### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 19-1930

S HANIKA D AY, et al., Plaintiffs-Appellees ,

v.

F RANKLIN W OOTEN, et al., Defendants-Appellants

.

____________________ Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division.

No. 1:17-cv-04612 — Tanya Walton Pratt, Judge

.

____________________

A RGUED N OVEMBER 6, 2019

— D ECIDED J ANUARY 10, 2020

____________________

Before E ASTERBROOK, M ANION , and B ARRETT, Circuit Judges

. M ANION , Circuit Judge . Terrell Day died tragically while in police custody on September 26, 2015. This occurred while his hands were cu ff ed behind his back after he had winded himself during a chase following an apparent shoplifting. The autopsy report concluded his cause of death was a lack of oxygen in his blood, caused in part by his obesity, an underlying heart condition, and restricted breathing due to having his2 No. 19-1930

hands cu ff ed behind his back. In this § 1983 excessive force action brought against the arresting o ffi cers, the district court concluded the o ffi cers were not entitled to quali fi ed immunity because “reasonable o ffi cers would know they were violating an established right by leaving Day’s hands cu ff ed behind his back after he complained of di ffi culty breathing.” For the reasons set forth below, we disagree with the district court’s conclusion of law and accordingly reverse.

I. Background

A. Assumed Facts Before relating the facts, we fi rst address which facts we must accept or assume for purp oses of this interlocutory appeal of the denial of quali fi ed immunity. The plainti ff s argue we must accept both “the ‘facts that the district court assumed when it denied summary judgment,’ and ... ‘the plainti ff’s version of the facts.’” This misstates the standard establishedby our case law. We are instead presented with a choice between “[s]everal sources of undi sputed facts [that] may frame our review” of the purely legal question presented by a denial of quali fi ed immunity. White v. Gerardot, 509 F.3d 829, 833 (7th Cir. 2007). We may “take, as given, the facts that the district court assumed when it denied summary judgment.” Id. (quoting Washington v. Haupert, 481 F.3d 543, 549 n.2 (7th Cir. 2007)). Alternatively, “we may conduct our review by ‘accepting the plainti ff’s version of the facts.’” Id. ; see also Jewe ttv. Anders , 521 F.3d 818, 819 (7th Cir. 2008). And fi nally, whether we accept the district court’s assumed facts or the plainti ff ’s version of the facts, we may also look to undisputed evidence in the record even if the district court did not consider it. White, 509 F.3d at 833 n.5; see also Thompson v. Cope, 900 F.3d 414, 419 (7th Cir. 2018).No. 19-1930 3

Although we are free to choos e either the district court’s assumed facts or the plainti ff’s version, it is most often appropriate to accept the facts assume d by the district court in its denial of summary judgment. Haupert, 481 F.3d at 549 n.2. Accordingly, we accept the district court’s statement of facts. See Day v. City of Indianapolis , 380 F. Supp. 3d 812, 817–21 (S.D.Ind. 2019). In a few instances, which we note, we look to undisputed evidence not included in the district court’s order but provided elsewhere in the record.Terrell Day was eighteen years old and weighed approximately 312 pounds 1 at the time of his death, with a history of obesity and an underlying heartcondition. On September 26, 2015, Day was confronted by a loss-prevention o ffi cer outsidethe Burlington Coat Factory at Washington Square Mall in Indianapolis after Day apparently shoplifted a watch from the store. Day returned the watch but refused to return to the store with the loss-prevention o ffi cer. A mall security o ffi cer who joined the confrontation noticed Day had a gun in his pocket. There are varying accoun ts of what occurred next, but it is undisputed that a chase ensued in which Day ran out of the mall, through the parking lot, and across a street to a gas station. He there collapsed ona grassy slope. Law enforcement soon arrived in response to a radio call describing an armed shoplifter. At this point, the gun was no longer on Day’s person, but was lying in the grass a few feet away and out of his reach.

O ffi cer Denny, the second o ffi cer to arrive on scene, handcu ff ed Day behind his back with a single set of handcu ff s. He

1 Day’s approximate weight was reco rded in the autopsy report. (Appellant’s Separate Appendix (“S.A.”) at 811.)4 No. 19-1930

testi fi ed that Day’s hands came together easily behind hisback. He noticed Day was overweight, sweating, and breathing heavily. Day told the o ffi cers he was having trouble breathing; O ffi cer Denny told Day he had exerted himself by running and instructed him to take deep breaths in and out to slow his heart rate. O ffi cer Denny otherwise did not observe any signs of distress or of Day’s trouble breathing.

O ffi cer Denny initially instructed Day to remain in an upright seated position, which he believed to be the most comfortable position for Day and ideal for the o ffi cers’ safety. However, Day would not maintain this position, but instead laid down and rolled down the slope. After two a tt empts to keep Day seated upright, O ffi cer Denny instead positioned Day to lie on his side. O ffi cer Denny believed this was the best course of action to prevent Day from asphyxiating by rolling onto his stomach. While repositioning Day, O ffi cer Denny observed Day had defecated on himself. He a tt ributed this to Day having over-exerted himself during the chase. Sergeant Wooten arrived shortly after O ffi cer Denny detained Day. Sergeant Wooten monitored Day while O ffi cerDenny completed his investigative duties as the arresting offi cer. Sergeant Wooten and other o ffi cers repositioned Dayseveral times when he rolled onto his stomach. Day complained to Sergeant Wooten that he could not breathe; however, Sergeant Wooten was skeptical of these complaints because Day also claimed to have done nothing wrong and was asking to be released. All the same, Sergeant Wooten called for an ambulance to evaluate Day approximately fi ve minutes after Day was initially detained. Sergeant Wooten observedthat Day appeared to calm down and began to breathe normally.No. 19-1930 5

The ambulance arrived, and two paramedics examined Day. In response to their questions, Day told the paramedics he had no preexisting medical conditions. He was able tospeak to them in clear, full sentences. Their examination involved multiple tests, including listening to Day’s breathing and checking his heart rate, re spiratory rate, and blood oxygen saturation. 2 Day’s hands remained cu ff ed behind his back throughout the examination. The paramedics concluded Daywas breathing regularly and normally. Based on their examination, the paramedics believed Day did not need to go to a hospital. At that point, the paramedi cs asked Sergeant Wooten to sign a release form so they coul d transfer custody of Day back to law enforcement. Sergeant Wooten did so. The form he signed was called a “Treatment/Transport Refusal,” and is meant to be signed by a patien t when he refuses to be transported to the hospital after being evaluated by paramedics. However, when the paramedics determine a handcu ff ed prisoner does not need to be transported to the hospital, they have

an o ffi cer sign the form as a witne ss of the transfer, not as a representative of the prisoner.

O ffi cer Denny requested a “jail wagon” to transport Day to a detention facility. When the jail wagon arrived, the driver found Day unresponsive. At thatpoint Day was lying on his back on the asphalt with his hands still cu ff ed behind his back. When the driver and Sergeant Wooten a tt empted to stand Day up, his legs straightened and his knees locked. When Day

2 The record is unclear on the duration of this examination, but at argument counsel for the officers estimated it occurred over the course of ten to fifteen minutes.6 No. 19-1930

failed to respond either verbally or physically to two “sternum rubs” (a painful stimulus administered to an unresponsive subject’s chest to invoke a reaction), the driver asked Sergeant Wooten to call a second ambulance.

The second ambulance arrived with a di ff erent team of paramedics, approximately forty-three minutes after the fi rst ambulance had arrived. 3 Sometime between the departure of the fi rst ambulance and the arrival of the second, a second pair of handcu ff s was added to Day’s wrists. 4 When the paramedics arrived, Day’s eyes were open, and he was breathing, buthis pulse was weak. Day was loaded into the back of the ambulance and the paramedics began to perform CPR. After attempting without success to revive Day for 30 minutes, he was pronounced dead. The coroner dispatched to the scene examined Day’s body and found no visible signs of trauma. However, the autopsy report liste d his cause of death as “Sudden Cardiac Death due to Acute Ischemic Change.” Listed as contributory causes were “Sustained respiratory compromise

3 The Coroner’s Report records that the first ambulance arrived at “approximately 1:09 PM” and the second ambulance arrived at “approximately 1:52 PM.” (S.A. at 824–25.) Assu ming the estimation that the firstmedical examination lasted approximately ten to fifteen minutes is accurate, we can surmise that roughly th irty minutes passed between the departure of the first ambulance and the arrival of the second. The exact amount of lapsed time, however, is not important for our purposes.

4 Adding a second pair of handcuff s, by attaching one to each wrist and connecting them in the middle, is a method used on larger arrestees to make the arrestee more comfortabl e by lessening the restrictiveness of the handcuffs. See, e.g. , Estate of Phillips v. City of Milwaukee, 123 F.3d 586, 589 (7th Cir. 1997); Day, 380 F. Supp. 3d at 821.No. 19-1930 7

due to hands cu ff ed behind the back, obesity, underlying cardiomyopathy.” Throughout his time in custody, Day never complained the handcu ff s were too tight. Day complained of trouble breathing, but never indicated th is was caused or exacerbated by the handcu ff s. The fi rst team of paramedics never asked the o ffi cers to remove or modify the handcu ff s or add a second pair. In addition to the coroner’s report that Day exhibited no visible signs of trauma, the autopsy report states there were no “encircling contusions” or lacerations around Day’s wrists. 5 The only indication that the handcu ff s were causing a respiratory issue was the autops y report, which also identifi ed for the fi rst time his underlying heart condition.

B. District Court Proceedings Day’s mother and father sued under § 1983 in September 2017, and the defendants moved for summary judgment. Offi cer Denny and Sergeant Wooten asserted quali fi ed immunity. After considering the summa ry judgment motion, the district court held O ffi cer Denny and Sergeant Wooten were not entitled to quali fi ed immunity. The court fi rst determined it could not hold as a ma tt er of law the o ffi cers had not violated Day’s Fourth Amendment right ag ainst unreasonable seizure. Day, 380 F. Supp. 3d at 824–26. The court next concluded “reasonable o ffi cers would know they were violating an established right by leaving Day’s hands cu ff ed behind his back after he complained of di ffi culty breathing.” Id. at 827. In arriving at this conclusion, the district court cited an unreported district court case to establish that o ffi cers act

5 (S.A. at 811.)8 No. 19-1930

unreasonably by failing to consider an injury or condition when handcu ffi ng an arrestee. Id. (citing Salyers v. Alexandria Police Dep’t, 2016 WL 2894438, at *3 (S.D. Ind. May 18, 2016)). The district court also quoted a decision of this court for the proposition that using excessively tight handcu ff s and yanking the arms of non-resistin g, non-dangerous arrestees suspected of commi tt ing only minor crimes is clearly established as unlawful. Id. (quoting Payne v. Pauley, 337 F.3d 767, 780 (7th Cir. 2003)). Based on these cases, and the fact that Day complained of di ffi culty breathing and the o ffi cers “observed some signs of distress,” the court held the o ffi cers’ conduct was clearly established as a violation of Day’s rights. Id. at 828. The court denied quali fi ed immunity. The o ffi cers appealed.

II. Discussion

A. Jurisdiction

We fi rst address jurisdiction. Appellate jurisdiction is limited to review of fi nal decisions of the district courts. 28 U.S.C. § 1291. Although we generally may not review a district court’s order until a fi nal judgment is entered resolving all claims of all parties, the fi nality requirement is satis fi ed wherea collateral order “conclusively determines a disputed question that is separate from the merits of the case and is e ff ectively unreviewable on an appeal from the fi nal judgment.” Jones v. Clark , 630 F.3d 677, 679 (7th Cir. 2011) (citing Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)). A summary judgment order denying quali fi ed immunity to a public o ffi

cial defendant is such an order that can be immediately reviewable “to the extent that it turns on an issue of law.” Id. (citing Mitchell v. Forsyth , 472 U.S. 511, 528–30 (1985)).No. 19-1930 9

The plainti ff s assert we lack jurisdiction over this appealbecause the defendants, despite claiming to concede the district court’s assumed facts viewed in the light most favorable to the plainti ff s, are asserting their ow n preferred version of facts on disputed questions. We have already discussed why the plainti ff s are wrong to argue that we and the defendants must accept the plainti ff s’ version of the fa cts in this appeal.It is true, however, that we cannot decide disputed fact questions in a quali fi ed immunity appeal. We only have jurisdiction “when the party seeking to invoke it makes a purely legal argument that does not depend on disputed facts.” White, 509 F.3d at 833. Therefore, we must fi rst determine whether the defendants’ argument depends ondisputed issues of fact, which would preclude our review. The primary factual dispute identi fi ed by the plainti ff s is whether the fi rst team of paramedics’ medical evaluation was terminated because Day was me dically cleared or because Wooten refused further medical treatment. They assert the district court acknowledged this as a disputed issue by stating “Plainti ff s believe Sergeant Wooten refused hospitalizationon Day’s behalf, and had he not signed the Treatment/Transport Refusal form, the paramedics may have decided to transport Day to the hospital.” Day, 380 F. Supp. 3d at 820. At argument, the plainti ff s also pointed to evidence that the paramedics may have in cluded false information intheir medical report or may have been prevented from conducting a full examination due to Day’s hands being cu ff ed behind his back.

As an initial ma tt er, the suggestion that the paramedics included false information in thei r report or failed to properly complete a full evaluation are irrelevant to what O ffi cer10 No. 19-1930

Denny and Sergeant Wooten knew at the time of the incident. Our analysis hinges on whether reasonable o ffi cers under the circumstances would know thei r conduct violated a clearly established right. Mullenix v. Luna , 136 S. Ct. 305, 308 (2015); Sow v. Fortville Police Dep’t, 636 F.3d 293, 303 (7th Cir. 2011) (holding that, in an excessive fo rce case, “the ‘reasonableness’ of the use of force is judged fr om the perspective of a reasonable o ffi cer on the scene”). Therefore, the only relevant question is what the parame dics communicated to the o ffi cers at the scene. The district court recognized as undisputed that the paramedics concluded, based on their evaluation, “Day did not need to be transported to the hospital for medical treatment.” Day, 380 F. Supp. 3d at 820. The paramedics testi fi ed that law enforcement has no authority to refuse transport to a hospital if the medical personnel believe hospitalization is necessary.Sergeant Wooten could not terminate the examination because he had no authority to do so. The district court also found that when an o ffi cer signs for a handcu ff ed arrestee, he “signs this form as a witness to the transfer, not as a representative of the detainee,” and that the medics require an offi cer to sign the form “when [they] decide that a handcu ff ed prisoner is not going to go to the hospital.” Id. Thus, regardless of the title or intended us e of the form Sergeant Wooten signed, there is no genuine di spute that the paramedics concluded their evaluation because they believed Day did not need further treatment.Moreover, even assuming a factual dispute exists regarding the termination of the examination, we need not resolve that dispute to reach our conclusion today. Even if the o ffi cers were not entitled to rely on the judgment of the medicalNo. 19-1930 11

professionals, they were still entitled to quali fi ed immunity because there was no clearly established law to put the o ffi cers on notice that handcu ffi ng Day under the circumstances of this case violated his constitutional rights. The plainti ff s also dispute whether a second pair of handcu ff s was added to Day’s wrists and, if so, when it was added. But the district court assumed in its statement of facts that a second pair of handcu ff s was added, and that the second pair was added before the second ambulance arrived. Id. at 821.Since we accept the district court’s assumed facts for this appeal, we assume this as well. Furthermore, as we explain below, the addition of the second pair of handcu ff s does notchange the outcome of this case. Accordingly, we have jurisdiction to address the purely legal question presented by this appeal.

B. Denial of Quali fi ed Immunity

We review de novo a district court’s denial of summary judgment on a quali fi ed immunity defense. Rooni v. Biser , 742 F.3d 737, 740 (7th Cir. 2014). As explained previously, we accept the facts assumed by the district court and the undisputed record evidence viewed in the light most favorable to the plainti ff s. White, 509 F.3d at 833 & n.5. A public o ffi cial defendant is entitled to quali fi ed immunity unless two disqualifying criteria are met. First, the evidence construed in the light most favorable to the plainti ff must support a fi nding that the defendant violated the plainti ff’s constitutional right. Second, that right must have been clearly established at the time of the violation. Stainback v. Dixon , 569 F.3d 767, 770 (7th Cir. 2009). Courts may “exercise their sound discretion in decidingwhich of the two prongs of12 No. 19-1930

the quali fi ed immunity analysis should be addressed fi rst in light of the circumstances in the particular case at hand.” Pearson v. Callahan , 555 U.S. 223, 236 (2009). “A clearly established right is one that is ‘su ffi ciently clear that every reasonable offi cial would have understood that what he is doingviolates that right.’” Mullenix , 136 S. Ct. at 308 (emphasis added). The Fourth Amendment protects an individual’s right to be free from unreasonable seizures of his person. U.S. Const. amend. IV. When an o ffi cer uses greater force than reasonably necessary to make an arrest, he violates the arrestee’s Fourth Amendment right. Payne v. Pauley, 337 F.3d 767, 778 (7th Cir. 2003). Importantly, “the ‘reasonabl eness’ of the use of force is judged from the perspective of a reasonable o ffi cer on the scene, rather than with the 20/20 vision of hindsight.” Sow, 636 F.3d at 303. To defeat quali fi ed immunity, however, the right must be de fi ned more speci fi cally than simply the general right to be free from unreasonable seizure. The Supreme Court has stated that “[s]peci fi city is especially important in the Fourth Amendment context, where ... it is sometimes di ffi cult for an

o ffi cer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the o ffi cer confronts.” Kisela v. Hughes , 138 S. Ct. 1148, 1152 (2018).

The district court de fi ned the rights at issue as Day’s right to be free from excessively tight handcu ff s and his right to have the o ffi cers consider his injury or condition in determining the appropriateness of the handcu ff positioning. The court concluded that the o ffi cers’ conduct violated those rights.However, there is no Seventh Circuit precedent clearly establishing that the conduct the o ffi cers engaged in violated either of those rights.No. 19-1930 13

The plainti ff s point to Payne v. Pauley, 337 F.3d 767 (7th Cir. 2003), and identify it as the bestcase to clearly establish the right to be free from excessively tight handcu ff s. The district court quoted and cited this case for that principle as well. In Payne, we established the following right: “it was unlawful to use excessively tight handcu ff s and violently yank the arms of arrestees who were not resist ing arrest, did not disobey the orders of a police o ffi cer, did not pose a threat to the safety of the o ffi cer or others, and were suspected of commi tt ing only minor crimes.” Id. at 780. In Payne, the plainti ff alleged (and we accepted for purposes of the appeal) that two police o ffi cers grappled and struggled over her arm for thirty minutes as they argued about who would handcu ff her, jerked her arm behind her back, slammed handcu ff s onto her wrist, tightened them so tight that she experienced pain and numbnessin her hands, and refused to loosen them when she complained. Id. at 774–75. The plainti ff alleged she was treated this way even though she wa s not resisting and had committed no o ff ense other than voicing disagreement with an irate

o ffi cer’s racist remarks. Id. Payne does not help the plainti ff s because it involves circumstances and conduct drastically di ff erent than this case. Day was suspected of shoplifting while armed with a gun, a much more serious o ff ense than the plainti ff in Payne (who had allegedly done nothing wrong). It is also undisputed thatDay was not cooperative: he repeatedly changed position despite the o ffi cer’s instructions to remain seated upright, and he argued with the o ffi cers to let him go. More importantly, O ffi cer Denny and Sergeant Wooten did not violently yank or jerk Day’s arms and shoulders, or any of Day’s person for that

ma tt er. Furthermore, the handcu ff s in Payne were much tighter than they needed to be to accomplish the purpose of14 No. 19-1930

detaining the arrestee, to the poin t of causing visible physical injury. There is no sugg estion that the handcu ff s used on Daywere any tighter than would have been typically used to restrain an arrestee in similar circ umstances. In fact, the coroner noted no visible signs of traum a, and the autopsy report indicated no lacerations or contusions on Day’s wrists. The rule announced in Payne is inapposite. The other cases pointed to by the plainti ff s to establish a right to be free from excessively tight handcu ff s— Tibbs v. City of Chicago , 469 F.3d 661 (7th Cir. 2006), and Rooni v. Biser , 742 F.3d 737 (7th Cir. 2014)—similarly fail to clearly establish that the o ffi cers’ conduct violated that right. Tibbs recognized that, under certain circumstances, the use of excessively tight handcu ff s might constitute excessive force in violation of the Fourth Amendment. 469 F.3d at 666 (citing Payne, 337 F.3d at 767). However, we held the o ffi cer’s actions in that case were objectively reasonable where the plainti ff complained “once about his handcu ff s without elaborating on any injury, numbness, or degree of pain.” Id. Thus, Tibbs establishes that, absent any indication an o ffi cer is aware the handcu ff tightness or positioning is causing unnecessary pain or injury, the o ffi cer acts reasonably in not modifying the handcu ff s. Likewise, Rooniestablishes the right of a person “to be free from an o ffi cer’s knowing use of handcu ff s in a way that would in fl ict unnecessary pain or injury, if that person presents li tt le or no risk of fl ight or threat of injury.” 742 F.3d at 742. Once again, the key fact is that the o ffi cer must know the handcu ff s will cause unnecessary pain or injury. Roonifocused on the importance of multiple and speci fi c complaints by the arrestee about the nature of his pain or injury. Id. at 742–43 (collecting cases, distinguishing Tibbs becauseNo. 19-1930 15

“plainti ff complained the handcu ff s were on too tight but didnot indicate the degree of pain,” and a case in which the plainti ff complained once but did not elaborate on degree or nature of pain). Because the plainti ff complained only once that the handcu ff s were too tight without further elaboration, we concluded “there was nothing that would have alerted [the offi cer] to the fact that a constitutional violation was looming.” Id. at 743. Day never complained that the tightness of the handcu ff s was restricting his breathing. Th e record contains no evidence that there was any indication the handcu ff s were the cause of Day’s breathing di ffi culty until the autopsy report was released. Thus, Day’s right “to be free from an o ffi cer’s knowing use of handcu ff s in a way that would in fl ict unnecessary pain or injury” was not violated. 6 The closely related right assert ed by the dist rict court and the plainti ff s is the right to have the arresting o ffi cer consider the arrestee’s injury or condition when handcu ffi ng the arrestee. The district court erred, however, by relying on Salyers v. Alexandria Police Departmentfor the principle that “o ffi cers act unreasonably by failing to consider an injury or condition while handcu ffi ng an individual.” Day, 380 F. Supp. 3d at 827. Salyers is an unreported district court opinion. We have conclusively stated that district court opinions cannot clearly establish a constitutional right because they are not binding precedential authority. Mason-Funk v. City of Neenah , 895 F.3d

6 We reach this conclusion even without relying on the additional facts that the first paramedic team found Da y’s breathing and oxygen levels to be good, never requested or attempte d to modify Day’s handcuffs, and concluded he did not need to be ho spitalized for further medical treatment.16 No. 19-1930

504, 509 (7th Cir. 2018). Therefore, if the right relied upon in Salyers is a clearly established one, it must be clearly established by some other source. Salyers relied on, and the plainti ff s direct our a tt ention to, our 2009 decision in Stainback v. Dixon , 569 F.3d 767 (7th Cir.2009). That case involved an arrestee with preexisting armand-shoulder injuries that we re exacerbated when law enforcement handcu ff ed him behind his back. The arrestee in Stainback complained the handcu ff s were hurting his shoulders, but never told the o ffi cers of his preexisting injuries. If the o ffi cers had known of the preexisting injury, we agreed“they certainly would have been obligated to consider that information, together with the other relevant circumstances, in determining whether it was appropriate to handcu ff ” the arrestee. Id. at 773. However, we held the o ffi cers were entitled to quali fi ed immunity because they did not use the handcu ff s“in a manner that would clearly injure or harm a typical arrestee,” and it was not apparent to the o ffi cers, nor were they informed, that the arrestee had a preexisting condition that could be aggravated by the handcu ff s. Id. “[A] reasonable offi cer cannot be expected to accommodate an injury that is not apparent or that otherwise has not been made known to him.” Id. Thus, Stainback only clearly establishes the right to have a known injury or condition considered, together with other circumstances, by o ffi cers when handcu ffi ng. Stainback fails to clearly establish that O ffi cer Denny and Sergeant Wooten’s conduct was violative. Just as the arrestee in Stainbackcomplained generally of shoulder pain but never explained the effect of the handcu ff s on his preexisting injury, Day complained he was having tr ouble breathing but neverNo. 19-1930 17

complained that this was caused or exacerbated by his handcu ff s as opposed to his exertionduring the chase preceding his arrest. The o ffi cers (and apparently Day himself) were alsounaware of Day’s underlying heart condition, which also contributed to his lack of oxygen according to the autopsy report.

In Stainback , we acknowledged “in some cases, the fact that an act will cause pain or injury will be clear form the nature of the act itself.” Id. at 772. We concluded, however, that it would not be clear to the o ffi cers that the arrestee’s shoulder pain was caused by the act of cu ffi ng his hands behind his back. Id. at 773. It is even less obvious under the circumstances of this case that Day’s troubl e breathing was caused by handcu ffpositioning. The record does not show this would be apparent to the o ffi cers at the time of the arrest. 7Accordingly, like the right in Payne , Rooni, and Tibbs , the right at issue in

7The plaintiffs suggest that the addition of a second pair of handcuffs before the second ambulance arrived is evidence of the officers’ awareness that the single pair of handcuffs had been restricting Day’s breathing. This is entirely speculative and goes well beyond a reasonable inference to which the plaintiffs are entitled. See White v. City of Chicago , 829 F.3d 837, 841 (7th Cir. 2016). Adding a second pair of handcuffs indisputably provides more comfort to an arrestee; ther e is no reason to believe the second pair was added to relieve Day’s breathing as opposed to simply providing more comfort to an arrestee who, at that late point, was obviously suffering a medical trauma. In fact, the dist rict court found the officers added the second pair of handcuffs at that point “because they believed Day was having a medical problem,” not because they specifically understood the handcuffs were causing his breathing di fficulty. Furthermore, even if theaddition of the second pair of handcuffs is evidence that the officers became aware that the first pair was restricting his breathing, it would then also be evidence that the officers did consider Day’s medical condition and modified the handcuffs when it became apparent they were causing a problem. Either way, this fact does not help the plaintiffs.18 No. 19-1930

Stainback to have a known injury or condition considered by

o ffi cers when handcu ffi ng an arrestee is no t implicated by the facts of this case. Given the facts as assumed by the district court and the information known to the o ffi cers at the time of the arrest, the only right plainti ff s can assert would be the right of an out-ofbreath arrestee to not have his hands cu ff ed behind his back after he complains of di ffi culty breathing. We fi nd no Seventh Circuit precedent clearly establishing such a right. The cases relied upon by the distri ct court and the plainti ff s present circumstances far di ff erent, and therefore cannot clearly establish that the o ffi cers’ conduct violated Day’s rights. One further point must be addressed. The Supreme Courthas stated that even in the absence of existing precedent addressing similar circumstances, “there can be the rare ‘obvious case,’ where the unlawfulness of the o ffi cer’s conduct is

su ffi ciently clear.” District of Co lumbia v. Wesby, 138 S. Ct. 577, 590 (2018). This case is certainl y not one of those rare obvious cases. As already discussed, the handcu ff s were used in a manner that would not have harmed an average arrestee, and there is no evidence the o ffi cers were aware the handcu ff s were causing Day’s breathing trouble. The o ffi cers’ conduct under the circumstances was not obviously unlawful.

III. Conclusion

This case arose from an un fortunate tragedy. However, the o ffi cers did not violate any clearly established right. Accordingly, the district court’s judgment denying O ffi cer Denny and Sergeant Wooten’s quali fi ed immunity defense isREVERSED and the case is REMANDED for proceedings consistent with this opinion.