In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-1337

MARTHA V. DELUNA, individually and

as Administrator for the Estate of Luis

Roberto DeLuna, deceased, and as next

friend of her minor children Martha

Virydiana, Alejandra and Luis Roberto,

Plaintiff-Appellant,

v.

CITY OF ROCKFORD, ILLINOIS, RANDALL

PERAZA, LIEUTENANT SALMONE, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Western Division.

No. 00 C 50040—Philip G. Reinhard, Judge.

____________

ARGUED JANUARY 17, 2006—DECIDED MAY 18, 2006

____________

Before BAUER, ROVNER, and SYKES, Circuit Judges.

ROVNER, Circuit Judge. On March 21, 1998, officer

Randall Peraza responded to a report of a domestic disturbance, and his subsequent encounter with Luis Roberto

DeLuna culminated in the fatal shooting of DeLuna by

Peraza. DeLuna’s widow, on behalf of herself and her minor

children, filed this action pursuant to 42 U.S.C. § 1983 and
2 No. 05-1337

Illinois law against Peraza, alleging Fourth Amendment

and wrongful death claims. The plaintiff also raised challenges to the actions of other officers following the shooting

who took the statement of herself and her daughter,

arguing that their actions violated the Fourth and First

Amendments. Mrs. DeLuna reverted to her maiden name,

Martha Lopez, following the death of her husband, and will

be referred to by that name throughout this opinion.

The district court granted summary judgment in favor

of the defendants, and Lopez appeals. Therefore, we must

consider the facts including reasonable inferences therefrom, in the light most favorable to Lopez. Fisher v. Lovejoy,

414 F.3d 659, 661 (7th Cir. 2005).

We first consider Lopez’s Fourth Amendment and wrongful death claims arising out of the death of DeLuna. The

Fourth Amendment is implicated because a police officer’s

use of deadly force constitutes a seizure within the meaning

of that amendment and therefore is constitutional only if it

is reasonable. Tennessee v. Garner, 471 U.S. 1, 7, 11 (1985);

Scott v. Edinburg, 346 F.3d 752, 755-56 (7th Cir. 2003).

Reasonableness is not based on hindsight, but rather is

determined considering the perspective of the officer on the

scene, allowing “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 v. Connor, 490 U.S. 386, 396-97 (1989); Scott, 346

F.3d at 756. The focus is on whether the actions of the

officer are objectively reasonable. Id. If an officer believes

that the suspect’s actions place him, or others in the

immediate vicinity, in imminent danger of death or serious

bodily injury, deadly force can reasonably be used. Scott,

346 F.3d at 756; Muhammed v. City of Chicago, 316 F.3d

680, 683 (7th Cir. 2002).

The facts undisputed by Lopez are themselves sufficient

to establish imminent danger to Peraza so as to render
No. 05-1337 3

1 This statement was not agreed to by Lopez, although her

objection was not to the substance but that it was inadmissible

hearsay. That objection would not impact its use in establishing

Peraza’s state of mind, rather than for the truth of the matter.

deadly force reasonable. At approximately 4:14 on the

morning of March 29, 1998, Peraza received a dispatch

regarding a domestic disturbance at Lopez’s residence. This

was not Peraza’s first call to that home. In fact, eight days

earlier, Peraza had responded to a similar call from that

residence. On that occasion, Peraza perceived that DeLuna

was intoxicated and was yelling at Lopez. Lopez informed

Peraza that DeLuna was known to be very violent. He

was also aware from that experience that Lopez had a

daughter who was a minor. DeLuna was arrested at that

time and placed in a holding cell. Peraza was subsequently

told by other officers that in the holding cell, DeLuna

became very violent, punching and slamming his head

against the cement walls.1

 At the time of this incident,

Peraza observed that DeLuna had an extensive arrest

history, and Lopez told him that DeLuna was known to

carry weapons. That was consistent with an earlier experience in which Peraza recorded a written statement from a

person who stated that he had purchased guns from

DeLuna.

With the knowledge gained from that earlier exposure to

DeLuna and Lopez, Peraza responded to the 911 call in the

early morning hours of March 29, arriving at the house

approximately a minute after receiving the dispatch and

advising dispatch that he was at the scene. From inside the

squad car, he could not see the suspect, DeLuna. His main

concern as he arrived was whether DeLuna was in the

house. He was aware that children had been present in the

house the week prior, and that Lopez had told him that she

had been battered badly before. Peraza exited his vehicle

and walked toward the front of it. Lopez saw Peraza from
4 No. 05-1337

2 All of the conversations between Peraza and DeLuna on this

night were in Spanish, but will be set forth in English in this

opinion.

the kitchen window, and she continued to yell to him

outside the entire time after Peraza left his squad car. As

Peraza was proceeding to the front of his vehicle, something

caught his attention from the right side. He saw movement

in the dark, and then recognized DeLuna standing at the

northwest corner of the house. DeLuna had no shirt on even

though it was 4:14 a.m. on that Spring day, and he did

not appear to be cold. Peraza said “Hey Concepcion,

Concepcion” a couple of times to get DeLuna’s attention,

asking “What’s going on?”2

DeLuna responded: “I’ve got something for you. You are

going to have to kill me.” Peraza had his gun drawn, and

told DeLuna to raise his hands. DeLuna did not raise his

hands, but began walking towards DeLuna with his arms

extended out to his sides. Peraza and DeLuna were facing

each other, and therefore Peraza would not have been able

to see whether DeLuna possessed any weapon in his back

waistband. As DeLuna walked toward Peraza, Peraza began

to walk backward, maintaining a distance between the two.

As Peraza and DeLuna turned to move southward along the

east side of the house, Peraza continued to back away from

DeLuna. As DeLuna moved along the east side of the house

toward the back-pedaling Peraza, DeLuna told Peraza “If

you are going to shoot me, shoot me here,” pointing to his

chest with his right hand. Lopez was yelling out the window

as the scene unfolded. In the course of yelling, she told

Peraza not to shoot, stating that DeLuna had nothing in his

hands. At some point, Lopez could no longer see or hear

Peraza and DeLuna from the back window, and she moved

to the east side kitchen door.

Because Peraza was walking backward and looking at

DeLuna the entire time, he did not know what was behind
No. 05-1337 5

him. He told DeLuna to “stop,” but DeLuna disregarded him

and continued walking toward him. There was a dirt hole

in the driveway and a black plastic pipe in the dirt that was

hooked up to a downspout from the roof. Peraza stumbled

at that point and struggled to maintain his balance. In the

meantime, Lopez’s houseguest was pulling Lopez into the

kitchen away from the door, and pulled her to the floor.

When Lopez hit the floor, she heard a shot fired. Before she

heard that shot, 2-3 seconds had passed when she was

unable to see what was happening outside.

All of that is conceded by Lopez. In addition to that,

Peraza stated that DeLuna lunged toward him as he

stumbled, and that he feared DeLuna was either reaching

for a weapon behind his back or attempting to reach

Peraza’s weapon. At that time, he fired the shot. Lopez

disputes that statement, arguing that Peraza should not

be believed because he provided differing explanations as to

what he feared. What is uncontested, however, is that

DeLuna was disregarding Peraza’s order to stop and to

raise his hands, and that Peraza continued to back up

before and after killing DeLuna, with his momentum

carrying him out of the mud hole. Also undisputed is that

Peraza was only on the scene for 1 minute, 25 seconds

before shooting DeLuna, and backed up 40-50 feet over that

period of time. Finally, Lopez acknowledges the expert

testimony presented by Peraza, that to a reasonable degree

of medical, forensic, and scientific certainty, at the time of

the bullet entry, DeLuna had a flexed forward torso, which

is one in which the person is leaning forward at the waist.

The expert further attested that the bullet angle would be

consistent with the suspect making a lunging motion

towards the officer. The expert opinion was premised upon

the hypothetical that: Peraza fired one shot which struck

DeLuna; Peraza fired his weapon using his left hand while

moving backward in a slightly crouching position; Peraza

and DeLuna were anywhere from 5-15 feet apart when the
6 No. 05-1337

shot was fired; the height difference between Peraza and

DeLuna was within 1-2"; DeLuna was on his feet when

struck by the bullet; and Peraza and DeLuna were on level

terrain within plus or minus 5 inches of elevation. Lopez

did not provide any evidence disputing the premise of the

hypothetical.

The undisputed facts in the record demonstrate that

Peraza acted reasonably in firing the shot. At the time of

the shooting, Peraza was presented with a suspect who had

a history of violence, and who was known to both carry and

sell weapons. Peraza could not know whether DeLuna

possessed a weapon in the back of his waistband. DeLuna

was acting in an irrational manner, appearing shirtless and

disregarding repeated instructions to raise his hands and to

stop. DeLuna’s refusal to heed those demands and his

continued approach towards Peraza posed a danger to

Peraza. The potential danger inherent in that situation was

escalated by the threat made by DeLuna when he first saw

Peraza that he “had something for” Peraza and that Peraza

was going to have to kill him. His subsequent statement

that if Peraza was going to shoot him, he should shoot him

in the chest further indicated that this was a dangerous

situation, both in its anticipation of violence and in its

implication that the shot had better be fatal. The combination of those undisputed statements at a minimum established an unstable situation with an uncooperative person

who had a history of violence and weapons possession. After

backing up 40-50 feet in less than a minute and a half,

Peraza stumbled, and fired a shot at DeLuna. The uncontradicted expert testimony was that DeLuna was leaning

forward at the waist towards Peraza at the time of the shot,

which is consistent with Peraza’s testimony that DeLuna

lunged towards him as he stumbled. Lopez has presented

nothing contradicting that testimony. Regardless of

whether Peraza saw a gun or believed DeLuna was reaching for Peraza’s weapon, the action of DeLuna lunging
No. 05-1337 7

towards him after the threats and bizarre conduct, established the real danger of imminent serious bodily injury

should DeLuna succeed in reaching Peraza. Peraza need not

wait until there is a physical struggle for control of his

weapon before a situation presents an imminent danger of

serious physical injury.

This case is similar to a situation addressed recently by

the Tenth Circuit in Blossom v. Yarbrough, 429 F.3d 963

(10th Cir. 2005), in which the court concluded that the use

of deadly force was reasonable. In Blossom, the court was

presented with similar facts of a confrontational person

advancing on an officer, with the suspect eventually shot by

that officer. Contrary to our case, the officer in Blossom had

actually pursued the suspect, who had been accused of

refusing to leave someone’s car but had attempted to walk

away from the confrontation once the officer arrived. Id. at

965-66. Ultimately, however, the suspect became confrontational, continuing his approach towards the officer who

attempted to maintain distance from him by walking

backward, and disregarding the officer’s instructions to get

on the ground. Id. The evidence was in dispute as to

whether the suspect in Blossom lunged towards the officer

before being shot, but it was clear that the suspect was

advancing on the officer in what reasonably appeared to be

an effort to get his weapon, and that was sufficient for the

court to determine that deadly force was reasonable to

address the immediate threat to the officer’s safety.

DeLuna’s conduct in this case similarly presented an

immediate threat to the officer’s safety, and the district

court properly granted summary judgment to the defendants on this ground.

Lopez asserts, however, that even if the § 1983 standard

is not met, she can still establish wrongful death under

state law, and that the district court erred in treating the

two as synonymous. It is true that the district court did not

address separately the standards of wrongful death under
8 No. 05-1337

Illinois law, and that the two are not necessarily coterminous. In fact, in Carter v. Chicago Police Officers, 165 F.3d

1071, 1081 (7th Cir. 1998), we recognized that a court may

find conduct to be unreasonable for Fourth Amendment

purposes, but not willful and wanton so as to violate Illinois

law. Lopez, however, seeks the opposite result; she seeks a

determination that conduct which is a reasonable response

under the Fourth Amendment nevertheless can constitute

willful and wanton conduct under state law. The difficulties

of such a quest are apparent.

Lopez argues that in the wrongful death claim, in contrast to the § 1983 claim, the court must determine whether

Peraza’s alleged reckless actions caused the situation to

escalate, creating an unreasonably dangerous situation. She

argues that Peraza failed to follow department policy that

would have required him to wait for backup unless the

situation demanded immediate action. It is questionable

whether one could actually characterize an officer’s conduct

to be in reckless disregard for the safety of others when,

knowing that a violent, potentially-armed man could be in

a house with minor children and that the occupants have

sought police aid, he decides not to wait by the car before

attempting to help or at least further assess the situation.

We need not decide that issue, however, because the

sequence of events conceded by Lopez do not reveal any

such conduct. The undisputed facts are only that Peraza

was walking toward the front of his car when he perceived

movement from the corner of his eye and recognized

DeLuna. He had not yet had the opportunity to approach

the house or otherwise intervene without the assistance of

backup officers. Once he observed DeLuna, he simply called

to DeLuna and asked what was going on. DeLuna’s response that he “had something” for Peraza and that Peraza

was going to have to kill him, as well as DeLuna’s action in

walking toward Peraza, escalated the encounter, not any

action by Peraza. Thus, Lopez has failed to allege facts that
No. 05-1337 9

Peraza was acting in a reckless manner that created the

dangerous situation, and therefore we need not consider

whether Illinois would recognize such a claim; it has not

been established here in any case. Accordingly, the district

court did not err in granting summary judgment on these

claims. Because we uphold summary judgment on the

claims, we need not consider the plaintiff’s First Amendment claim that was expressly conditioned on success on

the claims relating to the death.

Lopez also asserts a Fourth Amendment claim on behalf

of herself and her 13-year-old daughter, based on the

conduct of the police following the shooting. Shortly after

the shooting, the police transported Lopez and her daughter, Martha DeLuna, to the police station to take their

statements regarding the events that had transpired. Lopez

claims that the police questioning of her and her daughter

following the shooting constituted an unreasonable seizure

under the Fourth Amendment.

A person is “seized” for Fourth Amendment purposes

“only if, in view of all of the circumstances surrounding

the incident, a reasonable person [in the subject’s position] would have believed that he was not free to leave.”

United States v. Mendenhall, 446 U.S. 544, 554 (1980). We

have described the type of circumstances in which a

reasonable person might believe that he was not free to

leave. For instance,

[t]he Supreme Court has noted that a reasonable person

might not believe he was free to leave when faced with

“the threatening presence of several officers, the display

of a weapon by an officer, some physical touching of the

person of the citizen, or the use of language or tone of

voice indicating that compliance with the officer’s

request might be compelled.” Mendenhall, 446 U.S. at

554. Furthermore, this court has noted some other

factors that might influence a reasonable individual to
10 No. 05-1337

believe that he was not free to leave: “whether the

encounter occurred in a public or private place; whether

the suspect was informed that he was . . . free to

leave; . . . whether there was physical touching, display

of weapons, or other threatening conduct; and whether

the suspect eventually departed the area without

hindrance.” United States v. Scheets, 188 F.3d 829, 836-

37 (7th Cir. 1999), cert. denied, 528 U.S. 1096 (2000).

Leaf v. Shelnutt, 400 F.3d 1070, 1089-90 (7th Cir. 2005).

Lopez has failed to present any evidence of coercion or

conduct that would lead a reasonable person to believe that

she was not free to leave. In fact, the record belies any such

belief. One of the undisputed statements of fact is that

Martha DeLuna “agreed” to go to the police station to

provide a statement. In the statement of undisputed facts,

the plaintiff further acknowledges that the officers had

a legitimate interest in interviewing them shortly after

the incident, that it was reasonable for them to be interviewed separately, and that Lopez was never searched or

handcuffed, and no one grabbed her arms or hands to lead

her along when she walked to the police car. Significantly,

in her deposition when describing her time at the police

station, Lopez acknowledged “I could probably have left or

tried to get out,” but stated that she did not do so because

she trusted that the police would take her to the hospital as

soon as possible to see her husband. That is inconsistent

with a belief that she was not free to leave. The plaintiff did

not present any evidence of police conduct that was coercive

or threatening, or otherwise establishing that they were not

in fact free to leave. The closest that Lopez comes is a

statement that the police brought her to a room and told

her to stay there, but she later characterized the statement

as simply telling her to wait there. That is inadequate to

establish a reasonable belief that she was not free to leave.

Nor does Lopez’s own conduct indicate that she was intimidated by the police authority. Although it took hours for the
No. 05-1337 11

police to finish preparing her statement, much of that delay

was because the police provided an interpreter for Lopez,

and because the statement was redone three times when

Lopez told the officers that information was missing from

the statement, and requested that it be retyped to include

that information. At most, Lopez has demonstrated that the

officers wanted to interview them after the shooting, and

that the officers facilitated that interview by providing

transportation to the police station and promising to

transport them to the hospital when the statements were

completed. The officers mere desire to interview them

promptly does not equate with coercion, and Lopez has

provided nothing more in this record. Accordingly, the

district court properly granted summary judgment on this

claim as well. The decision of the district court is AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-18-06