In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2436

JOE BAIRD, et al.,

Plaintiffs-Appellees,

v.

JOHN RENBARGER,

Defendant-Appellant.

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:06-cv-1150-DFH-WTL—David F. Hamilton, Chief Judge.

ARGUED JANUARY 16, 2009—DECIDED AUGUST 3, 2009

Before BAUER, FLAUM, and WOOD, Circuit Judges.

WOOD, Circuit Judge. Law enforcement is a difficult

job, as “police officers are often forced to make

split-second judgments—in circumstances that are tense,

uncertain, and rapidly evolving.” Graham v. Connor,

490 U.S. 386, 397 (1989). This reality is reflected in the

fact that courts give considerable leeway to law enforcement officers’ assessments about the appropriate use

of force in dangerous situations. See, e.g., Scott v. Harris,
2 No. 08-2436

550 U.S. 372, 385-86 (2007). This latitude ends, however,

when police officers employ force that is clearly

excessive or unreasonable under the circumstances. That

is the case here.

Officer John Renbarger participated in the execution of

a search warrant that was based on the crime of altering

a vehicle identification number (“VIN”). The crime

itself does not involve violence; there was no suggestion that anyone at the search location was armed or

dangerous; and no one at the site presented any resistance.

Despite this, Renbarger decided to wield a 9-millimeter

submachine gun, which he used to detain various

people at the search site. The search ended when the

officers concluded that the VIN had not actually been

altered.

The people who had been held temporarily filed suit

under 42 U.S.C. § 1983 alleging violations of the Fourth

Amendment and state law. Our appeal, however, deals

only with the claims of excessive force against

Renbarger, who filed a motion for summary judgment

on the basis of qualified immunity. The district court

denied his motion, and Renbarger has taken an interlocutory appeal from that order. We affirm.

I

Because Renbarger argues that the district court committed legal error in its qualified immunity analysis, “the

court of appeals can simply take, as given, the facts that

the district court assumed when it denied summary
No. 08-2436 3

judgment for that (purely legal) reason.” Johnson v. Jones,

515 U.S. 304, 319 (1995). We summarize the facts set

forth in the district court opinion. See Shelby Indus. Park

v. City of Shelbyville, 2008 U.S. Dist. LEXIS 38272, 5-18

(S.D. Ind. May 9, 2008).

Joe Baird and Randy Robinson jointly owned Shelby

Industrial Park in Shelbyville, Indiana. Robinson owned

Randy’s Auto Sales, a private automobile body shop and

resale business, and Baird had his own body shop for

antique cars and motorcycles. Both of these businesses

were housed in the park. Several years before the incidents

in this case, Baird bought a 1937 Lincoln Zephyr in

order “to make a hot rod out of it.” Because the car had an

out-of-state title, Baird had his office manager call the

Shelbyville Police Department to come and check the

vehicle’s motor number, the antique equivalent of a VIN.

Officer McCracken responded to the call, examined

the VIN, and signed an affidavit verifying it. When he

returned to the police department, however, he called a

prosecutor to express his belief that the VIN had been

altered. McCracken then obtained a search warrant for

the Zephyr, and the next morning he went to the

industrial park to execute it. Two other Shelbyville police

officers (one of whom is the appellant, John Renbarger),

two Indianapolis police officers, and James Beard, a

member of the National Insurance Crime Bureau, accompanied him.

No officer involved had reported having any

suspicion that anyone at the industrial park was armed or

dangerous. Nevertheless, Renbarger slung a 9-millimeter
4 No. 08-2436

submachine gun around his neck. McCracken and

Renbarger then entered Baird’s shop, and McCracken

told the people there to get in the center of the building

and to sit down on the concrete. Everyone complied.

Pointing his submachine gun, Renbarger rounded up

anyone in the surrounding shops and warehouse, including a group of Amish men who were working nearby.

He collected identification from everyone, except for the

Amish, and held them for around two hours while the

search was completed. Meanwhile, the other officers

detained everyone in Robinson’s shop and searched for

the Zephyr. The Robinson group, too, were entirely

compliant. When the officers found the car, Beard examined the VIN and concluded that it had not been altered. The officers then left.

Plaintiffs filed suit against the officers involved in

the search and their employers under 42 U.S.C. § 1983

alleging violations of the Fourth Amendment and claims

under state law for trespass, negligence, and false imprisonment. The district court disposed of many of these

claims by granting summary judgment to the defendants,

but it denied Renbarger’s motion for summary judgment

on the basis of qualified immunity. Employing the test

from Saucier v. Katz, 533 U.S. 194, 201 (2001), the district

court first concluded that “a reasonable jury could find

that it was objectively unreasonable for Officer Renbarger

to round up and detain the individuals in Joe Baird’s

shop by aiming a submachine gun at them.” See Shelby

Indus. Park, 2008 U.S. Dist. LEXIS 38272, at 41-42. Then, the

district court held that “a jury could find that his actions

were so unreasonable that they would violate clearly
No. 08-2436 5

established law under the Fourth Amendment,” completing step two of the Saucier test and vitiating Renbarger’s

qualified immunity defense. Id. at 47.

II

A denial of a claim of qualified immunity is “an

appealable ‘final decision’ within the meaning of 28 U.S.C.

§ 1291 notwithstanding the absence of a final judgment.”

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). This court

reviews the district court’s denial of summary judgment

on qualified immunity grounds de novo. Jewett v. Anders,

521 F.3d 818, 821 (7th Cir. 2008).

Public officials are shielded from liability if their

conduct does not violate the clearly established rights of

which a reasonable official would have known. Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). For some time now,

courts have approached the qualified immunity question

using a two-step inquiry. Saucier, 533 U.S. at 201. First, the

court determines whether a constitutional right has

been violated. If it finds a violation, it then asks whether

the right was clearly established at the time the official

acted. The Supreme Court recently held that the Saucier

test is not mandatory and that lower courts may decide,

in their discretion, in which order to answer these two

questions. Pearson v. Callahan, 129 S. Ct. 808, 818-22

(2009). Because we believe that it is useful in resolving

this case, we elect to follow the Saucier approach here.

The plaintiffs allege that Renbarger violated their Fourth

Amendment rights through an unreasonable seizure
6 No. 08-2436

done with the use of excessive force—in particular, by

using a submachine gun to round them up and detain

them during the search. The question whether the

seizure was unreasonable under the Fourth Amendment

depends on whether it was objectively reasonable, judged

from the perspective of a reasonable officer on the scene.

Graham, 490 U.S. at 396. The proper application of this

test requires an analysis of the facts and circumstances

of the case, “including [1] the severity of the crime at issue,

[2] whether the suspect poses an immediate threat to

the safety of the officers or others, and [3] whether he is

actively resisting arrest or attempting to evade arrest by

flight.” Id. Plaintiffs need not show physical injury in

order to sustain an excessive force claim. Such a rule

would be inconsistent with the Supreme Court’s ruling

in California v. Hodari D., 499 U.S. 621 (1991), recognizing

that an arrest can be effectuated by the slightest application of physical force, or by some other show of

authority. Id. at 625. The issue is simply whether, once it

is clear (as it is here) that a seizure has occurred, that

seizure meets Fourth Amendment standards.

The factors identified in Graham all tend to show that

the use of the submachine gun was objectively unreasonable in the setting that Renbarger faced. First, the

search and seizure concerned the crime of altering a

special identification number. See IND. CODE § 9-18-8-12

(2008). This is a far cry from crimes that contain the use

of force as an element, crimes involving possession

of illegal weapons, or drug crimes, all of which are associated with violence. Second, there was never a reason to

suspect that there was any threat to the safety of the
No. 08-2436 7

officers involved. McCracken had been to the site the

day before, and the officers made no mention of danger

or violence during the search. Third, none of the

plaintiffs resisted detention or attempted to flee. Renbarger

attempts to defend the reasonableness of his actions by

pointing out that he did not know the identities of those

who might be on the scene and that he was outnumbered.

But taking the facts in the light most favorable to the

plaintiffs, as we must, we see a scene of peaceable folks

(including the famously pacifist Amish) going about

their business, while the police inspect various vehicles

for identifying information. Renbarger’s subjective concerns do not transform this setting into one calling for

such a heavy-handed use of force. Moreover, the facts

show that the police were familiar with the site and had

no reason to believe that there would be resistance.

We have found similar uses of force unreasonable in

other cases. For example, we held that gun pointing when

an individual presents no danger is unreasonable and

violates the Fourth Amendment. See Jacobs v. City of

Chicago, 215 F.3d 758, 773-74 (7th Cir. 2000) (pointing a

gun at an elderly man’s head for ten minutes even

after realizing that he is not the desired suspect and when

he presents no resistance is “out of proportion to any

danger that Jacobs could possibly have posed to the

officers or any other member of the community”); McDonald v. Haskins, 966 F.2d 292, 294-95 (7th Cir. 1992)

(pointing a gun at a nine-year-old child during a search

and threatening to pull the trigger was “objectively unreasonable”). In a slightly different context, we observed

that “police officers do not have the right to shove, push,
8 No. 08-2436

or otherwise assault innocent citizens without any provocation whatsoever.” Clash v. Beatty, 77 F.3d 1045, 1048

(7th Cir. 1996).

Renbarger cites L.A. County v. Rettele, 550 U.S. 609 (2007),

and Muehler v. Mena, 544 U.S. 93 (2005), as examples of

cases in which comparable conduct was found to be

reasonable, as the police in those cases also pointed their

guns at people during the execution of search warrants.

The facts in those cases, however, revealed a serious

potential danger to the police. In Rettele, police knew

that one of the suspects for whom they were searching

owned a registered handgun. Rettele, 550 U.S. at 611. In

Mena, police were executing a search warrant for

deadly weapons, and they believed that a gang member

who was recently involved in a drive-by shooting lived

at the residence to be searched. Mena, 544 U.S. at 95-96.

Nothing of the sort existed in this case. We conclude

that, taking the facts in the light most favorable to the

plaintiffs, a reasonable jury could find that Renbarger

violated the plaintiffs’ rights under the Fourth Amendment.

We therefore proceed to the second step of the qualifiedimmunity inquiry and ask whether the right at issue

was clearly established:

[T]he right the official is alleged to have violated must

have been “clearly established” in a more particularized, and hence more relevant, sense: The contours

of the right must be sufficiently clear that a reasonable official would understand that what he is

doing violates that right. This is not to say that an
No. 08-2436 9

official action is protected by qualified immunity

unless the very action in question has previously been

held unlawful, but it is to say that in the light of

pre-existing law the unlawfulness must be apparent.

Anderson v. Creighton, 483 U.S. 635, 640 (1987) (citation

omitted). In ascertaining whether a right is clearly established, this court looks to controlling Supreme Court

and 7th Circuit precedent. A plaintiff need not point to

identical cases. Indeed, in some rare instances where the

constitutional violation is obvious, a plaintiff need not

show any analogous cases, “as widespread compliance

with a clearly apparent law may have prevented the

issue from previously being litigated.” Denius v. Dunlap,

209 F.3d 944, 951 (7th Cir. 2000).

Renbarger urges this court to view his behavior at a high

level of generality; he sees it as the mere pointing of a gun.

We decline to take this perspective. “Pointing a gun”

encompasses far too great a variety of behaviors and

situations. Renbarger pointed a submachine gun at

various people when there was no suggestion of danger,

either from the alleged crime that was being investigated

or the people he was targeting. The Fourth Amendment

protects against this type of behavior by the police. See

Jacobs, 215 F.3d at 773-74; McDonald, 966 F.2d at 294-95.

The cases Renbarger cites are not to the contrary.

They actually reinforce the critical point: while police

are not entitled to point their guns at citizens when

there is no hint of danger, they are allowed to do so

when there is reason to fear danger. In Williams v. City of

Champaign, 524 F.3d 826 (7th Cir. 2008), police pointed
10 No. 08-2436

The opinion in Williams at one point observes that it is

1

important to “distinguish between a detention, which if unreasonable violates the Fourth Amendment, and an accompanying

display (as distinct from use) of force which may not—an

unresolved question . . . .” 524 F.3d at 829. Just as in Williams,

however, there is no need to consider that broad issue in

our case. We have both an unreasonable detention and enforcement by a specific display of force where there was no hint

of danger to the police officers or others. As the cases we

cite from this circuit and others indicate, the unreasonableness

of this action, for Fourth Amendment purposes, is thoroughly

resolved.

their guns at someone who they reasonably believed

might have committed a double robbery moments before.

Id. at 827. McNair involved “a suspect in a rough neigh- 1

borhood [who] refuse[d] to stop when directed,” which

is a genuine source of police concern. McNair, 279 F.3d

at 467 (7th Cir. 2002). Renbarger also points to language

in Wilkins v. May, 872 F.2d 190 (7th Cir. 1989), to support

his position. In dicta, Wilkins cited with approval the

physical injury requirement for Fourth Amendment

claims from the Fifth Circuit case Hinojosa v. Terrell, 834

F.2d 1223 (5th Cir. 1988). Wilkins, 872 F.2d at 194. As

noted earlier, however, the physical injury requirement

has not been adopted by this circuit, and for good reason. Rigid insistence on physical injury would be tantamount to a rule under which pointing a gun is always per

se reasonable. This would not be consistent with Graham or

Hodari D., which require us to delve further into the facts

to determine the context in which the gun pointing occurs.
No. 08-2436 11

Other circuits have also held that pointing guns at

persons who are compliant and present no danger is a

constitutional violation. See, e.g., Motley v. Parks, 432 F.3d

1072, 1089 (9th Cir. 2005) (en banc) (holding an infant at

gunpoint constitutes excessive force); Robinson v. Solano

County, 278 F.3d 1007, 1015-16 (9th Cir. 2002) (en banc)

(pointing a gun at an unarmed suspect who poses no

danger constitutes excessive force); Holland v. Harrington,

268 F.3d 1179, 1192-93 (10th Cir. 2001) (holding children

at gunpoint after the officers had gained complete

control of the situation “was not justified under the

circumstances”); Baker v. Monroe Township, 50 F.3d 1186,

1193-94 (3d Cir. 1995) (detention at gunpoint violated the

Fourth Amendment as there was “simply no evidence of

anything that should have caused the officers to use the

kind of force they are alleged to have used”). We note

that these cases so often involve children because they

are much less likely to present the police with a credible

threat. In other words, the unreasonableness of the gunpointing is more apparent in these cases, though pointing

a gun at a compliant adult in a non-threatening situation, as in this case, can also constitute excessive force.

Conversely, courts do not find constitutional violations

for gun pointing when there is a reasonable threat of

danger or violence to police. See, e.g., Aponte Matos v.

Toledo Davilo, 135 F.3d 182, 191-92 (1st Cir. 1998) (individual attempted to enter house that was being searched

for weapons); Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir.

1997) (suspect was believed to have a handgun); Edwards v.

Giles, 51 F.3d 155, 156-57 (8th Cir. 1995) (suspect fled

police); Courson v. McMillian, 939 F.2d 1479, 1496 (11th Cir.
12 No. 08-2436

1991) (drug crime suspects outnumbered police officer,

were intoxicated, and one was verbally aggressive); Collins

v. Nagle, 892 F.2d 489, 495-97 (6th Cir. 1989) (individual

approached scene in which officers were dealing with

uncooperative suspects).

We conclude that a reasonable jury could find that

Renbarger violated the plaintiffs’ clearly established right

to be free from excessive force when he seized and held

them by pointing his firearm at them when there was

no hint of danger. As a result, Renbarger is not entitled

to qualified immunity.

* * *

Forthese reasons, we AFFIRM the district court’s opinion.

8-3-09