### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 17

‐ 1757

J AMES H ORTON

,

as the Independent Administrator

of the Estate of Michael DeAngelo Sago, Jr.,

Plaintiff

‐ Appellant

,

v.

F RANK P OBJECKY

,

G ARY C ARUANA

, and

W INNEBAGO C OUNTY

, Defendants

‐ Appellees

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Western Division.

No. 12 C 7784

— Frederick J. Kapala

, Judge

.

____________________

A RGUED N OVEMBER 1, 2017

— D ECIDED F EBRUARY 27, 2018

____________________

Before M ANION

, K ANNE

, and R OVNER

, Circuit Judges

.

M ANION

, Circuit Judge

. Sixteen

‐ year

‐ old Michael

DeAngelo Sago, Jr., and three other young men attempted to

rob a pizzeria at gunpoint. Frank Pobjecky, an off

‐ duty police2 No. 17

‐ 1757

officer waiting for a pizza, shot and killed Michael. 1 James

Horton, as administrator of Michael’s estate, brought various

federal and state claims against Pobjecky and others. The

district court granted summary judgment for Defendants on

all claims, concluding Pobjecky’s use of deadly force was

reasonable and justified, and did not violate the Fourth

Amendment. We affirm.

I. F ACTS

A. Surveillance Videos

On review of summary judgment, we view the facts in the

light most favorable to the nonmovant and draw reasonable

inferences in his favor. Anderson v. Liberty Lobby, Inc.

, 477 U.S.

242, 255 (1986); Yahnke v. Kane County, Ill.

, 823 F.3d 1066, 1070

(7th Cir. 2016). The parties agree about some facts, but they

vigorously contest others.

Four cameras captured surveillance videos of portions of

the events. According to the videos, the encounter lasted less

than a minute. The first video shows the parking lot and

sidewalk outside the front door of Marie’s Pizza in Rockford,

Illinois. The second video shows the same area from a

different angle. The third video shows the kitchen. The fourth

video shows the front door, entrance area, counter, and cash

register from inside the pizzeria. Although on summary

judgment we generally view the facts in the light most

favorable to the nonmovant, in rare circumstances when

video footage clearly contradicts the nonmovant’s claims, we

may consider that video footage without favoring the

1 We refer to Decedent Michael Sago and to Brandon Sago, another

assailant, by their first names because they share a surname.No. 17

‐ 1757 3

nonmovant. Scott v. Harris

, 550 U.S. 372, 378–81 (2007) (“The

Court of Appeals

... should have viewed the facts in the light

depicted by the videotape.”). This is because on summary

judgment we view the facts in the light most favorable to the

nonmovant only if there is a genuine dispute about those

facts. Id. at 380. When video footage firmly settles a factual

issue, there is no genuine dispute about it, and we will not

indulge stories clearly contradicted by the footage. Of course,

videos are sometimes unclear, incomplete, and fairly open to

varying interpretations. The story here is very short and

violent.

B. Armed Robbery

Late Saturday evening, October 1, 2011, Frank Pobjecky,

an unarmed off

‐ duty police officer, waited for the pizza he

ordered at Marie’s Pizza. He was the only customer inside.

He was in the break area with Vincenzo Tarara (the restaurant

manager) and David Weidner (the delivery driver). Andres

Briseno (the cook) was in the kitchen.

The break area was separated by a cooler from the public

entrance area depicted by the fourth video. No video

captured the break area or the cooler. Tarara carried a

concealed semi

‐ automatic handgun on his hip. Pobjecky

knew about it.

Suddenly four young men entered the front door of the

pizzeria. The videos show the first of these men entering at

timestamp 22:26:32. One of these men, Lamar Coates, held a

revolver. He and Brandon Sago barged into the break area

separated from the entrance by the cooler. Desmond Bellmon

skirted the counter and attacked the cash register. Michael

arrived at the front door last, and stood in the entrance,4 No. 17

‐ 1757

holding the door open. He was the lookout. 2 All four

assailants wore sweatshirts with hoods up. Michael wore a

light color, while the others wore a dark color.

Tarara heard the door chime when the assailants entered.

He approached the front area and encountered Coates,

Brandon, and Bellmon. Tarara did not surrender. Instead he

yelled, “get the hell out of here, you’re not getting any of my

f’ing money.” Pobjecky and Tarara testified that Coates

pointed his gun at each of them and demanded money. In

response to Pobjecky’s Local Rule 56.1 statement of facts,

Horton denied that Coates threatened Pobjecky or Tarara,

demanded money, or said anything before the struggle for

Coates’s weapon began. But in Horton’s answer to Pobjecky’s

request to admit facts, Horton had already admitted Coates

threatened Pobjecky or Tarara, and maybe both, with a gun.

According to Horton, Tarara reached for his own weapon,

reconsidered, slammed Coates against the cooler, and

struggled for Coates’s revolver. For several terrifying seconds

Tarara and Coates both had their hands on Coates’s gun.

Tarara testified Coates tried to shoot him. Tarara fought for

his life. He testified he could see a round down the barrel, and

he could feel Coates trying to pull the trigger. Horton

disputed below whether Coates tried to pull the trigger

during the struggle, but the district court found this issue

immaterial.

There is ultimately no dispute that Coates approached

Tarara and Pobjecky with a gun and threatened at least one of

2 In his response to Pobjecky’s Local Rule 56.1 statement of facts, Horton

denied Michael was the lookout. But during oral arguments before us,

counsel for Horton acknowledged Michael was the lookout.No. 17

‐ 1757 5

them with it, and that Tarara grabbed Coates’s gun and

struggled for possession of it. According to Horton, the

struggle for Coates’s gun only involved Coates and Tarara.

Pobjecky tried to grab Tarara’s gun from his hip. Brandon and

Bellmon joined the melee. No cameras captured the skirmish

for the guns.

Michael did not join the struggle. He never grabbed for a

gun. The fourth video shows Michael and Bellmon turn their

heads toward the struggle at timestamp 22:26:46, apparently

as soon as they heard the struggle begin. Bellmon left the

counter at about 22:26:47 and entered the break area. But the

video shows Michael remained at the front door for a few

seconds. Then at about 22:26:51 he left the front door and

approached the area of the struggle, off camera.

The parties dispute what Michael did during the struggle

for control of the guns. Horton claims Michael was not

involved in the struggle, never grabbed for a gun, and just

stood near the area with his arms down by his side doing

nothing during the struggle. Horton points to the testimony

of Pobjecky that Michael’s arms were down by his side.

Horton insists the record shows Michael never grabbed for a

gun or scuffled for a gun, never tussled with anyone, never

touched a gun, and did nothing during the struggle.

Defendants, however, characterize Michael as inserting

himself into the situation by entering the pizzeria and quickly

approaching the struggle. At this stage, we accept Horton’s

view of the facts. With the possible exception of partial,

fleeting shapes in the bottom left

‐ hand corner of the fourth

video, the struggle for control of the guns occurred entirely

off camera. Pobjecky gained possession of Tarara’s gun, and

Tarara won the struggle for Coates’s gun.6 No. 17

‐ 1757

Horton claims that once Coates lost the struggle for his

gun, he turned, headed for the exit, and saw Pobjecky two feet

away pointing a gun at him as Tarara held the other gun.

Pobjecky then shot Coates in the back without warning,

holding the gun over Tarara’s right shoulder. Bellmon ducked

for cover behind the counter, and Brandon headed for the exit.

According to Appellees, Pobjecky fired the first shot at

timestamp 22:26:56, about 10 seconds after Michael and

Bellmon first turned toward the struggle when it apparently

began. Horton does not dispute this account, and the videos

seem to support it. Pobjecky did not announce he was a police

officer or order anyone to stop. Pobjecky claims he did not

have enough time to do that. With Tarara’s gun, Pobjecky

engaged each criminal suspect as they moved around the

pizzeria. He shot Coates, Brandon, and Bellmon. According

to Horton (citing Coates’s testimony) Pobjecky had a look of

anger, not fear, on his face when he shot Coates. Pobjecky did

not give verbal warnings or commands to the assailants

before shooting them.

Pobjecky shot Brandon as he headed for the door.

Pobjecky and Tarara both pointed guns when Brandon exited,

but only Pobjecky fired. During a break in the shooting,

Bellmon headed for the door. Pobjecky shot at him but

missed, although earlier in the incident Pobjecky shot him in

the buttocks.

Pobjecky then shot Michael three times in the lower back.

The parties dispute the circumstances immediately

surrounding Pobjecky’s shooting of Michael. Horton claims

Pobjecky shot Michael three times as Michael crawled away

from Pobjecky and toward the door. Horton claims Pobjecky

did not consider Michael a threat because Pobjecky turned hisNo. 17

‐ 1757 7

back on Michael before shooting him despite being trained

never to turn his back on a threat.

But Pobjecky claims Michael bolted toward him from

behind, coming within one or two feet of him, and startling

him. Pobjecky claims he shot Michael as Michael advanced

toward Pobjecky. Responding to the argument that turning

his back on Michael showed he did not consider Michael a

threat, Pobjecky notes that this argument wrongfully assumes

he knew where Michael was before shooting him, and

overlooks the fact that Pobjecky was outnumbered by

multiple assailants who scattered to various directions. The

district court generally characterized Michael as “crawling”

while Pobjecky shot him. The video supports that view. And

Pobjecky acknowledged during his testimony that when he

shot Michael, Michael’s hands and feet were on the ground.

Pobjecky also testified that he did not shoot Michael to stop

him from escaping.

The fourth video does not definitively resolve all these

issues. It shows Michael leave the screen at about 22:26:52. He

re

‐ enters the screen at about 22:27:05. He appears to crawl

past Pobjecky and toward the door, and Pobjecky appears to

turn to face Michael. Pobjecky appears to fire the first shot

into Michael at about 22:27:05 after Michael already passed

Pobjecky. Pobjecky fired three shots into Michael, all from

behind. The video seems to contradict Pobjecky’s claim that

“Decedent was advancing towards Pobjecky when he was

shot” (Appellees’ Br. at 23) and that “he was shot as he

approached Pobjecky from behind and fled to the door” ( Id.

at 26). Rather, the video seems to show Pobjecky shot Michael

the first time a split

‐ second after Michael crawled past

Pobjecky and away from him and toward the door. Pobjecky8 No. 17

‐ 1757

then shot Michael two more times from behind as Michael

attempted to crawl out of the pizzeria. The gunshot wounds

showing the three bullets entered Michael’s back also

contradict Pobjecky’s claim that he shot Michael as he

advanced toward Pobjecky.

In the light most favorable to Horton, the video and

gunshot wounds support his account that Pobjecky shot

Michael from behind three times as Michael crawled away

from Pobjecky and toward the door, and Pobjecky did not

shoot Michael as he advanced toward Pobjecky. But the video

also demonstrates Pobjecky was in close quarters with

multiple, moving, potentially armed assailants, who forced

him to make split

‐ second, life

‐ or

‐ death decisions. And the

video also shows that Michael approached Pobjecky’s area

generally from behind a split

‐ second before Pobjecky turned

and shot him.

According to the videos, the entire encounter lasted about

36 seconds from the moment the first assailant entered the

front door at about 22:26:31 to the moment Pobjecky shot

Michael the third time as he crawled out the front door at

about 22:27:07. 3

At about 22:27:16, Pobjecky locked the front door. Michael

was prostrate on the sidewalk just outside that door. Pobjecky

did not exit the pizzeria until police arrived, because he feared

3 At oral argument, counsel for Horton claimed the timestamps on the

video footage are wrong, and that the events actually lasted at least twice

as long as the timestamps indicate. Horton disputed the accuracy of the

timestamps below, but the district court found he failed to provide any

supporting evidence, and therefore concluded it could properly rely on

the timestamps. Horton did not raise this issue in his appellate brief, so he

waived it.No. 17

‐ 1757 9

for his life and the lives of others. He had no more bullets. He

claims he did not know who had Coates’s gun and he did not

know whether anyone had another gun. But Horton claims

Pobjecky knew (or must have known) Tarara had Coates’s

gun because Pobjecky stood close to Tarara who was openly

holding Coates’s gun during a portion of the encounter. At

this stage, we accept Horton’s view.

Pobjecky told Tarara to call 911. Tarara tried but had

trouble, so Weidner called 911. The Winnebago County 911

Center received a call at 10:34 p.m. and dispatched police and

paramedics. Pobjecky also placed a call on a direct line he had

to a dispatcher. Briseno hit a panic button alerting authorities

during the incident, at 22:26:52. Paramedics arrived about 11

minutes after Pobjecky shot Michael.

Pobjecky claims he did not see Michael prostrate on the

sidewalk outside the pizzeria’s front door until after police

arrived. But Horton claims it is reasonable to infer Pobjecky

knew Michael’s location, and we accept that at this stage.

There is no dispute Pobjecky shot Michael three times in

the lower back. An autopsy showed the bullets travelled

upward through Michael’s body, fracturing ribs, damaging

multiple organs including his heart, and killing him. Horton

claims Michael could have survived his wounds without

treatment for five to forty minutes. Horton claims Weidner

called 911 seven minutes after Pobjecky shot Michael, and

paramedics arrived four minutes later. Marie’s Pizza was

very close to a hospital.

Coates was the only assailant to bring a gun into the

pizzeria that night. But Pobjecky did not know that, and had

no way to know that. Pobjecky fired the only shots in the10 No. 17

‐ 1757

pizzeria that night. He shot all four assailants, and only in the

back parts of their bodies. He never identified his office or

gave any verbal warnings or commands before shooting.

Tarara had Coates’s gun during much of the incident, but

never fired it.

All three surviving assailants were convicted of felony

murder.

II. Procedural Posture

Horton, as administrator of Michael’s estate, sued

Winnebago County Sheriff’s Deputy Pobjecky; Winnebago

County, Illinois; and Winnebago County Sheriff Gary

Caruana. Count I brought a claim under 42 U.S.C. § 1983

against Pobjecky and the Sheriff for excessive force. Count II

brought a claim under § 1983 against Pobjecky for failure to

provide medical care. Counts III, IV, and V brought state

‐ law

claims against Pobjecky and the Sheriff. Count VI brought

state

‐ law indemnification claims against the County and the

Sheriff.

The district court granted summary judgment for

Defendants on all claims.

III. Discussion

We review a grant of summary judgment de novo,

construing the facts and making reasonable inferences in

favor of the nonmovant. W. Side Salvage, Inc. v. RSUI Indem.

Co.

, 878 F.3d 219, 222 (7th Cir. 2017). We may affirm on any

ground supported in the record, as long as that ground was

adequately addressed below and the nonmovant had an

opportunity to contest the issue. Cardoso v. Robert Bosch Corp.

,

427 F.3d 429, 432 (7th Cir. 2005).No. 17

‐ 1757 11

Summary judgment is appropriate only “if the movant

shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.”

F ED

. R. C IV

. P. 56(a). The parties must support their assertions

that a fact cannot be or is genuinely disputed by citing to

“particular parts of materials in the record, including

depositions, documents, electronically stored information,

affidavits or declarations, stipulations (including those made

for purposes of the motion only), admissions, interrogatory

answers, or other materials

... .” F ED

. R. C IV

. P. 56(c)(1); see

Celotex Corp. v. Catrett

, 477 U.S. 317, 322–23 (1986). We view

the facts in the light most favorable to Horton and draw

reasonable inferences in his favor. Anderson

, 477 U.S. at 255;

Yahnke

, 823 F.3d at 1070.

As below, Horton argues on appeal that genuine issues of

material fact preclude summary judgment. The district court

recognized that the parties presented different versions of the

facts, but agreed with Defendants that the factual disputes

were immaterial.

A. Excessive Force

Sometimes a police officer’s use of deadly force is

reasonable and therefore constitutional. A police officer’s use

of deadly force on a suspect is a seizure within the meaning

of the Fourth Amendment, so the force must be reasonable to

be constitutional. Scott v. Edinburg

, 346 F.3d 752, 755 (7th Cir.

2003). The Supreme Court set out the fundamental

framework for analyzing excessive

‐ force claims in Tennessee

v. Garner

, 471 U.S. 1 (1985), and Graham v. Connor

, 490 U.S. 386

(1989). See County of Los Angeles, Calif. v. Mendez

, 137 S. Ct.

1539, 1547 (2017). Graham and Garner stand for the proposition

that a suspect has a constitutional right not to be shot by an12 No. 17

‐ 1757

officer unless he “reasonably believes that [the suspect] poses

a threat to the officer or someone else.” Weinmann v. McClone

,

787 F.3d 444, 450 (7th Cir. 2015).

Thus, a police officer may constitutionally use deadly

force to defend himself and others in certain situations. “It is

clear that, when an individual threatens a police officer with

a deadly weapon, the officer is permitted to use deadly force

in self

‐ defense if the use is consistent with the principles set

forth in Tennessee v. Garner .” Scott

, 346 F.3d at 757. When an

officer reasonably believes an assailant’s actions place “him,

his partner, or those in the immediate vicinity in imminent

danger of death or serious bodily injury, the officer can

reasonably exercise the use of deadly force.” Sherrod v. Berry

,

856 F.2d 802, 805 (7th Cir. 1988) (emphasis omitted). An

officer does not violate the Fourth Amendment by firing at a

suspect when the officer “reasonably believed that the suspect

had committed a felony involving the threat of deadly force,

was armed with a deadly weapon, and was likely to pose a

danger of serious harm to others if not immediately

apprehended.” Ford v. Childers

, 855 F.2d 1271, 1275 (7th Cir.

1988).

As a form of defense of others, a police officer also may

sometimes constitutionally use deadly force to prevent

escape.

Where the officer has probable cause to believe

that the suspect poses a threat of serious

physical harm, either to the officer or to others,

it is not constitutionally unreasonable to

prevent escape by using deadly force. Thus, if

the suspect threatens the officer with a weapon

or there is probable cause to believe that he hasNo. 17

‐ 1757 13

committed a crime involving the infliction or

threatened infliction of serious physical harm,

deadly force may be used if necessary to

prevent escape, and if, where feasible, some

warning has been given.

Tennessee v. Garner

, 471 U.S. 1, 11–12 (1985).

Determining whether the force was reasonable under the

Fourth Amendment requires “a careful balancing of the

nature and quality of the intrusion on the individual’s Fourth

Amendment interests against the countervailing

governmental interests at stake.” Graham v. Connor

, 490 U.S.

386, 396 (1989) (internal quotation marks omitted). This

reasonableness test “requires careful attention to the facts and

circumstances of each particular case, including the severity

of the crime at issue, whether the suspect poses an immediate

threat to the safety of the officers or others, and whether he is

actively resisting arrest or attempting to evade arrest by

flight.” Id. “The operative question in excessive force cases is

‘whether the totality of the circumstances justifie[s] a

particular sort of search or seizure.’” Mendez

, 137 S. Ct. at 1546

(quoting Garner

, 471 U.S. at 8–9).

The test is objective reasonableness. Graham

, 490 U.S. at

396. A plaintiff must show the officer’s use of force was

objectively excessive from the perspective of a reasonable

officer on the scene under the totality of the circumstances. Id.

at 396–97; Bell v. Irwin

, 321 F.3d 637, 639 (7th Cir. 2003).

We evaluate excessive

‐ force claims for objective

reasonableness based on the information the officers had at

the time. Mendez

, 137 S. Ct. at 1546–47. “What is important is

the amount and quality of the information known to the14 No. 17

‐ 1757

officer at the time he fired the weapon when determining

whether the officer used an appropriate level of force.”

Muhammed v. City of Chi.

, 316 F.3d 680, 683 (7th Cir. 2002)

(citation omitted).

The actual officer’s subjective beliefs and motivations are

irrelevant. Scott

, 346 F.3d at 756. “An officer’s evil intentions

will not make a Fourth Amendment violation out of an

objectively reasonable use of force; nor will an officer’s good

intentions make an objectively unreasonable use of force

constitutional.” Graham

, 490 U.S. at 397.

Also, we must refuse to view the events through

hindsight’s distorting lens. Id. at 396. We must consider the

totality of the circumstances, including the pressures of time

and duress, and the need to make split

‐ second decisions

under intense, dangerous, uncertain, and rapidly changing

circumstances. See Ford

, 855 F.2d at 1276. We must recognize

that in such circumstances, officers often lack a judge’s luxury

of calm, deliberate reflection. “The calculus of reasonableness

must embody allowance for the fact that police officers are

often forced to make split

‐ second judgments—in

circumstances that are tense, uncertain, and rapidly

evolving—about the amount of force that is necessary in a

particular situation.” Graham

, 490 at 396–97.

Judges view facts from afar, long after the gunsmoke

cleared, and might take months or longer to decide cases that

forced police officers to make split

‐ second decisions in life

‐ or

‐

death situations with limited information. “We as judges have

minutes, hours, days, weeks, even months to analyze,

scrutinize and ponder whether an officer’s actions were

‘reasonable,’ whereas an officer in the line of duty all too

frequently has only that split

‐ second to make the crucialNo. 17

‐ 1757 15

decision.” Ford

, 855 F.2d at 1276 n.8. The events here unfolded

in heart

‐ pounding real time, with lives on the line. Pobjecky

lacked our luxury of pausing, rewinding, and playing the

videos over and over.

Of course, the fluid nature of these situations also

highlights the limited scope of the constitutional permission

to use deadly force. Even though an officer may in one

moment confront circumstances in which he could

constitutionally use deadly force, that does not necessarily

mean he may still constitutionally use deadly force the next

moment. The circumstances might materially change. “When

an officer faces a situation in which he could justifiably shoot,

he does not retain the right to shoot at any time thereafter

with impunity.” Ellis v. Wynalda

, 999 F.2d 243, 247 (7th Cir.

1993).

Finally, it bears noting that the availability of less severe

alternatives does not necessarily render the use of deadly

force unconstitutional. The Fourth Amendment does not

require “the use of the least or even a less deadly alternative

so long as the use of deadly force is reasonable under

Tennessee v. Garner and Graham v. Connor

... .” Plakas v.

Drinski

, 19 F.3d 1143, 1149 (7th Cir. 1994).

The relevant question is whether Pobjecky reasonably

believed Michael posed a threat of death or serious bodily

injury based on the information Pobjecky had during the

robbery. The district court accurately summarized the salient

facts. The incident lasted only about 45 seconds from the

moment the first assailant entered the pizzeria to the moment

Pobjecky locked the door. Pobjecky had limited time to react

to four assailants attempting to commit an armed robbery.

Pobjecky had to react to a struggle over a loaded gun. After16 No. 17

‐ 1757

Coates made threats with a gun, Pobjecky reasonably

assumed the three other assailants, including Michael, might

be armed. As the district court correctly observed, we may not

consider the fact that it turned out Michael was unarmed

because Pobjecky did not know that, and had no reasonable

way to know that, at the time. “Knowledge of facts and

circumstances gained after the fact (that the suspect was

unarmed) has no place in the trial court’s or jury’s proper

post

‐ hoc analysis of the reasonableness of the actor’s

judgment.” Sherrod

, 856 F.2d at 805. As long as the assailants

were moving inside the pizzeria, they posed a threat.

Considering the facts in the light most favorable to Horton,

no reasonable jury could find Pobjecky’s belief that Michael

might be armed was unreasonable. Michael participated in an

armed robbery while wearing a sweatshirt allowing easy

concealment of a gun.

The district court compared this case to Ford

, where we

examined the totality of the circumstances known to the

officer at the time and found no Fourth Amendment violation

when the officer fired on a suspect because the officer

“reasonably believed that the suspect had committed a felony

involving the threat of deadly force, was armed with a deadly

weapon, and was likely to pose a danger of serious harm to

others if not immediately apprehended.” Ford

, 855 F.2d at

1275. The district court reasoned that here the case in favor of

the officer is even stronger than it was in Ford because there

the officer did not see a weapon and was not present during

the felony, but here Pobjecky witnessed the commission of a

dangerous felony, saw Coates make threats with a gun, and

was out

‐ numbered by the assailants, all of whom Pobjecky

reasonably thought might be armed.No. 17

‐ 1757 17

Horton attempts to distinguish Michael from the other

three assailants. Michael’s hoodie was a different color. He

wore no mask. He entered last. He had no gun, never fought

over a gun, and never said anything threatening. Horton goes

so far as to characterize Michael as a mere “observer.” But

these distinctions ultimately make no difference. There is no

dispute Michael participated in the armed robbery. Pobjecky

was an off

‐ duty, initially unarmed officer under immense

pressure, facing multiple moving assailants over a short

period of time. He had no reason to think that the color of

Michael’s hoodie or his lack of a mask distinguished him as

harmless. Pobjecky had no way to know Michael entered the

pizzeria last, and such knowledge is irrelevant anyway.

Pobjecky had no way to know Michael was unarmed. Michael

participated in an armed robbery and wore clothing that

could conceal a gun or other weapon. Pobjecky reasonably

assumed Michael posed an imminent threat of death or

serious injury, even though he did not fight over a gun or say

anything threatening.

Horton argued below, and on appeal, that Michael

surrendered before or while Pobjecky shot him. Horton

points to a footage frame showing Michael’s arm elevated

near the door as Pobjecky points a gun at him. But the district

court correctly noted Horton takes this frame out of context.

In context, the video shows Michael elevated his arm quickly

to open the door while he moved toward it. In any event,

“[n]ot all surrenders, however, are genuine, and the police are

entitled to err on the side of caution when faced with an

uncertain or threatening situation.” Johnson v. Scott

, 576 F.3d

658, 659 (7th Cir. 2009). No reasonable jury would conclude

the shooting was unreasonable on the basis of the footage

frame when viewed in context.18 No. 17

‐ 1757

Horton also argued below, and on appeal, that Pobjecky

never gave any warnings before shooting. But the district

court correctly observed that Garner requires an officer to

warn “where feasible” but does not require an officer to warn

under all circumstances. Garner

, 471 U.S. at 11–12. Given the

desperate circumstances Pobjecky faced, and the limited time

he had, no reasonable juror could conclude he should have

stopped to identify his office or warn the assailants before

shooting them to defend himself and others.

Horton argues we cannot justify the shooting based on the

goal of preventing escape because Pobjecky testified he did

not think Michael was fleeing. But even if Pobjecky

subjectively did not intend to prevent Michael from escaping

by shooting him, that does not mean it was objectively

unreasonable to shoot Michael to prevent him from escaping.

The video shows Michael moving toward the exit as Pobjecky

shoots him. Even if Michael had already crawled past

Pobjecky, it was still reasonable for Pobjecky to shoot him in

the back to prevent escape. Moreover, the goals of self

‐

defense and defense of others remained valid even after

Michael crawled past Pobjecky because for all a reasonable

officer could have known Michael could have turned and

produced a gun in a flash given all the facts and

circumstances. In sum, even if Pobjecky only shot Michael in

the back as he crawled away, this shooting would still have

constituted a reasonable prevention of escape, despite

Pobjecky’s testimony, and this shooting would still have

constituted a reasonable act in defense of self and others.

Horton argues we cannot justify the shooting based on the

goals of self

‐ defense or defense of others because the evidence

viewed in his favor shows Michael did not pose an imminentNo. 17

‐ 1757 19

threat of death or serious physical injury to anyone. Horton

argues that if Michael were inclined to harm anyone, and

were capable of doing so, he would have done so before he

was shot. Horton also argues Pobjecky did not perceive

Michael to be a threat because he was “so unconcerned” about

Michael that he turned his back to Michael, who was only a

few feet away, before shooting him. We disagree. What

matters is whether a reasonable officer on the scene would

have perceived Michael as posing an imminent threat of death

or serious physical injury. Even in the light most favorable to

Horton, the answer is yes. There is no reason to think

Pobjecky should have assumed Michael was harmless

because if he had a gun, he would have used it sooner. A

reasonable officer need not risk his life and the lives of others

on such speculation. And there is no reason to think Pobjecky

knew where Michael was at all times. Besides, given the

varied and changing positions of the assailants after Pobjecky

got hold of Tarara’s gun, Pobjecky could not give his full

attention to all the assailants at once. Turning toward one

required turning away from another.

Horton recognizes that perhaps Pobjecky could have

constitutionally shot Michael at some earlier stage of the

encounter. But Horton insists that the shooting was no longer

permissible after the struggle for the guns was over, Coates

was neutralized, Bellmon and Brandon had left, and Michael

was crawling away from Pobjecky, who never identified his

office or told Michael to stop. But this ignores the totality of

the circumstances. As shown in the video, during an armed

robbery Michael approached Pobjecky generally from

behind, in close quarters, and Pobjecky turned to confront the

threat and immediately shot Michael. When he shot Michael,20 No. 17

‐ 1757

Pobjecky did not know the total number of assailants, and he

reasonably assumed all might be armed and dangerous.

Viewing the facts and drawing inferences in Horton’s

favor, and considering the totality of the circumstances, we

agree that the four assailants placed the lives of Pobjecky and

others in objectively grave danger, and that Pobjecky’s

response with deadly force was reasonable. Michael

participated in an armed robbery. After approaching

(although not directly participating in) a struggle for a loaded

gun, Michael advanced toward Pobjecky generally from

behind, in close quarters, as other assailants occupied various

positions. Pobjecky immediately shot him.

Pobjecky objectively had reason to think Michael was

armed and dangerous, and posed an imminent threat of death

or serious bodily harm to Pobjecky and the community.

Under immense pressure, and with limited time, Pobjecky

responded to the armed siege with reasonable, appropriate,

and justified force, in compliance with the Fourth

Amendment. No reasonable jury could find otherwise.

Michael’s death is deeply regrettable. It is tragic. But the tragic

flaw rests with the assailants, not with Pobjecky.

B. Failure to Provide Medical Care

Michael lived briefly after the shooting. Horton claims

Michael might have survived had he received medical care

sooner. Horton argues Michael’s wounds might have been

survivable without treatment for five to forty minutes.

Horton notes paramedics arrived only four minutes after

Weidner’s 911 call, but Weidner did not make that call until

seven minutes after Pobjecky shot Michael. Horton argues

that had Pobjecky called 911 within a minute after shootingNo. 17

‐ 1757 21

Michael, the paramedics could have arrived early enough to

save Michael’s life, or at least to alleviate his excruciating

pain. As it happened, the paramedics arrived eleven minutes

after Pobjecky shot Michael, which was too late to save him.

The Fourth Amendment’s objective reasonableness

standard applies here, too. Sallenger v. City of Springfield, Ill.

,

630 F.3d 499, 503 (7th Cir. 2010). Horton had to show

Pobjecky’s response to Michael’s medical needs was

objectively unreasonable, and that Pobjecky’s response

caused harm. Ortiz v. City of Chi.

, 656 F.3d 523, 530 (7th Cir.

2011).

The district court considered the four

‐ factor

reasonableness test articulated in Ortiz

, found no

constitutional violation, and granted summary judgment to

Defendants. Ortiz provides four factors to determine whether

an officer’s actions regarding medical care were objectively

unreasonable: (1) whether the officer had notice of the

medical needs; (2) the seriousness of the medical needs; (3)

the scope of the requested treatment; and (4) police interests

that might inhibit providing treatment. Ortiz

, 656 F.3d at 530.

“[T]he Fourth Amendment’s reasonableness analysis

operates on a sliding scale, balancing the seriousness of the

medical need with the third factor—the scope of the

requested treatment.” Williams v. Rodriguez

, 509 F.3d 392, 403

(7th Cir. 2007).

As the district court recognized, in the light most favorable

to Horton, Pobjecky knew Michael had serious medical needs.

But the third and fourth factors outweigh the first and second.

Pobjecky reasonably feared for his life and the lives of others.

After exhausting his ammunition neutralizing the assailants

at least temporarily, he locked the front door. He did not22 No. 17

‐ 1757

know whether some assailants were regrouping or

summoning reinforcements. He then did what a reasonable

police officer in that situation would do: he instructed Tarara

to call 911. Tarara had trouble getting through, so Weidner

called. Pobjecky also called a dispatcher on his direct line. The

record shows 911 received a call at 10:34 p.m. reporting an

armed robbery and injuries from gunshots, and the first

responders arrived at the scene at 10:38 p.m.

The law does not require, and Horton cannot expect,

Pobjecky to do anything more. It was objectively reasonable

for Pobjecky to stay inside the locked pizzeria awaiting help.

It is objectively unreasonable to demand him to venture into

the night with an empty gun, risking further onslaught,

braving the hazards Michael and the other assailants created,

to administer treatment to Michael. The district court

properly concluded a reasonable jury could not find Pobjecky

should have unlocked the door, exited, and provided medical

care. Pobjecky did not violate the Constitution.

C. Monell Claim

Horton also brought a Monell claim against the Sheriff,

claiming deficiencies in the policies, procedures, customs, and

practices of the Sheriff caused the shooting of Michael. The

district court properly granted summary judgment for the

Sheriff regarding the Monell claim predicated on excessive

force because Pobjecky did not use excessive force. The

district court also noted that any Monell claim predicated on

failure to provide medical care would also fail because

Pobjecky did not violate the Constitution in this regard either.

“[A] municipality cannot be liable under Monell when there is

no underlying constitutional violation by a municipal

employee.” Sallenger

, 630 F.3d at 504.No. 17

‐ 1757 23

As we affirm the district court’s grant of summary

judgment for Pobjecky regarding the claims for excessive

force and failure to provide medical care, we also affirm the

district court’s grant of summary judgment regarding the

Monell claim.

D. State

‐ Law Claims

Horton also brought one claim under the Illinois Wrongful

Death Act and two claims under the Illinois Survival Act

against Pobjecky and the Sheriff. After granting Defendants

summary judgment regarding the federal claims, the district

court chose not to relinquish supplemental jurisdiction over

the state

‐ law claims.

Pobjecky and the Sheriff claimed immunity against the

state

‐ law claims pursuant to the Illinois Local Government

and Governmental Employees Tort Immunity Act, which

grants public employees immunity from liability for any “act

or omission in the execution or enforcement of any law unless

such act or omission constitutes willful and wanton conduct.”

745 ILCS 10/2

‐ 202. The district court correctly concluded that

since Pobjecky’s actions were objectively reasonable, they

cannot be willful and wanton, so Defendants were entitled to

immunity, and the state

‐ law claims failed.

IV. Conclusion

Even in the light most favorable to Horton, Officer

Pobjecky acted reasonably when confronted with a perilous,

life

‐ threatening situation. He did not violate the Constitution.

We affirm the district court.

A FFIRMED

.