_In the
United States Court of Appeals For the Seventh Circuit ____________________ Nos. 23-3262 & 23-3343 BLAKE STEWARDSON, Plaintiff-Appellee, Cross-Appellant, v.
CHRISTOPHER TITUS, Defendant-Appellant, Cross-Appellee,
and
CAMERON BIGGS, et al., Defendants-Cross-Appellees. ____________________
Appeals from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:18-cv-00958-DRL-MGG — Damon R. Leichty, Judge. ____________________
ARGUED SEPTEMBER 27, 2024 — DECIDED JANUARY 23, 2025 ____________________
Before BRENNAN, JACKSON-AKIWUMI, and PRYOR, Circuit Judges. BRENNAN, Circuit Judge. After police arrested Blake Stew- ȱ ȱ ȱ ȱ ȱ Ěȱ ȱ ȱ ȱ ȱ 2 Nos. 23-3262 & 23-3343
Year’s Eve 2018, his night went from bad to worse. He was taken to a jail in Cass County, Indiana, where Ĝ repeat- edly subjected him to force—some excessive, some not. Following that night’s events, Stewardson sued various ǰȱȱĜȱȱǰȱĜȱȱ Biggs, and the ěȱȱȱ¢, alleging violations of his civil rights. The district court granted summary judgment to the defendants on many of the claims, but, as relevant here, two proceeded to trial: one against Titus for excessive force and one against Biggs for failing to intervene. The jury found ¢ȱȱȱȱȱȱęȱȱȱ award against him. On appeal, Titus asks us to reduce that award on constitutional grounds. Stewardson cross-appeals, disputing several of the district court’s summary judgment decisions. I. Background We begin with how we view the facts for the appeal and cross-appeal. Titus challenges a punitive damages award, so the facts are viewed in the light most favorable to the jury’s verdict. Est. of Moreland v. Dieter, 395 F.3d 747, 757 (7th Cir. 2005); see also Gracia v. SigmaTron Int’l, Inc., 842 F.3d 1010, 1024 (7th Cir. 2016) (viewing “the facts as the jury found them”). Stewardson’s cross-appeal, on the other hand, comes to us af- ter a grant of summary judgment, at which courts “read the facts and draw all reasonable inferences in the light most fa- vorable to … the non-moving party”—here, Stewardson. Pierner-Lytge v. Hobbs, 60 F.4th 1039, 1043 (7th Cir. 2023). Those facts are as follows: On January 1, 2018, shortly after midnight, Stewardson was arrested for driving under the in- Ěȱ ȱ . He was taken ȱ ěȱ to the Cass Nos. 23-3262 & 23-3343 3
County Jail. Upon arrival, Stewardson was visibly intoxi- cated, and he began directing profanities at police. At intake, oĜȱĴȱȱȱhim down, but he struggled, making ȱȱȱĜǯȱȱȱĴȱǰȱȬ lance video shows that Titus slammed Stewardson’s face ȱȱ ȱ ȱȱȱěed. Titus’s super- visor, Biggs, was walking over to help restrain Stewardson and witnessed this use of force. After Biggs arrived to assist, Titus again slammed Stewardson’s face into the wall. As a re- sult, Stewardson received a cut over his left eye, which began to bleed. Following the head slams, Biggs ȱ Ĝȱ ȱ need to move Stewardson to the jail’s padded cell to complete the search. Biggs and Titus guided Stewardson to the cell, and immediately upon entering, Titus executed a leg sweep, tak- ing Stewardson’s feet out from under him. Stewardson fell to the ground and hit his head. ȱĜȱȱȱStew- ardson, and ȱȱȱȱěǯȱ ȱȬ ¢ȱ ěȱ one of Stewardson’s hands. But because the ¢ȱȱȱěȱȱȱȱlock, Titus was unable to ěȱthe other hand. While one Ĝ went to retrieve bolt Ĵȱȱȱȱěǰȱother Ĝȱȱ ȱ pinned to the ground for more than twenty-ęȱǯȱ During this time, ȱ¢ȱěȱ ȱȬ gan to struggle with police. To regain control of him, Biggs delivered what is called a “common peroneal knee strike.” This involves driving one’s knee into the common peroneal nerve located in the leg of another. Biggs had been trained how to properly execute this strike. After recovering control of Stewardson, police were able to remove hiȱěǯȱ, ȱ ȱ Ĝǰ Stewardson remained non-compliant, 4 Nos. 23-3262 & 23-3343
refusing orders to stay on his stomach and directing addi- tional profanities at them. So, Biggs employed another knee strike. According to Biggs, Stewardson made a suicidal comment while he resisted ȱ Ĝǯȱ ȱ ȱ ȱ whether he made such a comment, but he did not deny doing ǯȱȱȱǰȱĜ removed his clothing and brought an anti-suicide blanket to the padded cell. Once he was left alone, Stewardson unsuccessfully ĴȱȱȱȱȂȱȬ ȱ ȱȱǯȱ ȱǰȱȱȱĜȱȱ place Stewardson in a restraint chair. Titus returned to the padded cell before the restraint chair arrived. He spoke to Stewardson for a few seconds through a window in the cell door. ȱĜ then abruptly swung the door open and into Stewardson, Ě¢ȱ ȱ ȱ ȱ ȱ wall. Titus entered the cell and performed a hip toss—he ȱ ȱěȱȱȱȱȱȱ¢ȱȱ throwing Stewardson back ȱȱĚǯ This occurred approx- imately thirty minutes after Titus had executed the leg sweep. Biggs was in the jail’s intake area but not present in the pad- ded cell to witness the hip toss. OĜȱthen strapped Stew- ardson to the restraint chair where he remained for the next forty minutes. In November 2018, ȱ ęȱ ȱ ȱ ȱǰȱǰȱȱȱěȱȱȱ¢ȱȱŚŘȱ U.S.C. § 1983 arising out of these events. Relevant here, he sued Titus and Biggs for using excessive force. Stewardson as- serted Titus’s head slams, leg sweep, and hip toss were all un- lawful uses of force. As for Biggs, Stewardson claimed the two knee strikes amounted to excessive force. He also alleged Biggs failed to intervene between Titus’s separate instances of Nos. 23-3262 & 23-3343 5
force. For his ȱȱȱě, Stewardson relied on Monell v. Department of Social Services, 436 U.S. 658 (1978). He accused ȱěȱof maintaining an unconstitutional custom of stripping uncooperative inmates in the Cass County Jail. ȱ ěȱ ȱ ȱ ¢ȱ ȱ ȱ Ȭ son’s Monell claim, which the district court granted. Biggs also moved for summary judgment, which was granted in part. The court determined that ȱ ȱȱȱęȱȬ munity on Stewardson’s excessive force claim. But it allowed Stewardson to proceed with his failure-to-intervene claims. Biggs later requested that the district court reconsider his motion for summary judgment on the failure-to-intervene claims. The district court obliged but again denied the motion on Stewardson’s claim that Biggs failed to intervene between Titus’s head slams and leg sweep. It explained that “Biggs was present and witnessed both uses of excessive force,” so the claim could proceed. But the court changed course on the claim that Biggs failed to intervene between Titus’s leg sweep and hip toss. This time, it ruled that Biggs was entitled to qual- ęȱ ¢ǯȱ ȱ ȱ ȱ ȱ ȃ Ȃȱ ȱ known or understood that his failure to intervene to prevent a later ‘hip-toss’—separated by time, observation, and pres- ence was unlawful.” Biggs then appealed the district court’s ȱ ¢ȱ ¢ȱ ȱ ęȱ ¢, but we dismissed for lack of jurisdiction. Stewardson v. Biggs, 43 F.4th 732, 734 (7th Cir. 2022). Relevant to this appeal are two of Stewardson’s claims that went to trial—one against Titus for using excessive force and a second against Biggs for failing to intervene between Titus’s head slams and leg sweep. A jury found Titus liable for em- ploying excessive force and awarded Stewardson $400,000 in 6 Nos. 23-3262 & 23-3343
compensatory damages and $850,000 in punitive damages. The jury concluded that Biggs was not liable for failing to in- tervene. ȱȱǰȱȱȱȱĴ, or in the alternative a new trial, arguing the jury’s punitive damages award was unconstitutionally excessive. The district court de- nied that motion, and Titus now appeals. He renews his argu- ment that the punitive damages award assessed against him violates due process. Stewardson cross-appeals, asserting the district court ȱȱȱȱęȱ¢ȱȱȱȱȬ ure-to-intervene claim and on his excessive force claim. Stew- ȱȱȱȱȱ¢ȱȱȱěȱ of Cass County summary judgment on his Monell claim. We begin by analyzing Titus’s challenge to the jury’s pu- nitive damages award and then turn to Stewardson’s cross- appeal. II. Punitive Damages Nobody disputes that Titus’s misconduct warrants a pu- nitive damages award. Rather, the parties disagree on whether the award is unconstitutionally excessive. Titus asks this court to reduce the $850,000 in punitive damages assessed against him to $50,000. We decline his invitation to alter the judgment. Section 1983 “create[d] ‘a species of tort liability’ in favor of persons deprived of federally secured rights.” Smith v. Wade, 461 U.S. 30, 34 (1983) (quoting Carey v. Piphus, 435 U.S. 247, 253 (1978)). The statute is not itself a source of substantive rights but, instead, “provides a mechanism for enforcing in- dividual rights.” Gonzaga Univ. v. Doe, 536 U.S. 273, 285 (2002). Nos. 23-3262 & 23-3343 7
The Supreme Court has long held that punitive damages are among the enforcement mechanisms available in a § 1983 ac- tion. Smith, 461 U.S. at 56. Although the statute says nothing about punitive awards, they are available aȱȱĴȱ com- mon law. See id. at 34. Punitive damages are only appropriate, the Court has said, when a defendant’s conduct was driven “by evil motive or intent” or when “it involve[d] reckless or callous ěȱ ȱ ȱ ¢ȱ ȱ ȱ ȱ Ȭ ers.” Id. at 56. Given § 1983’s silence on punitive awards, it does not establish a statutory cap. The Constitution nonethe- less imposes an outer limit on the size of permissible awards. See Est. of Moreland, 395 F.3d at 756. Because punitive damages are “retributive in nature,” they must comply with principles of due process. Saccameno v. U.S. Bank Nat’l Ass’n, 943 F.3d 1071, 1086 (7th Cir. 2019). Where, as here, a party challenges a punitive award on due process grounds, we assess the award de novo, id., viewing the facts in the light most favora- ble to the jury’s verdict, Est. of Moreland, 395 F.3d at 757. ȱ ȱ ȱ ȱ ęȱ ȱ ȃȄȱ courts must consider when reviewing a punitive damages award. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 418 (2003) (citing BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575 (1996)). Those are: “(1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual ȱ ȱ ȱ ěȱ ¢ȱ ȱ ěȱ ȱ ȱ ȱ ȱ DzȱȱǻřǼȱȱěȱ ȱȱȱ damages awarded by the jury and the civil penalties author- ized or imposed in comparable cases.” Id. We consider this case under each. 8 Nos. 23-3262 & 23-3343
A. Reprehensibility Of the three guideposts, reprehensibility “is the most sig- ęȱ.” Est. of Moreland, 395 F.3d at 756 (citing State Farm, 538 U.S. at 419). Encompassing ęȱȱȱȱ own, it includes whether: [T]he harm caused was physical as opposed to economic; the tortious conduct evinced an indif- ference to or a reckless disregard of the health or safety of others; the target of the conduct had ęȱ¢DzȱȱȱȱȬ peated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident. State Farm, 538 U.S. at 419. Each of the considerations—except ęȱ¢ǰȱ ȱȱȱ—cuts in favor of leaving the jury’s award in place. To start, Titus both physically harmed Stewardson and showed a disregard for his health and safety. Shortly after ȱȱȱȱȱ¢ȱ ȱȱěǰȱȱ twice slammed his head against a wall, leaving him with an open wound over his left eye. Titus then helped move Stew- ardson to a cell where he immediately executed a leg sweep. ȱěǰȱ ȱȱȱȱȱȂȱĚǯȱǰȱ Titus again employed excessive force. He opened the cell door directly into a then-naked Stewardson. Inside the cell, he exe- cuted ȱȱǰȱ ȱ ȱȱȱĚȱȱǯȱ Titus’s conduct was violent and thus all the more reprehensi- ble. See Gore, 517 U.S. at 575–76. His actions were particularly ȱ ȱ ȱ ȱ ȱ ȱ ȱ Ĝȱ ȱ ȱ “position of public trust.” Kunz v. DeFelice, 538 F.3d 667, 679 Nos. 23-3262 & 23-3343 9
(7th Cir. 2008). “This court takes police brutality very seri- ously as grounds for punitive damages.” Id. (citing Cooper v. Casey, 97 F.3d 914, 919 (7th Cir. 1996)). In evaluating reprehensibility, courts also consider whether a defendant’s conduct was isolated or repeated. State Farm, 538 U.S. at 419. From the head slams to the hip toss, Ti- tus used excessive force on several occasions throughout the night. While each use of force was employed against Steward- son, this consideration requires repetition (employing force multiple times) not recidivism (employing force against mul- tiple people). See Saccameno, 943 F.3d at 1087. Although “recidivism ¢ȱȱȱȱȄȱȱȱĴȱȱ degree, the jury understandably viewed Titus’s conduct as reprehensible given its redundant nature. Id. So do we. As for the last reprehensibility consideration, Titus’s ac- tions toward Stewardson were undoubtedly malicious. View- ing “the facts in the light most favorable to the verdict,” his level of force exhibited an intent to harm Stewardson, rather than merely restrain him. See Est. of Moreland, 395 F.3d at 757. “To throw a man’s head against concrete when he is hand- ěȱ ȱ ȱ ȱ ȱ ȱ ¢ȱ ¡ȱ ȱ Ȭ cious.” Id. Titus did more than just that. The jury also heard ȱȱĜȱ ȱughing outside Stewardson’s cell in the aftermath of Titus using excessive force. The district court judge, who observed Titus throughout the trial, described him as an unsympathetic witness who was “seem- ¢ȱĚȄȱȱȱ. All told, the evidence sup- ported the jury’s conclusion that Titus displayed a malicious disregard for Stewardson’s well-being during and after the night in question. 10 Nos. 23-3262 & 23-3343
Under ȱǰȱȱęȱȱȱȱ guidepost counselȱ Ĝȱ ȱ ¢Ȃȱ ȱ ȱ award. B. Ratio The second guidepost directs courts to compare “the ac- ȱȱȱȱěȱ¢ȱȱěȱȱȄȱ¢Ȃȱ ultimate “punitive damages award.” State Farm, 538 U.S. at 418 (citing Gore, 517 U.S. at 575). Courts often evaluate this factor with reference to the “ra- tio between the compensatory and punitive damages.” Sac- cameno, 943 F.3d at 1088. As a rule of thumb, an award that exceeds a single-digit ratio generally violates due process. State FarmǰȱśřŞȱǯǯȱȱŚŘśǯȱȱ ȱȱěȱȱȱȬ ęȱ¢ȱȱ ǰȱȱȱȱȱȱ more appropriate. Id. Conversely, a low compensatory damages award might justify a higher ratio. Id. The inquiry is ultimately context dependent and focuses on whether the damages correspond to the wrongfulness of the defendant’s actions. See Mathias v. Accor Econ. Lodging, Inc., 347 F.3d 672, 677–78 (7th Cir. 2003). Recall that the jury awarded Stewardson $400,000 in com- pensatory damages and $850,000 in punitive damages. The re- sulting punitive to compensatory damages ratio is 2.1 to 1. So, aȱȱȱĴǰȱȱ ȱȱȱȱ¢ȱȱ ȱĚǯȱKapelanski v. Johnson, 390 F.3d 525, 534 (7th Cir. 2004) ǻęȱȱȱȱřǯřȱȱŗȱ“easily permissible”). Titus nonetheless argues that the punitive damages award amounts ȱȱ ȱȱ ȱȱȱęȬ cant compensatory damages award. As explained, the ȱ ȱ ¢ȱ ȱ ȱ ěȱ ȱ ȱ Nos. 23-3262 & 23-3343 11
on the punitive damages ceiling. But a substantial compensa- tory award does not foreclose a substantial punitive award. See, e.g., Est. of Moreland, 395 F.3d at 751 (upholding substan- tial compensatory and punitive damages awards). While we acknowledge the size of the jury’s punitive award in this case, Ȃȱȱ¢ȱǯȱȱȱȂȱȱȱĜȬ ciently reprehensible it may “warrant the imposition of fur- ther sanctions to achieve punishment or deterrence.” State Farm, 538 U.S. at 419 (citing Gore, 517 U.S. at 575). Titus’s re- peated use of excessive force against Stewardson is worthy of deterrence. Moreover, courts are to compare the jury’s puni- tive award to the actual and potential harm to the injured party. Saccameno, 943 F.3d at 1088 (citing TXO Prod. Corp. v. All. Res. Corp., 509 U.S. 443, 460–61 (1993)). Given the level of force Stewardson endured, one could imagine his injuries having been far more serious. The extent of possible harm fur- ȱęȱǯ Because the punitive damages award assessed against Ti- tus appropriately corresponds to the severity of his conduct, ȱ ȱ ȱ ȱ ȱ ȱ ȱ Ĝȱ ȱ Ȭ ment. C. Comparable Cases ȱȱȱȱęȱǰȱȱȱȱȬ nitive damages award at issue to “the civil penalties author- ized or imposed in comparable cases.” Gore, 517 U.S. at 575. Titus argues at considerable length that the punitive dam- ages award assessed against him exceeded those assessed ȱ¢ȱȱǯȱȱȱȱĴǰȱ “this guidepost generally deserves less weight than the other two.” Rainey v. Taylor, 941 F.3d 243, 255 (7th Cir. 2019) (citing 12 Nos. 23-3262 & 23-3343
Kemp v. AT&T Co., 393 F.3d 1354, 1364 (11th Cir. 2004)). Courts should hesitate before disturbing a jury’s award simply be- cause it surpasses the size of awards distributed in other cases. Id. (quoting Willow Inn, Inc. v. Pub. Serv. Mut. Ins. Co., 399 F.3d 224, 238 (3d Cir. 2005)). ȱ ȱ£ȱȱěȱin other excessive force cases have received smaller awards than Stewardson’s, this court has also refused to overturn much higher awards. In an- other § 1983 case, for example, a jury awarded $29 million in compensatory damages and $27.5 million in punitive dam- ages against ȱĜǯȱEst. of Moreland, 395 F.3d at 751. To be clear, the inmate there died, but the case otherwise bears several similarities to this one. Id. Police arrested Moreland for drunk driving. Id. Over the course of the evening, they subjected him to several rounds of excessive force. Police “roughed [Moreland] up repeatedly”—including by throw- ing his head against a wall, body slamming him, pepper spraying him, and leaving him in a puddle of his own spit and mucus. Id. at 757, 75ŘǯȱĜȱȱȱȱȱȱȱ ȱěǯȱId. at 752. The court acknowledged that an award exceeding $25 million was “very large.” Id. at 757. But because the compensatory to punitive damages ratio did “not test the limits of constitutionality,” and because the conduct at hand was so reprehensible, it was unwilling to disturb the jury’s award. Id. Here, too, Titus’s use of force was reprehensible and the damages ratio of 2.1 to 1 falls short of raising constitutional ǯȱȱ ȱ ǞŞśŖǰŖŖŖȱ ȱ ȱ ęȱ ȱ Ȭ ages award, it is 32-fold smaller than the one upheld in Estate of Moreland. So, as in that case, we are unwilling to overturn Nos. 23-3262 & 23-3343 13
the jury’s punitive damages award simply because Titus has ęȱȱ ȱȱȱ¡ȱȱ ǯ Taken together, the Supreme Court’s guideposts for eval- uating whether a punitive damages award complies with due ȱȱȱȱȱĜȱȱȱȱȬ tus. The award does not exceed what is constitutionally per- missible. D. Titus’s Ability to Pay Moving beyond the guideposts, Titus argues his inability to pay Stewardson is a basis for reducing the jury’s punitive damages award. Titus currently makes less than $60,000 per year. Based on his salary, he submits that he will never be able to pay Stew- ardson $850,000. Titus’s argument is well taken. A “defendant who cannot pay a large award of punitive damages can point this out to the jury ….” Kemezy v. Peters, 79 F.3d 33, 36 (7th Cir. 1996)ǯȱȱȱȱȱȱȱǯȱȱȱĴȱȱ¢ǰȱȱ was not required to make “[a] plea of poverty.” Id. Having decided not to, though, he must now live with his choice. Be- cause the burden rested on Titus to argue before the jury that ȱ ęȱ ȱ ęȱ ȱ ȱ ǰȱ ȱ ȱ now ask us to alter the judgment based on his inability to pay. See id. (It is not “unjust to allow a jury to award punitive dam- ages without knowing that the defendant really is [or is not] a wealthy person.”). Ȃȱęȱȱȱȱȱȱȱ that the jury’s punitive damages award falls below the consti- tutional ceiling. 14 Nos. 23-3262 & 23-3343
III. Cross-Appeal On cross-appeal, Stewardson claims the district court erred in granting Biggs summary judgment based on quali- ęȱ ¢ǯȱ ȱ ȱ ȱ ȱ forward with his § 1983 claims against Biggs for allegedly (1) using excessive force by delivering two knee strikes against him, and (2) failing to in- tervene between Titus’s leg sweep and subsequent hip toss. Stewardson also argues the district court improperly granted summary judgment on his Monell ȱȱȱěȱof Cass County. He submits there is a triable issue of fact as to whether the ě maintains an unconstitutional custom of stripping any uncooperative detainee that enters the Cass County Jail. “We review de novo a district court’s grant of summary judgment, viewing the facts in the light most favorable to the non-moving party.” Ludwig v. United States, 21 F.4th 929, 931 (7th Cir. 2021) (citing FKFJ, Inc. v. Village of Worth, 11 F.4th 574, 584 (7th Cir. 2021)). The “movant is entitled to judgment as a Ĵȱȱ Ȅȱȱȱ ȱȃȱȱȱȱȱȬ pute as to any material fact.” FED. R. CIV. P. 56(a). A. Biggs’s Liability Stewardson alleges Biggs used “objectively unreasonable” force in violation of the Fourteenth Amendment when he de- livered two knee strikes in the padded cell. See Kingsley v. Hendrickson, 576 U.S. 389, 396–97 (2015). He also claims Biggs failed to intervene between Titus’s leg sweep and hip toss, re- sulting in a deprivation of his constitutional rights. See Mon- taño v. City of Chicago, 535 F.3d 558, 569 (7th Cir. 2008). The Nos. 23-3262 & 23-3343 15
district court granted summary judgment on both claims after deciding that ȱ ȱȱȱęȱ¢ǯȱ ȱȱȱȱĜȂȱȱȱȱȱ¢ȱȬ ȱ ǰȱęȱ¢ȱ ȱȱȱȱȱ liability. Kemp v. Liebel, 877 F.3d 346, 350 (7th Cir. 2017). The ęȱ¢ȱ¢ȱȱ ǯȱ ȱȃȱȱȱ to determine: (1) whether the record evidences the violation of a federal statutory or constitutional right; and if so (2) whether the right violated was clearly established at the time the violation occurred.” ȱ ǯȱ ȱ ¢ǯȱ ěȂȱ ěǯ, 114 F.4th 648, 655 (7th Cir. 2024) (citing cases). Before piercing ȱ ĜȂȱ ¢ȱ ǰȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ¢ȱ ȱ ȱ Ĝǯȱ Id. But the Supreme Court has made clear that courts may proceed by ȱ ȱ ȱ ȱ ȱ ȱ ¢ȱ ęǯȱ Pearson v. Callahan, 555 U.S. 223, 236 (2009); Kemp, 877 F.3d at 351. Indeed, it is sometimes prudent for courts to begin with the second prong so as “to avoid ‘unnecessary litigation of con- stitutional issues’ and expending scarce judicial resources that ultimately do not impact the outcome of the case.” Kemp, 877 F.3d at 351 (quoting Pearson, 555 U.S. at 236–37) (internal ȱĴǼǯȱȱȱȱǰȱ ȱȱȱȱȱ analysis at step two. Stewardson “bears the burden of demonstrating that the” rights at issue were “clearly established at the time the alleged violation[s] occurred.” Schimandle, 114 F.4th at 655 (citing Green v. Newport, 868 F.3d 629, 633 (7th Cir. 2017)). “A clearly ȱȱȱȱȱȱȁĜ¢ȱȱȱ¢ȱȬ ȱĜial would have understood that what he is doing violates that right.’” Mullenix v. Luna, 577 U.S. 7, 11–12 (2015) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). To reach 16 Nos. 23-3262 & 23-3343
a point of clarity, “[e]xisting precedent must have placed the statutory or constitutional question beyond debate.” Id. at 12 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). Although Stewardson need not identify a case directly on point, rele- vant precedent—viewed at the appropriate level of general- ity—must put to rest any question that Biggs should have known he was violating the law. Mullenix, 577 U.S. at 11–12; Schimandle, 114 F.4th at 655; Kemp, 877 F.3d at 351. 1. Excessive Force ȱȱęȱǰȱ ȱȱȱȱȱ Ȭ ȱ ȱ ¢ȱ ȱ Ĝial in Biggs’s position would have known it was unlawful to execute two knee strikes un- der the circumstances in the padded cell. See Kemp, 877 F.3d at 351. That is, that the knee strikes amounted to an objectively unreasonable use of force under the Fourteenth Amendment. See Kingsley, 576 U.S. at 396–97. ǰȱ ȱ ȱȱ¢ȱěȱȱȬ ¢ȱěȱȱȱĜȱȱȱȱȱȬ ȱ ȱ ȱ ǯȱ ȱ ęȱ ǯȱAnd Stewardson ĴȱȱȱȱȱǯȱWhen an individual resists police, Stewardson concedes ȱ ȱ Ĝȱ ¢ȱ ȱ reasonable force to subdue him. Kingsley, 576 U.S. at 397 (courts evaluating the reasonableness of force consider ȃ ȱȱěȱ ȱ¢ȱȄǼ. Police are also entitled to use reasonable force to neutralize a potential threat. See id. As the district court observed, when Stewardson was only ¢ȱ ěǰȱ ȱ ȱ ȱ ȱ ȱ Ĝȱ ¢, as the ěȱȱȱpotential weapon. He also posed a threat ȱ Ĝȱ ȱ ȱ ȱ ěȱ ȱ ǯȱ Given Nos. 23-3262 & 23-3343 17
these realities, Stewardson cannot reasonably argue Biggs was barred from using force. Instead, he contends Biggs vio- lated his rights by executing maximum-force knee strikes. We pause to note that Stewardson bases his argument on Biggs’s deposition testimony where he answered “[y]es” to whether he delivers knee strikes “with all [his] available strength[.]” But in that portion of his deposition, Biggs was describing how he was trained to properly execute a knee strike, not how he executed the knee strikes against Stewardson. Nonethe- less, we will proceed under the assumption that Biggs deliv- ered maximum-force knee strikes that night. The relevant question, then, is whether the law at the time ¢ȱ ȱȱȱĜȱȱȂȱȱȱ have known to employ less-than-maximum-force knee strikes as opposed to maximum-force knee strikes. On this point, ȱ ěȱ ȱ ȱ ǯȱ ȱ ȱ ȱ standing for the broad proposition that “the amount of force” ȱĜȱȱȃȱ¢ȱȱ ȱȱȱ ȱȱȬ sonable response to the situation.” Cyrus v. Town of Mukwonago, 624 F.3d 856, 862 (7th Cir. 2010). True enough, but Stewardson is too far up the ladder of generality. Cyrus did not put Biggs on notice that he was required to quickly assess Stewardson’s level of restraint and then determine whether a knee strike at śŖƖǰȱ ŝśƖǰȱ ȱ ŗŖŖƖȱ ȱ ȱ Ĝ¢ȱ calibrated to avoid violating his constitutional rights. And it certainly did not put Biggs on notice that, under the circum- stances, it was appropriate to disregard his training on how to employ a knee strike. If anything, the law as it existed when Biggs delivered the ȱȱ ȱȱȱȱȱĜȱȱȱ the force used against Stewardson was appropriate. The most 18 Nos. 23-3262 & 23-3343
analogous case we have found is ěȱǯȱ , 791 F.3d 638 (6th Cir. 2015). There, the Sixth Circuit held that it was not ¡ȱȱȱĜȱȱneutralize an actively resisting arrestee with a “one-time taser shot and knee strike.” Id. at 643. Like Stewardson, the arrestee in that case was “verbally ęȄȱȱ¢¢ȱ-compliant. Id. at 642. Under those “tense, uncertain, and rapidly evolving” circumstances, the court thought a knee strike perfectly reasonable to subdue re- sistance. Id. at 643 (quoting Graham v. Connor, 490 U.S. 386, 396–97 (1989)). And, in reaching its conclusion, the court did not distinguish between maximum-force and less-than-maxi- mum-force knee strikes. Id.; see also Smith v. Ball State Univ., 295 F.3d 763, 771 (7th CirǯȱŘŖŖŘǼȱǻĴȱȱȱȬ ing in a tackle deemed reasonable); Pullen v. House, 88 F. Supp. 3d 927, 943 (W.D. Wis. 2015). Stewardson falls short of showing that every reasonable Ĝȱ ȱ Ȃȱ ȱ ȱ ȱ ȱ that his knee strikes amounted to a violation of clearly established law. ȱ ȱ ȱ ęȱ ¢ȱ ȱ Ȃȱ excessive force claim. 2. Failure to Intervene Stewardson next claims that Biggs violated his constitu- tional rights by failing to intervene between Titus’s leg sweep ȱȱǯȱȃǽǾȱĜȱȱȱ¢ȱȱȗ 1983 to ‘inter- ȱȱȱdzȱȱȱȱ¡ȱȱȱȱĜȱȱ informed of the facts that establish a constitutional violation and has the ability to prevent it.’” Montaño, 535 F.3d at 569 (quoting ęȱǯȱ¢ȱȱast Chicago, 349 F.3d 989, 1001 (7th Cir. 2003)). ȱ ȱ ȱ ȱ ęȱ ¢ȱ ȱ Stewardson can show the law clearly established that he was Nos. 23-3262 & 23-3343 19
legally obligated to prevent Titus’s hip toss. See Mullenix, 577 U.S. at 11–12. Importantly, although Biggs was at the Cass County Jail, he was not physically present in the padded cell when Titus executed the hip toss against Stewardson. On that point, the parties agree. Even so, Stewardson argues Biggs should have cautioned Titus against using additional excessive force after witnessing prior instances of force that night—most recently, the leg sweep that occurred about thirty minutes prior. The relevant question for purposes of qęȱ¢ǰȱǰȱȱ ȱ ȱ Ĝ—who previously witnessed another of- ęȂȱȱȱ¡ȱ—should have known he was ob- ligated to prevent additional excessive force that occurred later in time and outside of his presence. The law was, and remains, unclear on that question. Stewardson argues Lanigan v. Village of East Hazel Crest, 110 F.3d 467 (7th Cir. 1997), provides clarity. There, the court dis- missed a failure-to-intervene claim against a police chief who ȱȱȱȱĜȱ“poke and push” an individual. Id. at 478. The court held that the chief had no opportunity to prevent an isolated incident like this. Id. It went on to provide a hypothetical, saying “had he felt that further physical force might ensue,” the chief “certainly could have intervened.” Id. But Lanigan ȱĴȱȱ¢ȱȱ ȱȱȱǯȱȱȱ may have had an obligation to intervene if he witnessed a sec- ond poke and push, as they were about to happen right after ȱ ęǯȱ In other words, if he witnessed ongoing force. But the case does not stand for the proposition that the chief would have been obligated to prevent another sudden inci- dent half an hour later and out of his view. Stewardson’s reli- ance on Lanigan is thus misplaced. Titus’s excessive force was 20 Nos. 23-3262 & 23-3343
not ongoing. Rather, thirty minutes separated the leg sweep and the hip toss. Biggs, who was in another room, did not ȱȱȱ¢ȱȱȱȱĴȱȱȱȱ ȱȱ ȱȱĴǯȱSee Chavez v. Ill. State Police, 251 F.3d 612, 652 (7th Cir. 2001). Stewardson also cites this court’s statement in Byrd v. Brishke ȱȃȱȱĜȱ¢ȱȱȱȱ¢ȱȱ ¢ȱ ȱ Ĝȱ ȱ ȱ ȱ ȱ ȱ Ĝȱ ȱ ¢ȱ punish a third person in his presence or otherwise within his knowledge.” 466 F.2d 6, 11 (7th Cir. 1972). According to Stew- ardson, the “otherwise within his knowledge” language from Byrd makes clear that Biggs was legally required to intervene prior to Titus’s hip toss, as he had already witnessed Titus use force that night. But Stewardson puts more weight on that phrase than it can hold. The court in Byrd dealt with a factual ȱ ȱȱěȱȃ ȱȱ¢ȱ ȱĜȱ in the[] presence” of the defendant-ĜǯȱŚŜŜȱǯŘȱȱŗŗȱǻȬ phasis added); see also id. (the “responsibility [to intervene] ȱ¡ȱȱȱ¢ȱĜȱwho are present at the scene of such summary punishment”) (emphasis added). Like Lanigan, Byrd ȱȱ¢ȱȱȱĜȱȱȱthat ȱĜȱ ȱȱȱȱȱȱȱȱnd prevent him from doing so. †
† The partial dissent repeatedly refers to the “or otherwise within his
knowledge” language in Byrd as forming part of that case’s “holding.” We respectfully disagree. That language was not necessary to the outcome of Byrd. As explained, the officers there were present to witness the beating at issue and, on account of their presence, had a realistic opportunity to intervene. Byrd, 466 F.2d at 11. The court in Byrd had no occasion to Nos. 23-3262 & 23-3343 21
The law does not ȱĜȱȱȱȱȱǰȱ ȱ ȱ ȱ ȱ Ĝȱ ȱ ȱ ¡ȱ force in the future and knowing to intervene before they do. We do not think the court in Byrd meant to impose such a duty when it said failure-to-ȱ¢ȱȱĴȱ ȱ ȱ Ĝȱ ȱ ȱ ȱ ¡ȱ ȱ ȃ ȱ ȱ knowledge.” Id. Stewardson fails to cite a case that clearly es- tablishes such a rule, and our search reveals none. ȱȱȱȱȱęȱ¢ȱȱ Ȭ ardson’s failure-to-intervene claim. Nothing indicates Biggs had “the ability to prevent” Titus’s sudden use of additional force when it occurred outside of his presence and some thirty minutes after the leg sweep. Montaño, 535 F.3d at 569 (quoting
determine under what circumstances knowledge alone would trigger a duty to intervene. That is crucial for purposes of qualified immunity. Again, our task is to determine whether every reasonable officer in Biggs’s position would have known he was violating Stewardson’s constitutional rights by failing to predict and prevent Titus’s sudden use of additional force—force that occurred thirty minutes after the leg sweep. It is possible to imagine sce- narios in which Biggs may have had a duty to intervene. Consider, for example, if Titus confessed his violent plan to a third officer, who then reported Titus to Biggs. In that hypothetical, Biggs may have a duty to intervene before Titus carried out his plan. But hypotheticals are not enough for legal principle to be clearly established. A rule must be more than merely “suggested by then-existing precedent.” District of Columbia v. Wesby, 583 U.S. 48, 63 (2018). The partial dissent correctly points out that “many of the failure-to- intervene fact patterns our court has confronted involve an officer who was present when another officer violates the Constitution.” That explains why neither Stewardson nor our dissenting colleague have identified a single factually analogous case putting Biggs on notice that he had to both foresee Titus’s abrupt use of force and caution him before it transpired. 22 Nos. 23-3262 & 23-3343
ę, 349 F.3d at 1001). Because the law at the time imposed ȱ ȱ ¢ȱ ȱ ȱ Ĝȱ ȱ e under the circum- stances presented in this case, the district court correctly granted summary judgment to Biggs. B. Monell Liability Last, Stewardson appeals the district court’s grant of sum- mary judgment ȱ ȱ ěȱ ȱ ȱ ¢ on his Monell liability claim. A municipal entity “can be liable under § 1983 only ‘when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly ȱȱȱȱĜȱ¢ǰȱĚȱȱ¢ǯȂȄȱSpiegel v. McClintic, 916 F.3d 611, 617 (7th Cir. 2019) (quoting Monell, 436 U.S. at 694). Aside from showing he was deprived of a federal right, to succeed on a Monell ǰȱ ȱ ěȱ ȱ show: “(1) an express policy that causes a constitutional dep- rivation when enforced; (2) a widespread practice that is so permanent and well-Ĵȱ ȱ ȱ ȱ ȱ ȱ ȱ practice; or (3) an allegation that the constitutional injury was ȱ ¢ȱ ȱ ȱ ȱ ęȱ ¢ȱ ¢ǯȄȱ Id. (quoting Est. of Sims ex rel. Sims v. County of Bureau, 506 F.3d 509, 515 (7th Cir. 2007)). Stewardson alleges the Cass County Jail maintains a cus- tom that deprives inmates of their federal rights—the second type of Monell claim above. Sę¢ǰȱȱ¢ the Jail has a custom of unlawfully stripping and restraining to a chair all uncooperative detainees. “Monell claims,” like Stewardson’s, “based on allegations of an unconstitutional municipal practice or custom—as dis- ȱȱȱĜȱ¢—normally require evidence that Nos. 23-3262 & 23-3343 23
ȱ ęȱ ȱ ȱ ȱ ȱ ȱ ǯȄȱ Chatham v. Davis, 839 F.3d 679, 685 (7th Cir. 2016). Fatal to Stewardson’s claim, he has not ęed any other instances where inmates in the Cass County Jail were stripped naked as punishment for being uncooperative. And this is not “one of those rare cases” where “the possibility of harm from a cus- ȱȱȱ¢ȱȱȱȄȱȱȱěȱȱȱ produce evidence of other injuries. Id. (citing Calhoun v. Ram- sey, 408 F.3d 375, 381 (7th Cir. 2005)). The possibility of harm is not so obvious here, given that strip searches at jails are per- missible under certain circumstances. See Florence v. Bd. of Chosen Freeholders of Cnty. of Burlington, 566 U.S. 318, 330 (2012). Not only that, but jails also sometimes remove clothing from inmates who pose a risk of suicide. See, e.g., Myers v. County of Lake, 30 F.3d 847, 850 (7th Cir. 1994). ȱȱȱȱȱěȱĜȱȱȱ overcome summary judgment on his Monell custom claim. IV. Conclusion A jury assessed a punitive damages award against Titus that falls within the constitutionally permissible range. We therefore AFFIRM that judgment. And because Biggs did not violate clearly established law when he delivered two knee ȱȱ ȱȱȱȱȱȂȱęȱȱȱȱ ȱ ǰȱ ȱȱȱ ȱęȱ¢ǯȱ In aǰȱ ȱ ȱ ȱ ěȱ Ĝȱ ȱ ȱ proceed against the ěȱȱȱ¢ on a theory of Mo- nell liability. Accordingly, we AFFIRM the district court’s deci- sions granting Biggs and the ě summary judgment. 24 Nos. 23-3262 & 23-3343
JACKSON-AKIWUMI, Circuit Judge, dissenting in part. I dis- sent only as to the grant of qualified immunity to Officer Biggs on Blake Stewardson’s claim that Biggs failed to inter- vene before Officer Titus performed a hip toss on Stewardson. In my view, we should reverse the district court’s decision to shield Biggs from this claim. I join the majority opinion’s res- olution of all other issues. In Byrd v. Brishke, our court espoused as clearly established law: “[O]ne who is given the badge of authority of a police officer may not ignore the duty imposed by his office and fail to stop other officers who summarily punish a third person in his presence or otherwise within his knowledge.” 466 F.2d 6, 11 (7th Cir. 1972) (emphasis added). Other circuits have re- garded Byrd as the “leading case on the duty to intervene.” See Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir. 1986); Rascon v. Hardiman, 803 F.2d 269, 276 (7th Cir. 1986) (listing cases). As I see it, the majority opinion sweeps aside the second half of Byrd’s holding: that an officer has a duty to prevent other of- ficers from punishing someone when that punishment is “otherwise within his knowledge.” 466 F.2d at 11. The majority opinion takes the position that Biggs had no duty to intervene because he was not present when Titus per- formed the hip toss on Stewardson. See ante, at 21. This view narrows our holding in Byrd and overlooks a related precept our caselaw has reaffirmed over time: an officer must be “in- formed of the facts that establish a constitutional violation and [have] the ability to prevent it.” Montaño v. City of Chicago, 535 F.3d 558, 569 (7th Cir. 2008) (citation omitted); see also Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994). In other words, presence is not necessary for a duty to intervene to arise. The holdings of Byrd, Montaño, and the like remain our governing Nos. 23-3262 & 23-3343 25
law even if many of the failure-to-intervene fact patterns our court has confronted involve an officer who was present when another officer violates the Constitution. Our circuit has also instructed: “Whether an officer had sufficient time to intervene or was capable of preventing the harm caused by the other officer is generally an issue for the trier of fact unless, considering all the evidence, a reasonable jury could not possibly conclude otherwise.” Lanigan v. Vill. of E. Hazel Crest, 110 F.3d 467, 474, 478 (7th Cir. 1997) (citation omitted) (finding no opportunity to intervene existed because the force—“one violent poke and push”—was not “so pro- longed” for the officer to have “undertaken any action to ‘un- do’” another officer’s constitutional violation); Miller v. Gon- zalez, 761 F.3d 822, 826 (7th Cir. 2014) (same as to an officer who did not see a fellow officer until he was “flying over [a] fence” and had “no time to act until after” the jumping officer had already landed on the arrestee’s jaw). We do not need a case “directly on point” for a right to be clearly established. Ashcroft v. Al-Kidd, 563 U.S. 731, 741 (2011). Instead, the ques- tion before us is whether a reasonable jury could find that Biggs knew of the constitutional violation, was capable of in- tervening, and was reckless or deliberately indifferent in fail- ing to do so. Cf. Yang, 37 F.3d at 285 n.1 (continuing to apply Byrd’s duty to intervene reasoning but requiring, after Daniels v. Williams, 474 U.S. 327, 330–31 (1986), “proof that a govern- ment official acted with intentional disregard” rather than mere negligence as in Byrd). I believe a reasonable jury could find all the above. For one, the fact that Biggs was not in the cell at the time of Titus’s hip toss did not erase the knowledge that Biggs had accumulated since Stewardson’s arrival at the jail: Titus was 26 Nos. 23-3262 & 23-3343
subjecting Stewardson to “repeated use of excessive force,” as my colleagues aptly describe it. Ante, at 11. Biggs saw Titus slam Stewardson’s head into the wall twice and perform a leg sweep on him. Even if Titus’s leg sweep and hip toss hap- pened thirty minutes apart, Biggs knew Titus had been mis- treating Stewardson. Further, thirty minutes is not a long time. This is especially true in a county jail where, as surveil- lance video shows, several officers were solely focused on this one detainee in an ongoing effort to stabilize him. A reasona- ble jury could thus conclude Biggs knew of the constitutional violation. Based on Biggs’s knowledge, a reasonable jury could also find that he was reckless for not intervening. At the very least, a reasonable jury could conclude that Biggs—a supervisor no less—should have reminded Titus that this detainee was drunk and possibly suicidal. And if Titus somehow feared for his safety before entering Stewardson’s cell, Biggs could have urged Titus to wait for other officers to accompany him. Such warnings are within the realm of officers’ intervention mech- anisms to prevent further constitutional violations. See Abdul- lahi v. City of Madison, 423 F.3d 763, 774 (7th Cir. 2005) (“At the least, a reasonable jury might conclude (if the plaintiff’s the- ory of the case is credited) that the other officers should have cautioned [the officer] to stop kneeling on [the arrestee’s] back.”); Miller v. Gonzalez, 761 F.3d 822, 826 (7th Cir. 2014) (“A ‘realistic opportunity’ means a chance to warn the officer us- ing excessive force to stop.”); Yang, 37 F.3d at 285 (“At a min- imum [the officer] could have called for a backup, called for help, or at least cautioned [his fellow officer] to stop.”); see also Stabenow v. City of Eau Claire, 546 F. Supp. 3d 787, 799 (W.D. Wis. 2021) (“But circuit law doesn’t require [a plaintiff] to show that the officers had the ability to physically stop Nos. 23-3262 & 23-3343 27
[another officer]. Rather, all that [a plaintiff] must show is that they had the ability to tell [the other officer] to stop.”). Recall when the hip toss happened. Biggs saw, through the security camera, Stewardson unsuccessfully attempt to cover the cell’s camera. So Biggs instructed officers to go into the cell and place Stewardson in a restraint chair. Titus ap- proached the cell before the restraint chair and his fellow of- ficers arrived, and he performed the hip toss upon entering. This was not a heat of the moment situation where Biggs had to deploy Titus to the cell immediately and had no time to prevent the hip toss. See Lanigan, 110 F.3d at 478. Stewardson’s several attempts to cover the camera were unsuccessful, so of- ficers could have continued to monitor Stewardson through the security camera or his cell window before anyone entered the cell for the restraint chair placement. Given this, a reason- able jury could find that a brief word of caution from Biggs might have prevented Titus’s hip toss. After all, Biggs was just steps away from both Titus and Stewardson’s cell. He had ample opportunity—a reasonable jury could conclude—to warn Titus about excessive force before the officers had to physically interact with Stewardson again. As a final note, the majority opinion cites Chavez v. Illinois State Police, 251 F.3d 612, 652 (7th Cir. 2001), in support of its conclusion. But that case is inapposite. Chavez involved a statewide drug interdiction program alleged to have caused disproportionate traffic stops of African American and His- panic motorists. Id. at 620–21, 626. The plaintiffs were a His- panic motorist and an African American motorist stopped in 1992 and 1993, respectively. Id. at 623–25. They alleged that, from 1990 to 1994, a sergeant had reviewed statistics showing the racial disparity for his district, failed to maintain 28 Nos. 23-3262 & 23-3343
statewide statistics after being promoted to program coordi- nator for the entire state, and consequently failed to intervene in the constitutional violations. Id. at 651–52. Our court disa- greed with the plaintiffs’ theory on the basis that there was no proof of a constitutional violation. Id. In dicta, we noted “even if there had been a constitutional violation, [the sergeant] would not have been present and thus would have been una- ble to intervene, rendering him not liable.” Id. at 652. Dicta aside, it is not clear whether our reference to the sergeant’s presence meant that he was not physically present for the traf- fic stops or that he had not assumed the coordinator position until after the stops at issue. In any event, Chavez’s facts are far removed from the knowledge Biggs undisputedly ac- quired (knowledge of Titus’s repeated violence) and the in- tervention that might have sufficed (a simple warning). In sum, it would not take a “fortune teller,” to use the ma- jority opinion’s term, to foresee that Titus’s use of excessive force would persist. Ante, at 21. Our clearly established law does not condone an officer’s decision to turn a blind eye to that sort of recurring conduct. Because the question of whether Biggs failed to intervene should have gone to a jury, I respectfully dissent.