490 U.S. 386, 396 (1989). It requires a fact-intensive
inquiry into the totality of the circumstances, including the severity of the crime,
potential threats to the safety of officers or bystanders, and whether the plaintiff was
actively resisting arrest. Turner, 979 F.3d at 567.
Based on the undisputed facts, at the time that the officers used significant force,
their actions were reasonable under the circumstances. At that time, the officers knew
that Shirley—a felon wanted on charges of unlawful possession of a gun, suspected in a
recent shooting, and observed earlier that day with a gun—had fled from police by car
and foot and broken into a home’s attic to hide. Moreover, for two hours, entreaties to
surrender and the use of lesser force (teargas and flashbangs) had failed to quell his
resistance. Finally, when the officers saw Shirley’s leg break through the ceiling’s
drywall, followed by his entire body dropping to the floor, they could reasonably fear
that he would continue his active flight and resistance, potentially with a gun. That
reasonable fear permitted them to respond with the significant force they used.
It is true that using potentially deadly force against a passively resisting suspect
who makes no attempt to flee is excessive. See Phillips v. Comm. Ins. Corp., 678 F.3d 513,
524 (7th Cir. 2012). Contrary to the district court’s approach to the record, we consider

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Shirley’s assertion that he said, “I give up” and became unconscious when he fell to the
floor. The defendants submitted and cited this portion of Shirley’s deposition testimony
in their motion for summary judgment. The district court was aware of it even if Shirley
himself did not also cite it. Shirley may thus ask us to rely on it in reviewing summary
judgment. But even when we consider this testimony, the norm that officers should not
use deadly force against a subdued suspect does not help Shirley because it “depends
critically on the fact that the suspect is indeed subdued.” Johnson v. Scott, 576 F.3d 658,
660 (7th Cir. 2009). In Johnson, we explained that officers reasonably used violent force
on a fleeing suspect, even though he suddenly said, “I give up,” because they could not
readily determine if the suspect’s apparent surrender mid-chase was sincere. See id.
Likewise, the officers here had ample reason to doubt that Shirley—who had actively
resisted arrest for hours by car, by foot, and by hiding, who was suddenly dropping
onto them from the ceiling, and who might be armed—was sincere. And even if Shirley
was unconscious after he fell, the officers’ unrebutted testimony that he continued
thrashing on the ground suggests that a reasonable officer would perceive that Shirley
was still resisting arrest. Thus, even under Shirley’s version of the events, the use of
force was not unreasonable under the circumstances.
We AFFIRM the judgment of the district court.

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