Frederick D. Jackson v. City of Madison

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 24-2104
F REDERICK D. J ACKSON ,
Plaintiff-Appellant,
v.
C ITY OF M ADISON , et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 22-cv-689 — James D. Peterson, Chief Judge.
____________________
A RGUED DECEMBER 4, 2024 — DECIDED M AY 28, 2026
____________________
Before HAMILTON , JACKSON -A KIWUMI , and P RYOR , Circuit
Judges.
PRYOR , Circuit Judge. Frederick Jackson appeals the dismis-
sal of his constitutional claims, brought under 42 U.S.C.
§ 1983, against the City of Madison, Wisconsin and six of its
police officers. Officers broke the windows and front door of
the home Jackson was occupying and shot him multiple times
with non-lethal foam bullets, causing widespread bruising on
Jackson’s abdomen and left shoulder. The district court

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2 No. 24-2104
concluded that the undisputed facts showed that officers did
not violate clearly established law and were therefore entitled
to qualified immunity. We agree with the district court and
affirm.
I. BACKGROUND
A. Facts
We review a district court’s decision to grant summary
judgment de novo. James v. Hale, 959 F.3d 307, 314 (7th Cir.
2020). In so doing, “we must construe the facts in favor of the
nonmovant”—here, Jackson—“and may not make credibility
determinations or weigh the evidence.” McCottrell v. White,
933 F.3d 651, 655 (7th Cir. 2019) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986)). A portion of the following
statement of facts relies on body camera footage from officers
on scene. This evidence was made available to the district
court and to us.
The incident in question took place on the night of Decem-
ber 13, 2019, and early morning of December 14, 2019, in Mad-
ison, Wisconsin. Jackson was visiting his then-wife, Sherry,
whom he was in the process of divorcing. The house was
owned by Sherry. Jackson drank heavily during his visit,
prompting Sherry to leave the home and take Jackson’s keys
with her. Around 7:35 p.m., Jackson went to his next-door
neighbor’s home to ask for a ride, but the neighbor, Tim
Mitkos, refused because he had guests over. Jackson left and
right afterwards, Mitkos called 911 to report hearing a gun-
shot, and that he thought it was possible Jackson had fired a
gun. However, Mitkos did not actually see a gun being fired
and reported that a car had driven by around the same time.

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No. 24-2104 3
Around 7:40 p.m., Madison (Wisconsin) Police Depart-
ment Sergeant Javier Loredo (and five other officers not
named as defendants) were dispatched to the Jackson home
based on Mitkos’s report. Loredo and the officers parked
down the street. As he got out of his car, Loredo thought he
heard gunshots coming from the direction of the Jackson
home (though he could not actually see the home). A second
officer, Officer Brad Frias, heard a pop from the direction of
the Jackson home; he thought it sounded like a gunshot or at
least something that warranted more investigation. When he
heard the pop, Officer Frias could see the Jackson home: there
was a vehicle in the driveway and the garage door was open.
A third officer, Officer Max Snyder, also heard what he
thought to be a gunshot coming from the Jackson home. A
fourth officer at the scene, Officer Justin Cumley, also heard a
loud sound, but he thought it sounded more like a hammer
hitting an object than a gunshot.
As Loredo and the other officers approached the Jackson
driveway from a couple houses away, Loredo saw a man in
the driveway but could not identify him. Loredo noticed that
the man had something above his head. Next, Loredo ob-
served the man walk towards the garage and heard what
sounded like two more gunshots. Both Officer Cumley and
Officer Snyder simultaneously heard the noises and inter-
preted them as gunshots. The officers then observed the man
close the garage door and disappear into the house.
After ordering the officers on scene to set up a perimeter,
Loredo requested Madison SWAT officers, a crisis negotiator,
and an armored rescue vehicle to report to the scene. The ar-
mored rescue vehicle, known as a BearCat, arrived around
9:05 p.m. One of the officers on scene interviewed Mitkos,

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4 No. 24-2104
who repeated what he had told the 911 operator and identi-
fied Jackson. The crisis negotiation team, working from a re-
mote command post, conveyed to the officers on the scene
that Jackson suffered from alcoholism and had a “weapons
history.” Based on Mitkos’s recounting, the information from
the crisis negotiation team, and what the officers had heard
and observed, they believed they had probable cause to arrest
Jackson for disorderly conduct and recklessly endangering
safety.1 SWAT Officers Jacob Conrad and James Imoehl, two
defendants in the case, also responded to the scene.
Nearly six hours later, with on-duty SWAT team members
and a BearCat in position around the home, officers tried call-
ing Jackson in hopes of speaking to him, but received no an-
swer. Using loudspeakers in the BearCat, which was parked
in the driveway, the officers again instructed Jackson to come
out of the home, but again received no response. The an-
nouncements were given every few minutes over several
hours, and Loredo confirmed they could be heard at the back
of the residence. In addition to the announcements, law en-
forcement activated the BearCat’s emergency lights and siren.
At some point during this period, a neighbor informed the
group that there were several guns in the Jackson home,
prompting the officers to treat the incident as a barricaded
person incident. This required calling the full SWAT team,
which included three additional defendants—Officers Joseph
Weberpal, Mitchell Witt, and Rene Gonzalez.
When Jackson still did not respond to the officers’ commu-
nication attempts after many hours, officers used non-lethal
1 See W IS. S TAT. §§ 947.01 (disorderly conduct), 941.30 (reckless endanger-
ment).

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No. 24-2104 5
40 millimeter foam rounds from baton launchers to break the
windows at the back of the home. They also used the Bear-
Cat’s ram to bust down the front door. The goal was to make
their announcements more audible to Jackson. Importantly,
the decision to break the windows came from officers at the
nearby command post, not any of the named defendants.
Around 1:30 a.m., Loredo, Conrad, Witt, Weberpal, and
Gonzalez were positioned by the open front door of the Jack-
son home. A stairway leading up to a second-floor landing
was directly in line with the front door. The house was com-
pletely dark, with the only source of light being the officers’
own equipment. Jackson emerged from a hallway at one end
of the landing, where a shelf and other items were visible,
wearing nothing but boxer shorts. Officer Conrad instructed
Jackson to come down the stairs and outside with his hands
up. Jackson began yelling and gesturing at the officers from
the top of the stairs, asking them what they were doing at his
house and whether he could speak to Officer Howard Payne.
Officer Conrad told Jackson that Officer Payne was off duty,
to put his hands up, and come down the stairs. Jackson did
not comply, instead staying at the top of the stairs, yelling and
pointing at the officers, and telling them to get out of his
house. Officers could see that Jackson had nothing in his
hands. Loredo told the officers to have non-lethal 40 millime-
ter foam bullets ready, and to move closer to the front door.
Jackson continued yelling and cursing at the officers from
the top of the stairs, and Officers Gonzalez and Weberpal each

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6 No. 24-2104
fired 40 millimeter shots hitting Jackson.2 After he was shot,
Jackson screamed in pain and doubled over. Conrad then in-
structed Jackson to come down the stairs. Jackson again asked
to speak with Payne, and again Conrad told him that Payne
was unavailable but that Jackson could speak with him if he
came downstairs. Jackson slowly complied, raising his hands
and descending the stairs while continuing to curse at the of-
ficers.
When Jackson reached the bottom of the stairs, roughly 8
to 10 feet from the front door, he saw an officer stationed out-
side the kitchen window, stepped toward the kitchen win-
dow, gestured at the officer, and repeatedly yelled at the of-
ficer to shoot him. Conrad regained Jackson’s attention by
yelling his name at full volume. Conrad told Jackson to get on
his knees and turn away from the officers. Jackson refused
and continued yelling. Conrad switched his approach by tell-
ing Jackson to turn around and that everything would be ex-
plained later. Confusingly, however, Officer Gonzalez re-
peated Conrad’s earlier command for Jackson to get on his
knees. Jackson lowered his hands, took two steps to his right,
and began to yell at and gesture towards the officers again.
Conrad again told Jackson to turn around and that the officers
would “explain it all.” Jackson did not turn around or get on
his knees; instead, body camera footage shows him looking at
the wound on his left shoulder. At that moment, Gonzalez
shot Jackson with another 40 millimeter foam bullet. Jackson
screamed in pain and turned away from the officers, at which
2 Although Jackson disputed how many times he was hit at the top of the
stairs, the district court found that Jackson was hit twice—once on the left
shoulder and once on the abdomen, and Jackson concedes this finding
does not affect the analysis.

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No. 24-2104 7
point they tackled and arrested him. Jackson was later
charged with being a felon in possession of a firearm, in vio-
lation of 18 U.S.C. § 922(g)(1). He was ultimately acquitted.
B. Procedural History
Invoking 42 U.S.C. § 1983, Jackson sued the City of Madi-
son, Sergeant Loredo, and Officers Conrad, Weberpal, Gon-
zalez, Imoehl and Witt for violating his Fourth and Four-
teenth Amendment rights. He raised a litany of claims. Jack-
son alleged that Loredo had ordered the officers to use baton
launchers to break the window of his house. He also alleged
that Weberpal and Gonzalez used excessive force when they
shot him with 40 millimeter foam rounds, and that Conrad,
Witt, Imoehl, and Weberpal used excessive force when they
tackled and handcuffed him. He also alleged that the officers
failed to intervene to prevent their colleagues’ use of excessive
force. And he alleged that Loredo and the officers’ actions re-
sulted both in physical injury and property damage. Alt-
hough Jackson did not formally assert a warrantless arrest
claim, the district court concluded that such a claim was
“awkwardly pleaded” and analyzed it on the merits without
resolving whether the defendants had fair notice of the claim.
Finally, Jackson also brought a municipal liability claim
against the City of Madison under Monell v. Department of So-
cial Services of New York, 436 U.S. 658 (1978). Jackson sought
both compensatory and punitive damages in connection with
his claims.
The district court granted summary judgment to the de-
fendants on all claims. The court concluded that exigent cir-
cumstances justified Jackson’s warrantless arrest. The court
denied Jackson’s property damage claim because none of the
named defendants had been involved in breaking the

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8 No. 24-2104
windows and the command had come from officers at a
nearby command post and not Loredo. And the court con-
cluded that the officers were entitled to qualified immunity
on the excessive force and failure to intervene claims.
On appeal, Jackson drops the Monell claim against the City
and the excessive force claims related to the arrest itself. He
maintains his claim that Weberpal and Gonzalez used exces-
sive force when they shot him with foam rounds, as well as
his warrantless arrest claim. He also purports to maintain his
property damage and failure to intervene claims.
II. DISCUSSION
We review a district court’s entry of summary judgment
de novo, viewing the facts and all reasonable inferences there-
from in the light most favorable to the non-moving party—
here, Jackson. Palmer v. Franz, 928 F.3d 560, 563 (7th Cir. 2019).
However, we do not make credibility determinations or re-
weigh the evidence. McCottrell, 933 F.3d at 655. We discuss
Jackson’s failure to intervene, property damage, warrantless
arrest, and excessive force claims in turn.
A. Failure to Intervene and Property Damage Claims
We discuss Jackson’s failure to intervene and property
damage claims together because Jackson has waived both
claims.
A failure to intervene claim, which sounds in the Fourth
and Fourteenth Amendments, requires proving that an “of-
ficer had reason to know: (1) that excessive force was being
used, (2) that a citizen has been unjustifiably arrested, or
(3) that any constitutional violation has been committed by a
law enforcement official; and the officer had a realistic oppor-
tunity to intervene to prevent the harm from occurring.”

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No. 24-2104 9
Lanigan v. Vill. of East Hazel Crest, 110 F.3d 467, 477 (7th Cir.
1997) (emphasis in original) (quoting Yang v. Hardin, 37 F.3d
282, 285 (7th Cir. 1994)).
Instead of engaging with these elements, Jackson’s brief
addresses the officers’ alleged failure to intervene in a single
vague and conclusory sentence: “At the time these actions oc-
curred other officers could have intervened to prevent them,
but did not do so.” This clipped assertion ignores our re-
peated admonition that “undeveloped arguments, and argu-
ments that are unsupported by pertinent authority, are
waived (even where those arguments raise constitutional is-
sues).” United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir.
1991); see also, e.g., Moderson v. City of Neenah, 137 F.4th 611,
616–17 (7th Cir. 2025); Fields v. City of Chicago, 981 F.3d 534,
547 (7th Cir. 2020); Hernandez v. Cook Cnty. Sheriff’s Off., 634
F.3d 906, 913–14 (7th Cir. 2011). We therefore do not discuss
Jackson’s failure to intervene claim any further.
Jackson’s property damage claim fails for similar reasons.
Like failure to intervene claims, claims against state police of-
ficers for property damage sound in the Fourth and Four-
teenth Amendments. Colbert v. City of Chicago, 851 F.3d 649,
657 (7th Cir. 2017). Plaintiffs raising such claims must show a
causal connection between the property damage and the of-
ficers they have sued. Id. Jackson’s opening brief says the fol-
lowing about property damage:
Because Loredo was the officer in charge on the
scene he is responsible for the damage to the
home irrespective of the command center’s or-
der to break the windows and door because he
had an opportunity to prevent the harm. Smith
v. Rowe, 761 F.2d 360, 369 (1985) (supervisor

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10 No. 24-2104
liability under § 1983 when failed to take pre-
ventative action).
Again, we consider “skeletal” arguments like this to be
waived. Hernandez, 634 F.3d at 913. Jackson asserts that
Loredo is liable as a supervisor even though he concedes that
Loredo did not give the order to break the windows and door
to the home. Yet, despite pointing to Smith v. Rowe, Jackson
does not even attempt to argue that Loredo “act[ed] or fail[ed]
to act with a deliberate or reckless disregard of [Jackson’s]
constitutional rights,” or that the conduct occurred at
Loredo’s “direction or with [his] knowledge and consent.”
761 F.2d 360, 369 (7th Cir. 1985) (quoting Crowder v. Lash, 687
F.2d 996, 1005 (7th Cir. 1982)). Worse still, Jackson’s opening
brief ignores the fact that the home did not even belong to
Jackson in the first place: it belonged to his then-wife, Sherry.
Although Sherry may have a colorable property damage
claim, Jackson points to no authority supporting the notion
that he may sue under § 1983 to recover for damage to prop-
erty that isn’t his. In his reply brief, Jackson attempts to ad-
dress this flaw by pointing to Wisconsin marital property law,
but “arguments raised for the first time in a reply brief are
waived,” Darif v. Holder, 739 F.3d 329, 336 (7th Cir. 2014), and
besides, the “niceties of property or marital law” are “far re-
moved from the concerns of the Fourth Amendment,” United
States v. Rodriguez, 888 F.2d 519, 523 (7th Cir. 1989).
Because Jackson has waived his failure to intervene and
property damage claims, we reject each.
B. Warrantless Arrest
Next is Jackson’s claim that his warrantless arrest violated
the Fourth Amendment. In response, the defendants argue

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No. 24-2104 11
that the warrantless arrest was constitutional because of exi-
gent circumstances. It is true that exigent circumstances can
justify a warrantless entry into a home for the purpose of ei-
ther arrest or search. Minnesota v. Olson, 495 U.S. 91, 100
(1990). But exigent circumstances, without more, do not jus-
tify the arrest or search. Indeed, exigent circumstances or not,
Jackson’s arrest still needed to be supported by probable
cause to be constitutional. Jones by Jones v. Webb, 45 F.3d 178,
181 (7th Cir. 1995). Jackson challenges the presence of proba-
ble cause in the first place, so we begin there before turning to
exigent circumstances.
1. Probable cause
“Probable cause to justify an arrest exists if the totality of
the facts and circumstances known to the officer at the time of
the arrest would warrant a reasonable, prudent person in be-
lieving that the arrestee had committed, was committing, or
was about to commit a crime.” Abbott v. Sangamon County, 705
F.3d 706, 714 (7th Cir. 2013). The inquiry is objective, com-
monsense, and focuses on what the officer knew at the time.
Id. We ask how the facts would have appeared to a reasonable
person in the officers’ shoes, “seeing what he saw, hearing
what he heard.” Id. (quoting Carmichael v. Vill. of Palatine, 605
F.3d 451, 457 (7th Cir. 2010)). Probable cause requires more
than a hunch, but it does not demand that it was more likely
than not that a criminal activity occurred—the officer’s belief
“need only be reasonable.” Id.
Jackson was arrested for disorderly conduct and reckless
endangerment. See W IS . S TAT. §§ 947.01 (disorderly conduct),
941.30 (reckless endangerment). We conclude, based on what
officers saw and heard on the night in question, there was suf-
ficient probable cause for his arrest. Recall that officers

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12 No. 24-2104
arrived at the scene after Jackson’s neighbor, Mitkos, who had
just seen Jackson, called 911 and reported hearing what
sounded like gunshots coming from the Jackson residence.
Upon arrival, four officers heard loud noises coming from the
direction of the Jackson home, and three of them thought the
noises sounded like gunshots. Loredo and Cumley both re-
ported seeing a man standing near the garage in Jackson’s
driveway raise something above his head, at which point they
heard additional loud, gunshot-like bangs. Soon after, officers
learned from the command post that Jackson suffered from
alcoholism and had a “weapons history.” It was reasonable
for the officers to believe—based on what they heard from
Mitkos and the command center, and what they perceived
with their own eyes and ears—that Jackson “had committed,
was committing, or was about to commit a crime.” Abbott, 705
F.3d at 714.
Jackson argues that the officers lacked probable cause be-
cause they lied about hearing what they thought were gun-
shots coming from the direction of Jackson’s garage. He
points out that subsequent investigation revealed no shell cas-
ings on the scene, and that he was subsequently acquitted on
charges of being a felon in possession of a firearm based on
the incident. Thus, according to Jackson, a reasonable jury
could conclude that Loredo and Cumley lied about seeing a
man in the driveway and lied about hearing loud bangs that
sounded like gunshots in their police reports. In Jackson’s
eyes, the officers’ credibility therefore presents a factual ques-
tion for a jury requiring us to vacate the district court’s entry
of summary judgment for the defendants.
Jackson’s arguments do not persuade us. We have repeat-
edly explained that the probable cause inquiry focuses “on

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No. 24-2104 13
what the officer knew at the time of the arrest.” Abbott, 705 F.3d
at 714 (emphasis added). “[W]e do not view probable cause
determinations with hindsight.” Guzman v. City of Chicago, 565
F.3d 393, 396 (7th Cir. 2009). Accordingly, “[f]acts later dis-
covered cannot support probable cause; nor can they detract
from it.” United States v. Hansmeier, 867 F.3d 807, 811 n.1 (7th
Cir. 2017) (citing Devenpeck v. Alford, 543 U.S. 146, 152 (2004)).
Similarly, “[s]ubsequent evidence of guilt cannot validate the
probable cause determination, nor can evidence of innocence
invalidate it.” United States v. Reed, 443 F.3d 600, 603 (7th Cir.
2006). In line with these principles, neither Jackson’s later ac-
quittal nor the results of any subsequent investigations are
relevant to the probable cause inquiry—so long as the officers
reasonably believed, at the time of arrest, that probable cause
existed.3 See Sroga v. Weiglen, 649 F.3d 604, 609–10 (7th Cir.
2011).
Jackson’s assertions that the defendant officers were lying
when they said they heard gunshot-like sounds coming from
Jackson’s driveway are similarly unpersuasive. First, this
argument is waived because Jackson did not argue to the
district court that the responding officers fabricated their
police reports. See Cooper v. Retrieval-Masters Creditors Bureau,
Inc., 42 F.4th 675, 688 (7th Cir. 2022) (explaining that non-
jurisdictional arguments first raised on appeal are deemed
waived, even if “the issue may have been before the district
3 Indeed, even if probable cause did not exist at the time of arrest, “quali-
fied immunity … protects officers who reasonably but mistakenly believe
that probable cause exists.” Abbott, 705 F.3d at 714–15 (citing Hunter v. Bry-
ant, 502 U.S. 224, 227 (1991)). Thus, only by showing that an arrest was
unsupported by even arguable probable cause can a plaintiff pierce the
“added layer of protection” afforded by qualified immunity. Id.

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14 No. 24-2104
court in more general terms”) (quoting Williams v. Dieball, 724
F.3d 957, 961 (7th Cir. 2013)). Instead of arguing below that
the officers lied about hearing what they thought were
gunshots, Jackson argued that the officers could not identify
him as the person supposedly firing his gun in the driveway,
and that, at most, he fired shots into the rafters of his garage.
Jackson’s theory that the officers lied about even hearing
suspicious sounds in the first place is a novel argument made
for the first time on appeal and is therefore waived. This
waiver principle is especially apt with new factual and
evidentiary arguments, for which a reviewing court may
benefit from the trial court’s analysis of the arguments, in
contrast to pure questions of law. Yee v. City of Escondido, 503
U.S. 519, 534–35 (1992).
Indeed, even if not waived, Jackson’s argument that the
officers lied in their reports is negated by Jackson’s own fac-
tual admissions before the district court. Jackson admitted
that Loredo “heard what he believed to be gunshots coming
from the area of” the Jackson home, and that “he thought they
were coming from” the Jackson house because he knew offic-
ers had been dispatched there after reports of gunfire.4 He
also admitted that other officers shared their observations, in-
cluding that they too thought they heard gunfire, with
Loredo.5 And he further admitted that Frias heard a pop that
he “interpreted” as “a gunshot, or, at a minimum, something
that warranted further investigation”; that, at the time of the
pop, Frias could see that the Jackson home had a vehicle in
4 District Court Dkt. 49, Defs.’ Reply to Pl.’s Resp. to Defs.’ Statement of
Facts, ¶ 20.
5 Id. ¶ 31.

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No. 24-2104 15
the driveway and the garage door was open; that Frias later
heard a second pop “which he thought sounded like a gun-
shot” when he stepped away to interview the 911 caller, at
which point Frias noticed that the garage door was closed;
and that Snyder, who was standing in the front yard, also
heard a second gunshot-like sound, which he noticed came
from the same area as the first sound.6
Stipulations by a party are binding and may not be con-
troverted at trial or on appeal. Neita v. City of Chicago, 148 F.4th
916, 927 (7th Cir. 2025). Thus, Jackson “is bound by his admis-
sions” before the district court. Williams v. Airborne Exp., Inc.,
521 F.3d 765, 766 (7th Cir. 2008); Keller v. United States, 58 F.3d
1194, 1198 n.8 (7th Cir. 1995). Those admissions support our
conclusion that the officers had probable cause to arrest Jack-
son.
2. Exigent circumstances
We turn now to exigent circumstances. Warrantless ar-
rests inside one’s home or residence are presumptively un-
constitutional unless the police can show exigent circum-
stances or consent. Steagald v. United States, 451 U.S. 204, 211–
12 (1981). This is so even “when probable cause is clearly pre-
sent.” Payton v. New York, 445 U.S. 573, 589 (1980) (quoting
with approval United States v. Reed, 572 F.2d 412, 423 (2d Cir.
1978)). As a threshold matter, we note that even though Jack-
son’s wife Sherry owned the home and Jackson may not have
been living there permanently, Jackson was still protected by
the Fourth Amendment’s general prohibition on warrantless
arrests in the home absent consent or exigent circumstances
6 Id. ¶¶ 22, 23, 30, 29.

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16 No. 24-2104
because he was an overnight guest. Minnesota v. Olson, 495
U.S. 91, 98–101 (1990) (explaining that overnight houseguests
may “claim the protection of the Fourth Amendment” and af-
firming Minnesota Supreme Court’s determination that exi-
gent circumstances did not justify warrantless arrest of over-
night houseguest); United States v. Walker, 143 F.4th 889, 895–
96 (7th Cir. 2025).
Exigent circumstances arise “when there is compelling
need for official action and no time to secure a warrant.” Fitz-
gerald v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (quoting
Michigan v. Tyler, 436 U.S. 499, 509 (1978)). We ask “whether
the exceedingly strong privacy interest in one’s residence is
outweighed by the risk that delay will engender injury, de-
struction of evidence, or escape.” United States v. Diaz, 814
F.2d 454, 458 (7th Cir. 1987) (quoting United States v. Acevedo,
627 F.2d 68, 70 (7th Cir. 1980)). The “police bear a heavy bur-
den when attempting to demonstrate an urgent need that
might justify warrantless searches or arrests.” Welsh v. Wis-
consin, 466 U.S. 740, 749–50 (1984).
The exigent circumstances recognized by the Supreme
Court are “few in number and carefully delineated.” Id. at 749
(quoting United States v. U.S. District Court (Keith), 407 U.S.
297, 318 (1972)). They include: ongoing fire, hot pursuit of a
fleeing suspect, prevention of imminent destruction of evi-
dence, and the need to render emergency aid to assist persons
“who are seriously injured or threatened with such injury.”
Brigham City v. Stuart, 547 U.S. 398, 403 (2006). An officer’s ob-
jectively reasonable fear of imminent violence, including self-
harm or suicide, may also give rise to exigent circumstances.
Fitzgerald, 707 F.3d at 731–32. Although the gravity of the un-
derlying offense is a factor in determining exigency, “no

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No. 24-2104 17
exigency is created simply because there is probable cause to
believe that a serious crime has been committed.” Diaz, 814
F.2d at 459 (quoting Welsh, 466 U.S. at 753). All of this adds up
to the general rule that courts should not deem a situation
“exigent” lightly, and the burden is on the government to
make that showing. United States v. Rivera, 248 F.3d 677, 680
(7th Cir. 2001).
The defendants argue that exigent circumstances justified
Jackson’s warrantless arrest because the officers on the scene
had reasonable basis to believe that Jackson’s safety and the
safety of others in the vicinity was at risk. They remind us that
officers were responding to reports of gunfire and that they
saw and heard what they thought was a man discharging a
weapon in his garage or driveway before retreating into the
residence, where they had been told Jackson had access to
more firearms. This, according to the defendants, amounts to
an exigency justifying Jackson’s warrantless arrest. And even
if not, the defendants argue they are protected by qualified
immunity.
Jackson offers two counterarguments. First, he maintains
that there were no exigent circumstances because the officers
were lying about hearing gunshots and seeing a figure in the
driveway. As we have already explained, Jackson waived this
argument. We will not address it further.
Jackson’s second argument is a closer call. He notes that
officers had at least 5 hours between their initial arrival on the
scene and their eventual arrest of Jackson. This, argues Jack-
son, was more than enough time to obtain an arrest warrant,
so officers cannot rely on exigent circumstances to justify the
warrantless arrest. Fitzgerald, 707 F.3d at 730 (exigent circum-
stances arise when there is “compelling need to act and no

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18 No. 24-2104
time to obtain a warrant) (quoting Bogan v. City of Chicago, 644
F.3d 563, 571 (7th Cir. 2011)); cf. Kentucky v. King, 563 U.S. 452,
466–67 (2011) (“Faulting the police for failing to apply for a
search warrant at the earliest possible time after obtaining
probable cause imposes a duty that is nowhere to be found in
the Constitution.”). Indeed, Jackson asserts that the officers
did, in fact, obtain a warrant: a premises warrant for the
home, but not an arrest warrant for Jackson. Although Jack-
son does not spell it out, he implies that if officers had time to
obtain a premises warrant, they also had time to obtain an ar-
rest warrant.
This argument is likely waived because Jackson did not
make this argument in his summary judgment briefing before
the district court. Cooper, 42 F.4th at 688. More fundamentally,
it is undeveloped. Although Jackson references a premises
warrant, he does not point to it anywhere in the record, and
we could not locate it ourselves. Even if such a warrant ex-
isted, Jackson does not explain how he believes it should im-
pact our analysis. See Sheik-Abdi v. McClellan, 37 F.3d 1240,
1245 (7th Cir. 1994) (“Once an officer has lawfully entered the
premises … the Constitution does not require that he obtain a
warrant before [effecting] an otherwise lawful arrest
within.”). We cannot base our decision on undeveloped argu-
ments that lack evidence and were not presented to the dis-
trict court.
Setting aside the missing warrant, we can understand
Jackson’s frustration with the officers’ invocation of “exigent
circumstances.” But even if Jackson is correct that exigent cir-
cumstances did not exist and the defendants were constitu-
tionally required to get a warrant, we conclude the

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No. 24-2104 19
defendants are entitled to qualified immunity for their war-
rantless arrest in this instance.
Qualified immunity shields police officers from liability
for constitutional violations unless a plaintiff shows that
(1) the official violated a constitutional right, and (2) the right
was “clearly established” at the time of the challenged con-
duct. Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). When satis-
fying the second prong the right itself “must be so well de-
fined that it is ‘clear to a reasonable officer that his conduct
was unlawful in the situation he confronted.’” District of Co-
lumbia v. Wesby, 583 U.S. 48, 63 (2018) (quoting Saucier v. Katz,
533 U.S. 194, 202 (2001)). “This requires a high ‘degree of spec-
ificity,’” which is “especially important in the Fourth Amend-
ment context.” Id. at 63–64 (quoting Mullenix v. Luna, 577 U.S.
7, 12, 13 (2015) (per curiam)). That is because it is “sometimes
difficult for an officer to determine how the relevant legal doc-
trine … will apply to the factual situation the officer con-
fronts.” Mullenix, 577 U.S. at 12 (quoting Katz, 533 U.S. at 205).
“In other words, to clearly establish a right, existing prec-
edent must place the constitutional or statutory question be-
yond debate.” Sabo v. Erickson, 128 F.4th 836, 844 (7th Cir.
2025) (en banc) (quotation and citation omitted). “It is not
enough that the rule is suggested by then-existing precedent.
The precedent must be clear enough that every reasonable of-
ficial would interpret it to establish the particular rule the
plaintiff seeks to apply.” Wesby, 583 U.S. at 63. “In short, qual-
ified immunity protects ‘all but the plainly incompetent or
those who knowingly violate the law.’” Sabo, 128 F.4th at 845
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Heeding
these principles, we analyze the officers’ qualified immunity
defense to Jackson’s warrantless arrest claim.

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20 No. 24-2104
Jackson has not pointed us to binding precedent establish-
ing that exigent circumstances dissipate over the course of a
multi-hour standoff during which a suspect believed to be
armed fails to respond to police commands, such that a war-
rantless arrest of said suspect violates the Fourth Amend-
ment. Therefore, we “look to whatever decisional law is avail-
able to ascertain whether the law has been clearly estab-
lished.” McGrath v. Gillis, 44 F.3d 567, 570 (7th Cir. 1995)
(quoting Rakovich v. Wade, 850 F.2d 1180, 1209 (7th Cir. 1988)
(en banc)).
On Jackson’s side of the ledger is Minnesota v. Olson, 495
U.S. 91 (1990). In that case, a gunman robbed a gas station,
murdered the station manager, and then fled in a getaway car.
Id. at 93. Police captured the gunman and recovered the mur-
der weapon, but the driver escaped. Id. When police received
a tip that the driver was staying with two women in their
apartment, they entered the apartment without seeking per-
mission, found the driver hiding in a closet, and arrested him
without a warrant. Id. at 93–94. The driver prevailed in a chal-
lenge to the constitutionality of his warrantless arrest in the
Minnesota Supreme Court, which held that exigent circum-
stances did not justify the driver’s arrest. Id. at 94. The Minne-
sota Supreme Court reasoned that the driver was not thought
to be the murderer or armed with the murder weapon; there
was “no suggestion of danger” to the two women; the apart-
ment was surrounded by police; and “[i]t was evident the sus-
pect was going nowhere.” Id. at 100–01 (quoting State v. Olson,
436 N.W.2d 92, 97 (Minn. 1989)). The United States Supreme
Court affirmed, explaining that it was “not inclined to disa-
gree with [the Minnesota Supreme Court’s] fact-specific ap-
plication” of the exigent circumstances standard. Id. at 100.

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No. 24-2104 21
Like in Olson, the Jackson residence was surrounded by
officers, so he was unlikely to escape. See id. at 101. And Jack-
son’s alleged firing of guns into the air is far less grave of a
crime than the underlying murder and robbery in Olson. Yet,
Olson does not place “beyond debate” the question of whether
Jackson’s warrantless arrest was constitutional. Chapman, 847
F.3d at 412. The events in Olson took place in the afternoon;
Jackson’s encounter with the police occurred in the middle of
the night. Olson, 495 U.S. at 101. There were no facts in Olson
indicating that the suspected getaway driver was intoxicated
or armed. Id. at 93–94, 100–01. Jackson was believed to be
both, and to have fired a gun earlier that night. Moreover, the
Supreme Court in Olson was reviewing the decision of a state
supreme court and commented that it was “not inclined” to
“disturb the state court’s judgment” in a “fact-specific appli-
cation of the proper legal standard,” suggesting that defer-
ence to the state court’s factual analysis was a factor driving
the Court’s ultimate disposition. Id. at 100–01; see also id. at 102
(Kennedy, J., concurring) (joining opinion with understand-
ing that it should be read as “deference to a state court’s ap-
plication of the exigent circumstances test to the facts of this
case, and not as an endorsement of that particular applica-
tion”); id. at 101–02 (Stevens, J., concurring) (commenting that
“[o]nly in the most unusual case should the Court volunteer
its opinion that a state court has imposed standards upon its
own law enforcement officials that are too high”).
Falling on the opposite side of the ledger is a more recent
case from the Ninth Circuit. In Fisher v. City of San Jose, the
Ninth Circuit considered a lawsuit brought by a man, Fisher,
who pointed a rifle at a private security guard while intoxi-
cated in his apartment, triggering a more than twelve-hour
standoff with police that ended with his peaceful surrender

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22 No. 24-2104
and warrantless arrest. 558 F.3d 1069, 1070 (9th Cir. 2009) (en
banc). Officers invoked the exigent circumstances doctrine to
justify their warrantless arrest of Fisher, but Fisher argued
that the doctrine did not apply because any exigent circum-
stances dissipated over time, and the officers had ample op-
portunity to obtain a warrant. Id. at 1075–76. The Ninth Cir-
cuit sided with the officers. It held that, “once exigent circum-
stances justify the warrantless seizure of the suspect in his
home, and so long as the police are actively engaged in com-
pleting [the suspect’s] arrest, police need not obtain an arrest
warrant before taking the suspect into full physical custody.”
Id. at 1071.
The facts here fall somewhere between Olson and Fisher.
Like in Fisher, the officers entered Jackson’s home to arrest
him after a multiple hour standoff. See id. Unlike in Fisher,
however, Jackson did not point a gun at a police officer or
threaten to shoot anyone. Still, a reasonable officer may have
believed Jackson to be more of a threat than the suspect in Ol-
son. Unlike the suspect in Olson, Jackson was intoxicated,
thought to be armed, and believed to have fired a gun earlier
that night. But we need not decide today whether the defend-
ants violated Jackson’s constitutional rights because, even if
the officers acted unconstitutionally by arresting Jackson
without a warrant, the illegality of their actions “does not fol-
low immediately” from existing case law. See Wesby, 583 U.S.
at 64 (quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987));
al-Kidd, 563 U.S. at 735 (explaining that courts may grant qual-
ified immunity based on lack of clearly established law with-
out deciding the underlying constitutional question). Our
own survey of the law leads us to conclude that the right to
be free from warrantless arrest in the context of a prolonged
police standoff during which officers reasonably believed the

-- 22 of 41 --

No. 24-2104 23
suspect to be armed and dangerous was not clearly estab-
lished at the time of Jackson’s arrest in December 2019.
We therefore affirm the district court’s grant of summary
judgment for the defendants on the warrantless arrest claim.
C. Excessive Force
We turn to excessive force. “We analyze excessive force
claims under the Fourth Amendment’s ‘reasonableness’
standard.” Becker v. Elfreich, 821 F.3d 920, 925 (7th Cir. 2016).
An officer’s use of force is unconstitutional if, considering the
totality of the circumstances, “the officer used greater force
than was reasonably necessary to make the arrest.” Id. (quot-
ing Payne v. Pauley, 337 F.3d 767, 778 (7th Cir. 2003)). The rea-
sonableness inquiry turns on the “severity of the crime at is-
sue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether [the suspect] is
actively resisting arrest or attempting to evade arrest by
flight.” Miller v. Gonzalez, 761 F.3d 822, 828–29 (7th Cir. 2014)
(quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). Critically,
courts assess reasonableness from the perspective of the of-
ficer on the scene, factoring in “the information known to the
officer at the time of the encounter; the duration of the en-
counter; the level of duress involved; ‘and the need to make
split-second decisions under intense, dangerous, uncertain,
and rapidly changing circumstances.’” Siler v. City of Kenosha,
957 F.3d 751, 759 (7th Cir. 2020) (quoting Horton v. Pobjecky,
883 F.3d 941, 950 (7th Cir. 2018)); see also Graham, 490 U.S. at
396–97. If the material facts are undisputed and the court
draws the appropriate inferences in favor of the non-moving
party, then reasonableness is a question of law for the court.
Siler, 957 F.3d at 759.

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24 No. 24-2104
Jackson argues that Weberpal and Gonzalez used exces-
sive force when they shot him three times with 40 millimeter
foam bullets, twice at the top of stairs, and once more at the
bottom of the stairs.7 The district court concluded that the of-
ficers were entitled to qualified immunity for all three shots.
We reiterate that to defeat qualified immunity, a plaintiff
must point us to law that is established clearly enough “that
every reasonable official would interpret it to establish the
particular rule the plaintiff seeks to apply.” Wesby, 583 U.S. at
63. In an excessive force case, a plaintiff can show clearly es-
tablished law by identifying a “closely analogous case that es-
tablished a right to be free from the type of force the police
officers used on him.” Cibulka v. City of Madison, 992 F.3d 633,
639 (7th Cir. 2021) (quoting Weinmann v. McClone, 787 F.3d
444, 450 (7th Cir. 2015)). Although the case need not be pre-
cisely on point, it must be a case “where an officer acting un-
der similar circumstances … was held to have violated the
Fourth Amendment.” White v. Pauly, 580 U.S. 73, 79 (2017).
“Use of excessive force is an area of the law ‘in which the re-
sult depends very much on the facts of each case,’ and thus
police officers are entitled to qualified immunity unless exist-
ing precedent ‘squarely governs’ the specific facts at issue.”
Kisela v. Hughes, 584 U.S. 100, 104 (2018) (per curiam) (quoting
Mullenix, 577 U.S. at 13). As such, the Supreme Court has em-
phasized the need for “[p]recedent involving similar facts.”
Id. at 105.
7 Jackson also states in a conclusory fashion that officers used excessive
force in handcuffing him. Because Jackson does not develop this argu-
ment, we consider it waived and do not address it further. Berkowitz, 927
F.2d at 1384.

-- 24 of 41 --

No. 24-2104 25
Alternatively, a plaintiff may defeat qualified immunity
by arguing that, even without an analogous case, the use of
force “was so plainly excessive that, as an objective matter,
the police officers would have been on notice that they were
violating the Fourth Amendment.” Cibulka, 992 F.3d at 639
(quoting Weinmann, 787 F.3d at 450). But this argument suc-
ceeds only in “rare” instances.8 Wesby, 583 U.S. at 64.
Jackson argues against qualified immunity both by offer-
ing analogous case law and by maintaining in the alternative
that Gonzalez’s and Weberpal’s use of force was “so plainly
excessive that [they] knew that it was unconstitutional.” The
latter argument is waived because Jackson failed to raise it be-
fore the district court. Cooper, 42 F.4th at 688; Jackson v. City of
Madison, No. 22-cv-689, 2024 WL 2803326, at *7 (W.D. Wis.
May 31, 2024) (“Jackson does not argue that the force used in
this case was so plainly excessive that the defendants knew
that it was unconstitutional.”). Therefore, Jackson’s only path
to success is to put forward a closely analogous case clearly
establishing that the use of 40 millimeter foam rounds by
Gonzalez and Weberpal “was unlawful in the situation [they]
confronted.” Katz, 533 U.S. at 202.
Jackson points to several cases that, according to him,
clearly establish the unconstitutionality of the officers’ use of
force at the top of the stairs. Many of them are non-starters.
Strand v. Minchuk involved an officer’s use of deadly force
against a truck driver, who, after physically fighting with the
8 For example, we held that it was plainly unconstitutional, even absent
factually analogous case law, for an officer 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).

-- 25 of 41 --

26 No. 24-2104
officer over parking tickets, stepped back and twice said “I
surrender.” 910 F.3d 909, 911–12 (7th Cir. 2018). Ellis v.
Wynalda involved the use of deadly force against a fleeing
burglar. 999 F.2d 243, 245 (7th Cir. 1993). Neither case is
analogous enough to ours to satisfy the “clearly established
law” requirement. Not only are their contexts materially
different, but each also involves the use of deadly force. As
Jackson points out, we have acknowledged that non-lethal
rounds fall on “the high-end of the spectrum of less-lethal
force” and that non-lethal force “is not to be deployed
lightly.” Phillips v. Community Ins. Corp., 678 F.3d 513, 522 (7th
Cir. 2012) (citation omitted). But even so, courts distinguish
between lethal and non-lethal force when seeking out clearly
established law regarding the use of non-lethal force. See
Omdahl v. Lindholm, 170 F.3d 730, 733–34 (7th Cir. 1999)
(remanding for jury to resolve whether bean bag rounds
counted as “deadly force or merely a higher level of force
along a ladder of escalating force,” a question that would
determine whether the defendant-officers were entitled to
qualified immunity); Phillips, 678 F.3d at 529–30 (analyzing
qualified immunity question in case involving non-lethal
bullets by looking to case law involving non-lethal force);
Mercado v. City of Orlando, 407 F.3d 1152, 1158–61 (11th Cir.
2005) (same).
Estate of Escobedo v. Bender, a non-lethal force case, also
does not help Jackson. 600 F.3d 770 (7th Cir. 2010). In that case,
we denied qualified immunity to officers who, in attempting
to extricate a suicidal man from his home, used “twelve times
the incapacitating amount of tear gas,” blindly launched a
flash bang grenade into the home (which caused a fire after
interacting with the tear gas), detonated another flash bang
grenade mere feet from the suicidal man, and eventually shot

-- 26 of 41 --

No. 24-2104 27
him as he was setting down his gun. Id. at 777, 783. After sur-
veying cases involving the use of tear gas and pepper spray
on non-prisoners from our Circuit and others, we held that
the officers were not entitled to qualified immunity for their
excessive use of tear gas and flash bang grenades because,
among other things, the suicidal man was alone, had not
threatened anyone else, had not committed a crime, was not
holding hostages, and was not causing a large disturbance. Id.
at 783–84. By contrast, the officers here had probable cause to
believe Jackson was armed and had fired a weapon into the
air hours earlier. Moreover, the use of force in Escobedo, which
involved extreme amounts of tear gas and flash bang gre-
nades detonated at close range, is too different from the pro-
jectiles officers fired at Jackson for Escobedo to supply the
clearly established law in this case. Escobedo itself demon-
strates this by relying on cases involving tear gas and pepper
spray instead of non-lethal bullets. Id.
Jackson’s arguments gain traction with Phillips v.
Community Insurance Corp., 678 F.3d 513 (7th Cir. 2012). In
Phillips, we held that police officers were not entitled to
qualified immunity when they fired four non-lethal bullets at
a non-responsive, highly intoxicated driver in a stationary car
who “presented no immediate threat” and “made no attempt
to flee or even avoid police fire.” 678 F.3d at 517–18, 529. The
driver, Phillips, was driving while severely intoxicated,
backed her car into a hedge, dangled both feet out of her car,
and smoked a cigarette in her car as officers yelled at her to
get out. Id. at 517–18. Even though she was so intoxicated she
could barely move, officers shot her four times in the legs with
non-lethal bullets; she ended up with thirty stitches and
walked with a cane for three weeks. Id. In assessing whether
the officers were entitled to qualified immunity, we asked

-- 27 of 41 --

28 No. 24-2104
whether “it was clearly established … that multiple trauma-
inducing shots would constitute excessive force when used to
secure a non-resisting, intoxicated arrestee.” Id. at 528. We
answered “yes,” concluding that the officers were not entitled
to qualified immunity because they “should have known that
it was unlawful to … use such a significant level of force on a
nonresisting or passively resisting individual.” Id. at 529
(citing Rambo, 68 F.3d at 207 (no qualified immunity when
officer physically injured suspect who was verbally resisting
arrest); and St. John v. Hickey, 411 F.3d 762, 772–75 (6th Cir.
2005) (same)).
Jackson argues that he, too, was either complying or, at
most, passively noncompliant, so the defendants should be
denied qualified immunity under Phillips. Viewing the facts
in Jackson’s favor, as we must, we see some similarities be-
tween the facts here and Phillips. Like Phillips, Jackson did not
threaten any of the officers, and although he was “verbally
resisting” by cursing at the officers, he was not violent or as-
saultive. In fact, after being shot twice, he complied with com-
mands to come down the stairs.
Ultimately, however, we see too many material differ-
ences between Phillips and the facts here for Phillips to consti-
tute clearly established law as applied to the undisputed facts
here. As the defendants point out, critical to our reasoning in
Phillips was the fact that “any threat [Phillips] presented had
already been substantially contained” by the time the officers
decided to shoot her. Phillips, 678 F.3d at 525. That is not the
case here. Officers had probable cause to believe that Jackson
had access to multiple firearms and that he had fired a gun
earlier that night. From the upstairs landing, Jackson could
have retreated into a side room or grabbed a weapon

-- 28 of 41 --

No. 24-2104 29
potentially on the shelf near the railing. By contrast, to even
start her car and become a threat to the officers in Phillips,
Phillips, who was lying down, “would have had to, at a min-
imum, sit up, bring her feet in, close the car door, and press
the gas pedal.” Id. at 525. Looking to the facts of this case, Phil-
lips is not analogous enough to satisfy the “clearly established
law” requirement. Id. at 528–29. So, the officers are entitled to
qualified immunity for their use of force at the top of the
stairs.
We acknowledge that when Jackson came downstairs in
boxer shorts and with nothing in his hands, he posed less of a
threat to the officers. But, when he got downstairs, Jackson
continued to act belligerently, taking several steps toward an
officer posted outside his kitchen, repeatedly gesturing and
cursing at the officers, and refusing commands. After an of-
ficer told Jackson to turn around and that they would “ex-
plain it all,” Jackson stopped moving momentarily before lift-
ing his arm to, presumably, inspect his wound. At that point,
an officer shot Jackson. In light of these facts, a reasonable jury
could find that Jackson was complying with the officers’ com-
mands in the moment he was shot.
Even so, as noted above, the facts of Phillips are too distin-
guishable to constitute clearly established law. Far from being
“sprawled across the front seat” of a vehicle 40 to 50 feet away
like the suspect in Phillips, Jackson was 8 to 10 feet away, up-
right, and, for much of the time he was downstairs, engaging
angrily with the officers. See id. at 518, 525. Whereas Phillips
was so intoxicated that she barely reacted to being hit with
non-lethal projectiles, id. at 518, Jackson walked downstairs
and took several steps towards an officer even after being hit
twice. With these significant factual differences in mind, we

-- 29 of 41 --

30 No. 24-2104
simply cannot conclude that Phillips clearly establishes that
the defendants’ use of force here was unconstitutional.
Finally, we acknowledge that Jackson points to Miller v.
Gonzalez, in which we stated that the “law is clearly estab-
lished that police officers cannot use ‘significant’ force on sus-
pects who are only passively resisting arrest” and that this
“prohibition against significant force against a subdued sus-
pect applies notwithstanding a suspect’s previous behavior—
including resisting arrest, threatening officer safety, or poten-
tially carrying a weapon.” 761 F.3d 822, 829 (7th Cir. 2014).
But the applicability of this important and clearly established
principle “depends critically on the fact that the suspect is in-
deed subdued.” Johnson v. Scott, 576 F.3d 658, 660 (7th Cir.
2009); see also Shirley v. Rabensteine, No. 22-2147, 2023 WL
129432, at *2 (7th Cir. Jan. 9, 2023). It also depends on whether
Jackson was passively resisting in the first place. The use of
non-lethal force “against an actively resisting subject either
does not violate a clearly established right or is constitution-
ally reasonable.” Dockery v. Blackburn, 911 F.3d 458, 467 (7th
Cir. 2018) (collecting cases). One example of active resistance
is “declining to follow instructions while acting in a belliger-
ent manner,” as opposed to being “docile and cooperative.”
Id. (citations omitted). Reviewing the body camera footage
and the undisputed facts in the light most favorable to Jack-
son, an officer certainly could have reasonably, but mistak-
enly, concluded that force was justified because Jackson was
“declining to follow instructions while acting in a belligerent
manner.9 Even if we accept Jackson’s contention that he was
9 Jackson presents these issues as jury questions, but absent disputed ma-
terial facts, reasonableness is a question of law for the court. Siler, 957 F.3d

-- 30 of 41 --

No. 24-2104 31
only passively resisting at the bottom of the stairs, the circum-
stances surrounding the final shot were “at most on the hazy
border between excessive and acceptable force,” requiring an
analog in case law to defeat qualified immunity for the offic-
ers. Pam v. City of Evansville, 154 F.4th 523, 532 (7th Cir. 2025).
We do not mean to explain away the officers’ actions. We
mean only to emphasize that case law does not establish “be-
yond debate” that the officers’ use of force on Jackson was
unreasonable. Reichle v. Howards, 566 U.S. 658, 664 (2012). We
emphasize that qualified immunity protects “all but the
plainly incompetent or those who knowingly violate the law.”
Sabo, 128 F.4th at 845 (quoting Briggs, 475 U.S. at 341). Even
viewing the facts in Jackson’s favor, we cannot say that the
choices to shoot Jackson with 40 millimeter foam rounds were
the decisions that only “plainly incompetent” officers would
make. Thus, we agree with the district court that the officers
are entitled to qualified immunity on Jackson’s excessive
force claim.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment in favor of the defendants.
at 759. Because the video is conclusive and unambiguous as to Jackson’s
non-compliant behavior, we can rely on it for firmly settling this fact issue.
Smith v. Finkley, 10 F.4th 725, 730 (7th Cir. 2021). As we have instructed, a
“factual account is not to be credited if it is ‘blatantly contradicted’ by the
video evidence.” Id. (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)).

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32 No. 24-2104
JACKSON -A KIWUMI , Circuit Judge, concurring in the
judgment. Frederick Jackson will not be able to present his
claims to a jury because he has not identified a prior case that
would have advised the officers that their actions were
unconstitutional. The Supreme Court’s recent decision in
Zorn v. Linton, 146 S. Ct. 926, 929 (2026), cements this as the
correct result as a matter of law. Therefore, I concur in the
judgment but note that this case highlights the tension
between qualified immunity—specifically, its “clearly
established” prong—and the Constitution.1
I.
Our role is to determine whether a trial should be held on
Jackson’s Fourth Amendment challenge to (1) the officers’
warrantless, unauthorized entry into his home to arrest him
five hours after he allegedly fired a gun, and (2) their use of
non-lethal force when he became still and silent after being
angry and belligerent. As the majority opinion concludes, the
answer is no. The reason is because Jackson has not identified
a case recognizing the rights he seeks to vindicate under the
same circumstances. Id. at 930–31. As I explain below, how-
ever, given the unique facts of Jackson’s case and the law gov-
erning his claims, it is not clear that such a case exists.
Consider first Jackson’s warrantless arrest claim. The of-
ficers interpreted Jackson’s lack of engagement with them as
a threat that warranted SWAT tactical team intervention and
justified their entry into his home. But nothing in the record
suggests that Jackson engaged in any threatening behavior in
the five hours after the officers heard the shots, or that Jackson
1 Because I agree that Jackson waived the remainder of his claims, I
focus only on his warrantless arrest and excessive force claims.

-- 32 of 41 --

No. 24-2104 33
even had reason to believe that the officers suspected him of
a crime. When the officers first saw Jackson in his driveway,
they did not alert him to their presence, give him any com-
mands, tell him that he was suspected of firing a gun, or oth-
erwise attempt to interact with him. Later, officers did at-
tempt to contact Jackson multiple times from outside his
home without success, but they do not claim that any of their
communications informed him why they were present.
From Jackson’s point of view, his only offenses were up-
setting his wife with his drunkenness, asking a neighbor for a
favor, and ignoring the officers. That separates Jackson from
the suspects in other exigent circumstances cases who either
engaged with police, were in the process of committing a
crime, or at least were aware that they had committed a crime
and given a reason for police contact. Minnesota v. Olson, 495
U.S. 91, 93–94 (1990); Fisher v. City of San Jose, 558 F.3d 1069,
1071 (9th Cir. 2009).
It is therefore no wonder that Jackson did not respond pos-
itively to the officers breaking his windows or opening his
front door to get his attention. But responding angrily to law
enforcement’s unwelcome intrusion into one’s home is not a
crime. City of Houston v. Hill, 482 U.S. 451, 462–63 (1987) (“The
Constitution does not allow such speech to be made a crime.
The freedom of individuals verbally to oppose or challenge
police action without thereby risking arrest is one of the prin-
cipal characteristics by which we distinguish a free nation
from a police state.”); Payton v. New York, 445 U.S. 573, 585
(1980) (“[P]hysical entry of the home is the chief evil against
which the wording of the Fourth Amendment is directed.”
(citation omitted)). Moreover, citizens are not required to ad-
here to police directives inside their homes without

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34 No. 24-2104
knowledge of the reason for the command. Payton, 445 U.S. at
590 (“The Fourth Amendment has drawn a firm line at the
entrance to the house. Absent exigent circumstances, that
threshold may not reasonably be crossed without a war-
rant.”).
These facts and principles are also relevant to Jackson’s ex-
cessive force claim. Drawing all inferences in Jackson’s favor
as we must, his angry response cannot be the basis for a find-
ing that he was resisting an arrest that he had no idea was to
occur. The same holds true for Jackson’s initial failure to com-
ply with officers’ demands to come downstairs. Nevertheless,
the officers cite Jackson’s behavior and his potential proxim-
ity to guns to defend their uses of force. Even if Jackson’s tem-
perament and location account for the two shots fired while
Jackson was upstairs, they cannot justify the third shot.
The officers’ body cameras captured the scene: we can
hear a barking K-9 dog and several officers giving Jackson
conflicting instructions right before the third shot. In addi-
tion, the videos confirm that Jackson (1) was downstairs in
only his boxers, (2) had nothing in his hands, and (3) had
taken two side steps in the opposite direction of the officer
who shot him the third time. Jackson had also stopped yelling
and cursing at that point. Instead, he was still, silent, and in-
specting his wound. The evidence therefore does not show
that Jackson was threatening the officers or resisting arrest as
required to justify the third shot.
To summarize, from Jackson’s perspective, he was sub-
jected to an unwelcome police intrusion on a drunken Friday
evening, never informed of the reason for the intrusion, and
shot three times while inside his wife’s home in his under-
wear. In context, some might consider Jackson’s conduct—

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No. 24-2104 35
anger at the intrusion without information, stillness in the
face of contradicting instructions, and attention to his wound
after being shot—reasonable under the circumstances.
But the reasonableness of Jackson’s behavior is of no mo-
ment for our qualified immunity review. Officers are entitled
to qualified immunity unless “(1) they violated a federal stat-
utory or constitutional right, and (2) the unlawfulness of their
conduct was ‘clearly established at the time.’” Dist. of Colum-
bia v. Wesby, 583 U.S. 48, 62–63 (2018) (citation omitted). Even
though the constitutional right against warrantless arrests
and excessive force belongs to Jackson, the first step of the
qualified immunity analysis hinges on the reasonableness of
the officers’ actions. Ziglar v. Abbasi, 582 U.S. 120, 151 (2017)
(“Whether qualified immunity can be invoked turns on the
objective legal reasonableness of the official’s acts.” (citation
omitted)). As such, Jackson is essentially excluded from con-
sideration except to the extent his actions impact the reasona-
bleness of the officers’ actions. Pam v. City of Evansville, 154
F.4th 523, 533 (7th Cir. 2025) (“[W]e rest our analysis on the
facts viewed from the vantage point of reasonable officers on
the scene.”).
Furthermore, at the second step of the qualified immunity
analysis, we can only deem the officers’ actions unreasonable
if Jackson identifies precedent recognizing that he was pro-
tected from the officers’ unconstitutional conduct under
nearly identical circumstances. Zorn, 146 S. Ct. at 931. Jackson
cannot meet that burden.
Jackson cannot meet that burden with his warrantless ar-
rest claim, even though the Supreme Court’s definition of ex-
igent and its decisions about the exception implicitly rule out
most situations involving multi-hour delays. See Lange v.

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36 No. 24-2104
California, 594 U.S. 295, 302 (2021) (explaining that exigent cir-
cumstances present a “now or never situation.” (citation omit-
ted)); id. at 301 (summarizing cases, all of them involving “a
compelling need for official action and no time to secure a
warrant” (citation omitted)). Nor can Jackson meet that bur-
den with his excessive force claim, even though we have said,
albeit under slightly distinguishable facts, that “multiple
trauma inducing shots would constitute excessive force when
used to secure a non-resisting, intoxicated arrestee.” Phillips
v. Cmty. Ins. Corp., 678 F.3d 513, 528 (7th Cir. 2012).
Stated simply, Jackson was unlikely to discover any cases
involving a multi-hour delay without communication from a
contained suspect, where a court later concluded that there
had been a need for immediate action and no time to secure a
warrant. Lange, 594 U.S. at 301. And though Jackson did dis-
cover a case announcing a rule that would cover his excessive
force claim, that case is apparently too factually dissimilar.
Jackson thus finds himself at an impasse.
II.
Jackson’s dilemma demonstrates the well-documented
tension between constitutional rights and qualified immun-
ity. See generally Green v. Thomas, 734 F. Supp. 3d 532, 558–60
(S.D. Miss. 2024) (Reeves, J.), aff’d in part, rev’d in part, 129 F.4th
877 (5th Cir. 2025) (collecting cases and articles in which
“[j]ustices, judges, advocates, and scholars have long found
fault with qualified immunity”). The Fourth Amendment
seeks to protect Jackson’s rights. U.S. C ONST. amend. IV. Its
“basic purpose” is to “safeguard the privacy and security of
individuals against arbitrary invasions by governmental offi-
cials.” Carpenter v. United States, 585 U.S. 296, 303 (2018) (em-
phasis added) (citation omitted).

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No. 24-2104 37
But the second step of the qualified immunity analysis dis-
regards the individual and instead considers only the officer’s
presumed knowledge. That reality is difficult to reconcile
with the Founders’ vision of a government in service of its cit-
izens. THE D ECLARATION OF I NDEPENDENCE para. 2 (U.S. 1776)
(“Governments are instituted among Men, deriving their just
powers from the consent of the governed.”); THE F EDERALIST
NO. 78 at 467 (“[T]he Constitution ought to be preferred to the
statute, the intention of the people to the intention of their
agents.”). That reality is also difficult to reconcile with the his-
tory and purpose of 42 U.S.C. § 1983, the vehicle by which
legions of plaintiffs like Jackson seek to remedy violations of
their constitutional rights. “The very purpose of § 1983 was to
interpose the federal courts between the States and the peo-
ple, as guardians of the people’s federal rights—to protect the
people from unconstitutional action under color of state law.”
Mitchum v. Foster, 407 U.S. 225, 242 (1972).
Equally important, qualified immunity ignores the reality
that courts interpret laws by deciding concrete disputes.
Camreta v. Greene, 563 U.S. 692, 701 (2011) (“Article III of the
Constitution grants this Court authority to adjudicate legal
disputes only in the context of ‘Cases’ or ‘Controversies.’”).
Thus, in cases involving constitutional questions, courts do
not create constitutional rights but instead recognize the
rights the Constitution has guaranteed since its inception.
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“It is
emphatically the province and duty of the judicial depart-
ment to say what the law is.”). Yet qualified immunity condi-
tions officers’ liability for constitutional violations on the ex-
istence of nearly identical precedent. Zorn, 146 S. Ct. at 931. It
shifts focus away from even the reasonableness of officers’

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38 No. 24-2104
actions to the degree of similarity between a case’s facts and
prior facts courts have seen. Id.; Ziglar, 582 U.S. at 151.
That means officers will not be held accountable for con-
stitutional violations in cases like Jackson’s that present novel
fact patterns, even if the right has been recognized more gen-
erally. In effect, qualified immunity removes protection from
citizens for rights guaranteed under the Constitution unless
those rights are implicated in all but the most often repeated
circumstances.
There is a corollary threat. When, as here, courts faced
with a qualified immunity defense choose to resolve the case
at the second step of the analysis based on the unavailability
of similar precedent, they decline to address newer or less
common ways officials violate constitutional rights. Pearson v.
Callahan, 555 U.S. 223, 236 (2009). Under this regime, some
constitutional rights may never be defined. Id. (recognizing
that defining constitutional rights “promotes the develop-
ment of constitutional precedent and is especially valuable
with respect to questions that do not frequently arise”). This
practice of constitutional avoidance in the context of qualified
immunity “threatens to leave standards of official conduct
permanently in limbo.” Camreta, 563 U.S. at 705–06 (“Courts
fail to clarify uncertain questions, fail to address novel claims,
[and] fail to give guidance to officials about how to comply
with legal requirements.”).
A final challenge worth highlighting is that qualified im-
munity assumes ignorance on the part of officers, without
much justification. The doctrine functions on the premise that
officers are oblivious to constitutional rights unless a case
warns them that their precise actions in a precise set of cir-
cumstances would violate the Constitution. Zorn, 146 S. Ct. at

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No. 24-2104 39
930–31. That assumption ignores that reasonable people—on
whom the qualified immunity standard is based—are ex-
pected to conform to societal norms without guidance about
their specific actions, and they are often punished for falling
short. Cheek v. United States, 498 U.S. 192, 199 (1991) (“The gen-
eral rule that ignorance of the law or a mistake of law is no
defense to criminal prosecution is deeply rooted in the Amer-
ican legal system.”); White v. Pauly, 580 U.S. 73, 78–79 (2017)
(“Qualified immunity attaches when an official’s conduct
does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” (ci-
tation modified)). It is ironic that citizens can lose their free-
dom by unknowingly violating the law, but officers cannot be
subjected to a jury determination about whether they violated
the Constitution.
Assuming officer ignorance, as qualified immunity does,
also fails to account for the reality that officers are trained on
broad constitutional principles, not granular factual scenar-
ios. See Joanna C. Schwartz, Qualified Immunity’s Boldest Lie, 88
U. C HI . L. R EV. 605, 610 (2021). Given that reality, claims for
constitutional violations should not be foreclosed by marginal
factual differences among cases unknown to officers.
This view was once supported by caselaw. Indeed, until
its most recent decision in Zorn, the Supreme Court had
consistently reminded us that “an officer might lose qualified
immunity even if there is no reported case directly on point”
because it “is not necessary, of course, that the very action in
question has previously been held unlawful.” Ziglar, 582 U.S.
at 151 (citation omitted). We were also told that “officials can
still be on notice that their conduct violates established law
even in novel factual circumstances.” Hope v. Pelzer, 536 U.S.

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40 No. 24-2104
730, 741 (2002). But, with Zorn, that is no longer the rule.
Rather, qualified immunity, which I am bound to respect
under the doctrine of stare decisis, now gives law
enforcement a free pass to violate a constitutional right—even
one that seems apparent—if the right has not yet been
adjudicated in precisely the same circumstances.
For years, critics have warned of the dangers qualified im-
munity presents. See, e.g., Kisela v. Hughes, 584 U.S. 100, 121
(2018) (Sotomayor, J., dissenting) (noting the doctrine has
transformed into “an absolute shield for law enforcement of-
ficers”); Hoggard v. Rhodes, 141 S. Ct. 2421, 2421 (2021)
(Thomas, J., respecting the denial of certiorari) (urging the
Court to reconsider the doctrine because, among other prob-
lems, “the one-size-fits-all doctrine is also an odd fit for many
cases because the same test applies to officers who exercise a
wide range of responsibilities and functions”); William
Baude, Is Qualified Immunity Unlawful?, 106 C ALIF . L. R EV. 45,
82, 87 (2018) (“[N]early all of the Supreme Court’s qualified
immunity cases come out the same way—by finding immun-
ity for the officials.”); id. at 84 (“[L]ower courts that follow Su-
preme Court doctrine should get the message: think twice be-
fore allowing a government official to be sued for unconstitu-
tional conduct”).
Now the day has come when the doctrine’s privilege has
nearly eclipsed the Constitution’s guarantees. Our decision in
this case illustrates as much. I am compelled to rule that it was
not “clearly established” that officers could not enter Jack-
son’s home based on the exigent circumstances exception
even though the officers had over five hours of dormancy to
get a warrant. I am also compelled to rule that it was “not be-
yond debate” that officers could not shoot Jackson with a

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No. 24-2104 41
third non-lethal bullet when he was standing still and silent.
A jury cannot use its sound judgment to determine whether
the officers’ actions were reasonable, when in all other areas
of tort law we have faith that juries can ably sort out liability.
See Green, 734 F. Supp. 3d at 566–68. By virtue of the qualified
immunity doctrine, constitutional torts are the lone exception.
Nevertheless, because Zorn forecloses any other result, I con-
cur in the judgment.

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