### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 20

‐ 1109

G LORIA T AYLOR

, individually and as Independent Adminis

‐

trator of the Estate of S TEVEN T AYLOR

, Deceased,

Plainti ff‐ Appellant

,

v.

C ITY OF M ILFORD

, a municipal corporation, et al.

, Defendants

‐ Appellees

.

____________________

Appeal from the United States District Court for the

Central District of Illinois.

No. 2:17

‐ cv

‐ 02183

— Colin S. Bruce

, Judge

.

____________________

A RGUED A PRIL 22, 2021

— D ECIDED A UGUST 19, 2021

____________________

Before W OOD

, B RENNAN

, and S T

. E VE

, Circuit Judges

.

S T

. E VE

, Circuit Judge

. In 2016, Gloria Taylor called 911

seeking medical care for her husband, Steven, who was expe

‐ riencing a diabetic emergency at their home in Milford, Illi

‐

nois. O ffi cer Joseph Garre tt responded to the call and re

‐

strained Steven in a prone position, face down on his bed, for

seve ral minutes. Steven vomited and lost consciousness, and

he did not regain consciousness before passing away in the2 No. 20

‐ 1109

hospital ten days after the incident at sixty

‐ one years old. Af

‐

ter the district court granted summary judgment to the De

‐

fendants, Plainti ff appealed the district court’s judgment with

respect to whether Defendant Garre tt was entitled to quali fi ed

immunity based on his conduct within the Taylor ho me. As

we explain below, the district court erred in granting quali fi ed

immunity to Garre tt at the summary judgment stage.

I. Background

On August 17, 2016, Gloria called 911 for an ambulance

for her husband, a diabetic, whose blood sugar had dropped

dangerously low. 1 Gloria reported that Steven had dropped a

plate and told her that “he was having a sugar spell.”

In addition to su ff ering from diabetes, Steven had experi

‐

enced several cardiac events in the last several years. He suf

‐

fered a heart a tt ack in 2008 and underwent triple bypass sur

‐

gery. He then received arterial stenting in 2012, 2013, and

2015, and su ff ered a second heart a tt ack in 2016. He was re

‐

leased from the hospital from treatment for his heart a tt ack on

August 10, 2016, just one week prior to the diabetes incident

that led to this case.

Following Gloria’s 911 call, the county dispatcher re

‐ quested an ambulance to respond to a person experiencing a

diabetic emergency. There are no full

‐ time fi re fi ghters or EMS

personnel in the small village of Milford, so two volunteer

EMTs, Frank and Fred Hines, responded to the dispatcher’s

1 We refer to members of the Taylor family by their fi rst names to avoid

confusion, given that there are four di ff erent Taylor family members—

Gloria, Steven, and their nieces Serena and Shannon—involved in the

events leading to this case.No. 20

‐ 1109 3

request. As the Hineses drove to the fi re station to collect an

ambulance to respond to Gloria’s call, they passed by Defend

‐

ant Garre tt

, who indicated that he would also respond to the

call, since he was already close to the Taylor residence. Garre tt

is Milford’s only full

‐ time police o ffi cer. He had previo usly

volunteered as an EMT for a di ff erent city, and he earned his

certi fi cation to serve as a paramedic from the State of Illinois

in 2004.

The parties’ accounts di ff er regarding what transpired in

the time between Garre tt ’s arrival at th e Taylors’ home and

the ambulance’s departure from the home with Steven. It is

undisputed that Garre tt entered the home, confronted Steven

in his bedroom, and placed Steven in a prone restraint on the

bed. Steven then vomited and lost consciousness sometime

before or shortly after the EMTs arrived, who then took Steven

to the hospital by ambulance. Steven did not regain con

‐

sciousness and died in the hospital ten days later.

According to the Taylors, Steven was confused in his hy

‐ poglycemic state when Garre tt appeared in his bedroom. Ste

‐

ven asked Garre tt why he was there, and asked for some or

‐

ange juice, which his niece Serena o ff ered. Garre tt ordered

Serena to step back and did not allow her to give Steven the

orange juice. Serena also explained to Garre tt that Steven had

a bad heart and suggested that Garre tt should speak calmly

to her uncle. Despite Serena’s warning, Garre tt proceeded to

force Steven face down onto his bed. Garre tt used his own

weight to hold Steven down, restrained Steven’s right hand

behind his back, and pressed Steven’s lower back into the bed

using his elbow. Gare tt also used his left hand to apply pres

‐

sure behind Steven’s ears in ord er to in fl ict pain on Steven to

keep him in this position. With Steven’s knees on the ground,4 No. 20

‐ 1109

Garre tt ’s restraint position forced Steven’s face into the blan

‐

kets on his bed. Steven protested that he could not breathe,

but Garre tt continued to use his weight to keep Steven in this

prone position. The Taylors pleaded with Garre tt to let up, but

he refused. While Garre tt held Steven in this restraint on the

bed, Stev en vomited, further obstructing his breathing. EMT

Fred Hines testi fi ed that Steven “coded” when the ambulance

arrived, and doctors told the Taylors that Steven had not been

breathing for around twenty

‐ fi ve minutes by the time the am

‐

bulance arrived at the hospital.

In Garre tt ’s telling, he only restrained Steven beca use it

was clear that Steven was a danger to himself. As the district

court summarized, Garre tt “testi fi ed that he started to restrain

Steven after Steven head

‐ bu tt ed the wall and hit the closet

with his fi st, causing Garre tt to believe Steven was going to

harm himself more and needed to be restrained for his own

safety.” Garre tt further testi fi ed that “Mr. Taylor was showing

signs where he could potentially be dangerous. He was start

‐ ing [to] get in an aggressive stance. He was not making sense.

He was confused, incoherent speaking.” As a result, Garre tt

called for backup from the county, so that “if I had to go

hands

‐ on with him,

... more people [would be] there.” Garre tt

testi fi ed that he told Steven that the ambulance was on its

way, and that Steven stumbled and fell onto the bed before

Garre tt had put his hands on him. Steven hit the closet with

“his whole upper body” and hit his head. Garre tt maintains

that he did not feel threatened by Steven, but he decided to

use “pressure points and hand control tactics to place him on

the bed.” He then forced Steven into a position where his up

‐

per body was on the bed and his legs were on the fl oor. Ac

‐ cording to Garre tt

, Steven kept “trying to push up

... to turn

over one way or the other

... kept trying to kick me with hi sNo. 20

‐ 1109 5

feet

... [and] he was grabbing my duty belt, my shirt right

around my duty belt and my vest.” So he used “pressure

points behind the ear to keep him

– to get [Steven] back down

when he started lifting me up o ff the bed.” When Serena of

‐

fered orange juice, Garre tt was unsure that Stev en would

drink it, but he denies stopping Serena from giving Steven the

juice. Garre tt testi fi ed that although he saw vomit on Steven’s

face once the EMTs placed him on the stretcher to be taken to

the hospital, Garre tt did not see vomit on his face in the bed

‐

room and he did not know when Steven had vomited. Addi

‐ tionally, Garre tt testi fi ed that Steven had not lost conscious

‐

ness before the EMTs arrived, because he “was still thrashing

about,” but that he did lose consciousness at some point,

“[w]hen he stopped thra shing about and just stood still or laid

still.”

Serena and Shannon agreed that Steven was stumbling

and mumbling when Garre tt arrived at the Taylor home.

Serena insists, however, that Steven was not behaving vio

‐ lently. She did not see her uncle headbu tt the wall, but she did

testify that he accidentally hit a lamp and the closet door

while stumbling around the bedroom. Their description of

Steven’s hypoglycemia symptoms is consist ent with the testi

‐

mony of one of Steven’s treating physician’s, Dr. Zasada, who

explained that hypoglycemic patients may act confused,

“tired[,] sluggish, lethargic,” and possibly “rowdy defen

‐ sively because they don’t understand what’s going on, but not

aggressive.” Both Serena and Shannon testi fi ed that their un

‐

cle requested orange juice in Garre tt ’s presence, but Garre tt

did not allow them to give it to him.

Once at the scene, the EMTs initiated CPR, but Steven

never regained consciousness. He died on Aug ust 28, 20166 No. 20

‐ 1109

when life support was withdrawn. One of his treating physi

‐

cians, Dr. Brian Field, testi fi ed that the primary causes of Ste

‐

ven’s death were poor oxygenation of the brain, acute hypoxic

respiratory failure, and cardiac arrest, though an autopsy was

not performed. During his time in the hospital, 2 he also con

‐

tracted pneumonia and su ff ered respiratory failure.

After Steven’s passing, Gloria, both individually and as

the administrator of Steven’s estate, sued O ffi cer Garre tt and

the City of Milford under 42 U.S.C. § 1983, Monell v. Depart

‐

ment of Social Services

, 436 U.S. 658 (1978), the Illinois Wrong

‐

ful Death Act, and the Illinois Surviv al Act. At summary judg

‐

ment, the district court found in O ffi cer Garre tt and the City

of Milford’s favor on all counts and entered judgment in favor

of Defendants. On appeal, Gloria has not challenged the dis

‐

trict court’s rulings on her Monell and state law claims, and

only challenges the district court’s fi nding that Garre tt wa s

entitled to quali fi ed immunity. In response, Garre tt urges us

to a ffi rm the district court’s quali fi ed immunity analysis, or in

the alternative, to fi nd that he is still entitled to summary

judgment based on the plainti ff ’s failure to establish causa

‐

tion.

II. Analysis

We review the district court’s grant of summary judgment

and O ffi cer Garre tt ’s assertion of quali fi ed immunity de novo.

See Balsewicz v. Pawlyk

, 963 F.3d 650 (7th Cir. 2020). To a ffi rm,

we must fi nd that no genuine issu e of material fact exists and

2 The EMTs initially brought Steven to Iroquois Hospital but an emer

‐

gency room physician transferred him to St. Mary’s Hospital in Kankakee

shortly after Steven arrived at Iroquois in order to get a neurological con

‐

sult.No. 20

‐ 1109 7

that the moving party is entitled to judgment as a ma tt er of

law. Id. ; Fed. R. Civ. P. 56(c). “On summary judgment a court

may not make credibility determinations, weigh the evidence,

or decide which inferences to draw from the facts; these are

jobs for a fact fi nder.” Pa yne v. Pauley

, 337 F.3d 767, 770 (7th

Cir. 2003) (citing Anderson v. Liberty Lobby, Inc.

, 477 U.S. 242,

255 (1986)). “In applying this standard, all disputed issues of

fact are to be resolved in favor of the non

‐ moving party.” Ab

‐

dullahi v. City of Madison

, 423 F.3d 763, 769 (7th Cir. 2005) (cit

‐ ing Anderson

, 477 U.S. at 255).

A. Garre tt ’s Liability under Section 1983 and Quali fi ed Im

‐ munity

The central question in this appeal is whether Garre tt is

entitled to quali fi ed immunity as a ma tt er of law. Quali fi ed

immunity is an a ffi rmative defense, but once the defendant

raises it, “the burden shifts to the plainti ff to defeat it.” Leiser

v. Kloth

, 933 F.3d 696, 701 (7th Cir. 2019), cert. denied

, 140 S. Ct.

2722 (2020).

Quali fi ed immunity “protects government o ffi cials from

liability for civil damages when their conduct does not violate

clearly established statutory or constitutional rights of whic h

a reasonable person would have known.” McAllister v. Price

,

615 F.3d 877, 881 (7th Cir. 2010). When assessing a defendant’s

assertion of quali fi ed immunity, we ask: “whether the plain

‐

ti ff ’s allegations make out a deprivation of a constitutional

right, and whether the right was clearly established at the

time of defendant’s alleged misconduct.” Id. Our “focus ‘is on

whether the o ffi cer had fair notice that [his] conduct was un

‐

lawful.’” Balsewicz

, 963 F.3d at 656–57 (quoting Kisela v.

Hughes

, 138 S. Ct. 1148, 1152 (2018)).8 No. 20

‐ 1109

1. Fourth Amendment Right

The Fourth Amendment grants that the “right of the peo

‐ ple to be secure in their persons,

... against unreasonable

searches and seizures, shall not be violated.” U.S. Const.

amend. IV. Although police o ffi cers may use force to seize an

‐

other person under appropriate circumstances, the Fourth

Amendme nt protects against the use of excessive force. Wein

‐

mann v. McClone

, 787 F.3d 444, 448 (7th Cir. 2015). “The ques

‐

tion whether a particular use of force has crossed the consti

‐

tutional line is governed by the Fourth Amendment, which

prohibits unreasonable seizures.” Id. at 448 (citing Graham v.

Connor

, 490 U.S. 386, 395 (1989)). We analyze excessive force

cases under an objective reasonableness standard. Graham

,

490 U.S. at 388.

This analysis “requires a careful balancing of the nature

and quality of the intrusion on the individual’s Fourth

Amendment interests against the countervailing governmen

‐

tal interests at stake.” Id. at 396 (internal quotations omi tt ed).

“[T]he question is whether the o ffi cers’ actions are ‘objecti vely

reasonable’ in light of the facts and circumstances confronting

them, without regard to their underlying intent or motiva

‐

tion.” Id. at 397. “Such an analysis is inherently fact

‐ depend

‐

ent, requiring consideration of such factors as the sev erity of

the crime at issue, whether the person posed an immediate

threat to the safety of the o ffi cers or others, and whether the

person was actively resisting the o ffi cers.” Williams v. Ind.

State Police Dep’t

, 797 F.3d 468, 472–73 (7th Cir. 2015) (citing

Graham

, 490 U.S. at 396).

When it comes to deadly force, “a person has a right not

to be seized through the use of deadly force unless he puts

another person (including a police o ffi cer) in imminentNo. 20

‐ 1109 9

danger or he is actively resisting arrest and the circumstances

warrant that degree of force.” Weinmann

, 787 F.3d at 448; see

also Strand v. Minchuk

, 910 F.3d 909, 915 (7th Cir. 2018). In Ten

‐

nessee v. Garner

, 471 U.S. 1 (1985), the Supreme Court held that

a police o ffi cer violated a suspect’ s Fourth Amendment rights

when the o ffi cer shot the suspect as he tried to fl ee the scene.

Though the o ffi cer feared that the suspect would escape ar

‐

rest, the Court stated plainly that “[a] police o ffi cer may not

seize an unarmed, nondangerous suspect by shooting him

dead.” Id. at 11.

Viewing all of the facts in the light most favorable to the

Plainti ff

, we fi nd that a reasonable jury could conclude that

Garre tt violated Steven’s Fourth Amendment right to be free

from unreasonable seizures when Garre tt applied deadly

force to a non

‐ suspect civilian who was not resisting arrest

and did not pose an imminent threat to any o ffi cer, bystander,

or himself. Garre tt used physical force in a manner that re

‐

strained Steven’s liberty, e ff ectuating a seizure of Steven.

Torres v. Madrid

, 141 S. Ct. 989, 995 (2021). Moreover, the na

‐

ture and quality of the intrusion by Garre tt was severe—as

told by Serena and Shannon, Garre tt aggressively restrained

Steven for several minutes using his full body and police tac

‐

tics intended to in fl ict pain and induce submission to the of

‐

fi cer’s will despite the fact that Steven wa s not a threat to him.

Graham

, 490 U.S. at 396. And Garre tt continued to apply this

force, despite Steven’s alleged pleas that he could not breathe

and even after he vomited and lost consciousness. Yet the

“countervailing governmental interest[] at stake” was slight—

Steven did not pose an immediate threat to himself or anyone

else, and paramedics who could o ff er medical treatment for

Steven’s suspected hypoglycemia were already on their way.

See id. Furthermore, Garre tt did not carry a fi rst aid kit with10 No. 20

‐ 1109

him, he did not check or monitor Steven’s vital signs, and he

did not permit Steven to drink the orange juice that his niece

o ff ered (which was likely the most immediately accessible

treatment for hypoglycemia). If we accept, as we must, Plain

‐

ti ff ’s version of the facts, the force Garre tt deployed agains t

Steven was not a proportional response to Steven’s mumbling

and stumbling around his bedroom.

2. Clearly Established

Our analysis next turns to whether Garre tt ’s violation of

Steven’s constitutional rights was clearly established in 2016.

Lopez v. Sheri ff of Cook Cnty.

, 993 F.3d 981, 987 (7th Cir. 2021).

This step of the anal ysis requires speci fi city—“[f]or the law to

be clearly established, the ‘existing precedent must have

placed the statutory or constitutional question beyond de

‐

bate.’” Id. (quoting Ashcroft v. al

‐ Kidd

, 563 U.S. 731, 741 (2011)).

Though speci fi city is important, it does not requ ire a case pre

‐ senting the exact same facts. Id. at 988. The right must be “suf

‐

fi ciently clear that a reasonable o ffi cial would understand

what he is doing violates that right.” Weinmann

, 787 F.3d at

450. “Law enforcement o ffi cers, the [Supreme] Court has

stressed, ‘can still be on notice th at their conduct violates es

‐

tablished law even in novel factual circumstances.’” Strand

,

910 F.3d at 915 (quoting Hope v. Pelzer

, 536 U.S. 730, 741

(2002)).

Here, determining whether Garre tt ’s violation of Steven’s

rights was clearly established in 2016 requires fi ndings of fact,

which we cannot make at this stage of the litigation. Indeed,

several cases leave us with the fi rm conviction that under Gra

‐

ham

, and taking the facts most favorable to the Plainti ff

, a jury

could conclude that Garre tt applied excessive force to Steven

in violation of Steven’s clearly established rights. SeeNo. 20

‐ 1109 11

McAllister

, 615 F.3d at 885 (“While none of these cases involve

the same scenario at issue here—the use of force against a di

‐

abetic following a car accident resulting from hypoglycemic

shock—they do suggest that [the defendant o ffi cer] should

have been on notice that elements of his conduct could violate

[the plainti ff ’s] constitutional rights.”); McCue v. City of Ban

‐

gor, Me.

, 838 F.3d 55, 64 (1st Cir. 2016) (“Eve n without partic

‐

ular Supreme Court and First Circuit cases directly on point,

it was clearly established in September 2012 that exerting sig

‐

ni fi cant, continued force on a person’s back while that [per

‐

son] is in a face

‐ down prone positi on after being subdued

and/or incapacitated constitutes excessive force.”) (internal

quotations omi tt ed) (citing Weigel v. Broad

, 544 F.3d 1143, 1155

(10th Cir. 2008); Champion v. Outlook Nashville, Inc.

, 380 F.3d

893, 903 (6th Cir. 2004)).

First, “[i]t is clear,

... that police o ffi cers do not have th e

right to shove, push, or otherwise assault innocent citizens

without any provocation whatsoever .” Clash v. Bea tt y

, 77 F.3d

1045, 1048 (7th Cir. 1996). In Clash

, o ffi cers responded to a 911

call reporting that someone was armed—in fact, it was the

plainti ff ’s 12

‐ year

‐ old who had pointed a toy gun at his sib

‐ ling in a grocery store parking lot while waiting for their par

‐

ents. Id. at 1046–47. A “virtual armada” of o ffi cers pulled over

the plainti ff ’s vehicle, ordered the family out, and searched

the driver for we apons. Id. They found none. Id. Still, o ffi cers

handcu ff ed him and shoved him into a patrol car, injuring his

knees. Id. We agreed with the district court that the record did

not clearly show whether or not the o ffi cer had violated

clearly established la w and dismissed the appeal for lack of

jurisdiction. Id. at 1048–49.12 No. 20

‐ 1109

Here, the Plainti ff ’s account of the facts also “draw[s] into

question the objective reasonableness of the police action.”

Clash

, 77 F.3d at 1048–49. Resolving the factual disputes in fa

‐

vor of the Plainti ff leaves us with a scenario in which an o ffi cer

deployed aggressive restraint tactics—tactics that wer e much

more forceful than the shoving and pushing described in

Clash —against an innocent civilian, without any provocation

beyond some mumbling and stumbling around a bedroom in

his own home.

Second, we have previously held that continuing to apply

unnecessary force against a civilian once he is already sub

‐

dued may be an unreasonable use of force. See Strand

, 910 F.3d

at 915 (“If the facts and circumst ances show that an individual

who once posed a threat has become ‘subdued and complying

with the o ffi cer’s orders,’ the o ffi cer may not continue to use

force.”); see also Johnson v. Rogers

, 944 F.3d 966, 970 (7th Cir.

2019) (“[T]here is no doubt that an unnecessary kick, afte r a

suspect is under control, violates the suspect’s clearly estab

‐

lished rights.”); Abdullahi

, 423 F.3d at 764–66. In Abdullahi

, we

held that questions of fact precluded a fi nding of quali fi ed im

‐ munity on summary judgment where o ffi cers restrained a ci

‐

vilian su ff ering from a PTSD episode. 423 F.3d at 464–66.

There, o ffi cers responded to a 911 call from a nurse who had

stopped to help a man who appeared to be in distress but who

had a tt acked the nurse when she approached him. Id. at 764–

65. Three o ffi cers worked together to subdue him on his stom

‐

ach. Id. One o ffi cer ended up placing his knee on the dece

‐

dent’s back and “applied his weight to keep [him] from

squirming of fl ailing.” Id. The o ffi cer “increased the pressure

on [the decedent’s] back until [he] stopped arching his back

upward.” Id. The decedent lost consciousness and died two

and a half minutes after “o ffi cers had taken him to theNo. 20

‐ 1109 13

ground.” Id. at 766. Under those circumstances, we held that

the facts, taken in the light most favorable to the plainti ff

, pre

‐

cluded summary judgment on quali fi ed immunity for the de

‐

fendant o ffi cer. Id. at 773. There, we said that “the record sup

‐

ports an inference that [the o ffi cer] knelt on [the decedent]

with enough force to in fl ict lethal injuries.” Id. at 770.

The facts of Abdullahi

, at the summary judgment stage, are

not so di ff erent from the facts of this case. 3 Here, viewing all

of the evidence in the light most favorable to the Plainti ff

, Gar

‐

re tt continued to apply signi fi cant restraints to Steven even

after he was restrained on the bed and had vomited and lost

consciousness. We acknowledge that Garre tt tells the facts dif

‐ ferently. But, as we observed in Ab dullahi

, though di ff erent in

‐

ferences can be drawn from the facts, “it is for a jury, and not

for us, to weigh all the evidence and choose between compet

‐ ing inferences.” Id.

Third, existing case law demonstrates that a medical emer

‐

gency does not extinguish a civilian’s Fourth Amend ment

rights. See id. The district court eschewed the cases cited above

and others cited by Plainti ff because those cases did not in

‐

volve a medical emergency in which the o ffi cers involved did

not play some kind of law enforcement role. This reasoning is

fl awed. Though a medical emergency may in some cases jus

‐ tify the use of force when providi ng medical aid, we reject the

notion that responding to a medical emergency gives police

o ffi cers an absolute license to disregard the Fourth

3 The facts of Abdullahi do di ff er from the facts here in that the civilian

there had a tt acked a nurse; whereas here, there is no argument that Steven

posed a threat to Garre tt or another third party.14 No. 20

‐ 1109

Amendment. 4 “[A] person’s Fourth Amendment rights are

not eviscerated simply because a police o ffi cer may be acting

in a noninvestigatory capacity for ‘it is surely anomalous to

say that the individual

... is fully protected by the Fourth

Amendment only when the individual is suspected of crimi

‐

nal behavior.’” United States v. King

, 990 F.2d 1552, 1560 (10th

Cir. 1993) (quoting Camara v. Municipal Court of City and Cnty.

of San Francisco

, 387 U.S. 523, 530 (1967)); see also Policky v. City

of Seward, Neb.

, 433 F. Supp. 2d 1013 (D. Neb. 2006). Rather,

courts should consider medical necessity, and the role that a

law enforcement o ffi cer plays in addressing that medical ne

‐ cessity, as part of their assessment of the Graham factors.

McAllister lends guidance. In that case, o ffi cers responded

to a tra ffi c accident that the plainti ff caused when his “blood

sugar level plummeted, sending him into a severe hypoglyce

‐

mic state.” 615 F.3d at 879. Believing that the plainti ff was in

‐

toxicated, the defendant o ffi cer forcibly removed the plainti ff

from his car, threw him to the ground, and used a knee to

subdue him, despite indications that the plainti ff may have

been su ff ering from a medical emergency, rather than intoxi

‐

cation. Id. The o ffi cer handcu ff ed the driver once he was on

the ground and left him convulsing on the pavement. Id. The

plainti ff su ff ered a broken hip and bruised lung as a result. Id.

4 Moreover, while an “o ffi cer’s evil intentions will not make a Fourth

Amendment violation out of an objectively reasonable use of force;

... an

o ffi cer’s good intentions [will not] make an objectively unreasonable use

of force constitutional.” Horton v. Pobjecky

, 883 F.3d 941, 950 (7th Cir. 2018)

(quoting Graham

, 49 0 U. S. at 397). Garre tt ’s subjective intent to aid Steven

is thus irrelevant.No. 20

‐ 1109 15

at 880. In a ffi rming the district court’s denial of quali fi ed im

‐ munity, we held that:

[Our case law] would not suggest to a reasonable of

‐

fi cer that he may slam an unresponsive, convulsing

driver into the ground with force su ffi cient to break the

driver’s hip and place his kn ee on the driver’s back

with enough force to bruise his lung. Such conduct

goes beyond the bounds of the plainti ff ’s clearly estab

‐

lished Fourth Amendment rights and thus deprives the

defendant of quali fi ed immunity.

Id. at 886. Accordingly, we held that “[e]ven if [the defendant

o ffi cer] wa s justi fi ed in using some force to remove [the plain

‐

ti ff ] from the vehicle, using the force involved here against a

non

‐ resisting suspect could have been unreasonable given the

circumstances.” Id. at 884.

The Sixth Circuit addressed a similar situation in McKenna

v. Edgell

, 617 F.3d 432, 435 (6th Cir. 2010) where it a ffi rmed the

denial of quali fi ed immunity to two o ffi cers who restrained a

civilian who was su ff ering from a seizure. When o ffi cers ar

‐

rived at the home in response to a 911 call that an individual

was choking or having a seizure, the o ffi cers instructed the

seizing individual to get out of bed and put his pants on. Id.

When he could not comply, the o ffi cers tried to pick him up

and ultimately handcu ff ed him. Id. at 435–36. While in the

home, the o ffi cers searched the ho use, ran the decedent’s car’s

plates, and questioned others about the decedent’s drug use.

On appeal, the court reasoned that the o ffi cers’ entitlement to

quali fi ed immunity depended on whether the o ffi cers acted

as law enforcement or as emergency medical responders at

the decedent’s home. Id. at 439–40. The court noted that thi s

inquiry was an objective one. Thus it was irrelevant “whether16 No. 20

‐ 1109

[the o ffi cers] had a law

‐ enforcement or medical

‐ response in

‐

tent ; the focus must be on what role their actions reveal them

to have played.” Id. at 440 (emphasis added). Finally, the court

held “the objective determination of the role that the o ffi cers

played

... is properly a jury question because the legal ques

‐

tion of immunity is completely dependent upon which view

of the disputed facts is accepted by the jury.” Id. at 441 (inter

‐

nal quotations omi tt ed).

To review, three principles are clear: First, o ffi cers do not

have a right to assault civilians without provocation. Clash

, 77

F.3d at 1048. Second, o ffi cers may not use unnecessary force

when a civilian is already subdued or compliant. Strand

, 910

F.3d at 915. Third, a medical emergency impacts the objective

reasonableness of a seizure, but an emergency does not “evis

‐

cerate” the civilian’s Fourth Amendment rights. Taking these

principles together, it has been clearly established that the

method and manner of restraint must fi t the circumstances of

the particular case. See McAllister

, 615 F.3d at 879–80. O ffi cers

can employ only those means of restraint appropriate in a

given situation. This is especially so for lethal force. In other

words, it was clearly established by 2016 that an o ffi cer who

forcibly restrained a civilian who was not a suspect of a crime

and who did not pose a threat to those around him, resulting

in vomiting and loss of consciousness before the o ffi cer re

‐

leased the civilian, vio lated that civilian’s Fourth Amendment

rights.

We acknowledge that the Plainti ff ’s and Defendant’s ac

‐

counts of the events diverge with respect to the facts sur

‐ rounding the incident, including whether Steven was a threat

to himself or others, whether Garre tt ’s actions served a medi

‐

cal or law enforcement purpose, and whether the force usedNo. 20

‐ 1109 17

was objectively reasonable under the circumstances. Each of

these material disputes of fact must be determined by the

jury, so that the court can properly assess Garre tt ’s entitle

‐

ment to quali fi ed immunity.

“[S]ince the Graham reasonableness inquiry ‘nearly always

requires a jury to sift through disputed factual contentions,

and to draw inferences therefrom, we have held on many oc

‐

casions that summary judgment or judgment as a ma tt er of

law in excessive force cases should be granted sparingly.’” Ab

‐

dullahi

, 423 F.3d at 773 (citing Santos v. Gates

, 287 F.3d 846, 853

(9th Cir. 2002)); see also Siler v. City of Kenosha

, 957 F.3d 751,

759 (7th Cir. 2020) (“‘[S]ummary judgment is often inappro

‐ priate in excessive

‐ force cases because the evidence surround

‐ ing the o ffi cer’s use of force is often susceptible of di ff erent

interpretations,’ particularly where ‘the one against whom

force was used has died, because the witness most likely to

contradict the o ffi cer’s testimony—the victim—cannot tes

‐ tify.’”) (quoting Cyrus v. Town of Mukwonago

, 624 F.3d 856, 862

(7th Cir. 2010)). Here, the district court erred by implicitly

crediting Garre tt ’s version of the facts and fi nding that Garre tt

was acting in a medical capacity and therefore entitled to

quali fi ed immunity.

Defendant urges us to approve the district court’s reading

of our decision in Thompson v. Cope

, 900 F.3d 414 (2018), but

that decision does not control the outcome of this case. In

Thompson

, a paramedic responded to an emergency call to

treat an animal bite. Id. at 418. Upon arriving at the scene, the

paramedic discovered that the animal bite was in fact a hu

‐

man bite, in fl icted by a naked and belligerent suspect who

law enforcement o ffi cers were struggling to restrain. Id. The

paramedic believed th e suspect to be high on amphetamines18 No. 20

‐ 1109

and administered a sedative to calm the suspect down. Id. At

some point, the suspect stopped breathing and ultimately

passed away eight days later. Id.

The district court held that the paramedic had acted as a

law enforcement o ffi cer and denied summary judgment, so

we reviewed the interlocutory appeal for legal error only

. Id.

at 419. We reversed the district court’s denial of quali fi ed im

‐ munity for the paramedic because the administration of the

sedative to a “combative” and likely under

‐ the

‐ in fl uence sus

‐

pect (who had bi tt en another person) was not a clearly estab

‐

lished violation of the decedent’s constitutional rights. Id. at

423. We wer e skeptical that a “paramedic (or his lawyer)

... would have understood that the Fourth Amendment

... ap

‐ plies to treatment in the fi eld during a medical emergency.”

Id. at 422–23.

The facts and posture of this case di ff er from Thompson

. First, althou gh Garre tt may have had training as a paramedic,

he responded to Gloria’s 911 call dressed and equipped as a

law enforcement o ffi cer, arriving without any kind of medical

supplies or equipment with which he might have treated a ci

‐

vilian su ff ering from a hypoglycemic “sugar spell.” Thus a

jury could reasonably infer that Garre tt responded as a law

enforcement o ffi cer, not as an emergency medical provider.

Though we do not suggest that labels alone should dictate the

analysis in this kind of situation, 5 the function of the state ac

‐

tor is certainly a relevant consideration in assessing the objec

‐

tive reasonableness of a particular use of force. Second, unlike

5 Cf. Currie v. Chhabra

, 728 F.3d 626, 630 (7th Cir. 2013) (“[F]rom the

perspective of the arrestee, it ma tt ers not a whit whether it is the jailer or

the doctor whose conduct deprives him of life

‐ saving medical care.”).No. 20

‐ 1109 19

the undisputed facts in Thompson

, it is not at all clear that Gar

‐

re tt was providing medical care to Steven by restraining him

in the manner described. Here, critical facts are in dispute that

may render Garre tt ’s use of force unreasonable, and those

facts must be decided by the jury.

Though rare, trial courts may consider quali fi ed immunity

after trial. Estate of Escobedo v. Martin

, 702 F.3d 388, 398 n.4 (7th

Cir. 2012). And although the Supreme Court has urged lower

courts to determine the applicability of quali fi ed immunity as

soon as practicable, 6 it is sometimes impossible to resolve the

quali fi ed immunity question before trial. See id. ; see also Clash

,

77 F.3d at 1048 (where “the facts draw into question the objec

‐

tive reasonableness of the police action under the alleged cir

‐

cumstances, they must be developed in the district court be

‐

fore a de fi nitive ruling on th e defense can be made.”). This is

one such case. There may be a set of facts, established at trial,

under which Garre tt ’s use of force was not excessive, or was

not clearly established as excessive. But taking the facts in the

light most favorable to the Pl ainti ff at this stage, we cannot

agree with the district court that Garre tt ’s use of force did not

violate Steven’s clearly established constitutional rights. We

thus reverse. Assuming this case goes to trial, the district court

would be well

‐ advised to use a speci fi c jury verdict form to

probe the facts that the jury fi nds to aid in any post

‐ verdict

determination of quali fi ed immunity. See Smith v. Finkley

, ‐‐

F.4th

‐‐ , 2021 WL 3660880, at *19 (7th Cir. Aug. 18, 2021)

(“When the issue of quali fi ed immunity remains unresolved

at the time of trial,

... the district court may pro perly use spe

‐

cial interrogatories to allow the jury to determine disputed

6 See, e.g.

, Pearson v. Callahan

, 555 U.S. 223, 231–32 (2009).20 No. 20

‐ 1109

issues of fact upon which the court can base its legal determi

‐

nation of quali fi ed immunity.”) (quoting Warlick v. Cross

, 969

F.2d at 303, 305–06 (7th Cir. 1992)).

B. Causation

Garre tt argues in the alternative that Plainti ff failed to es

‐

tablish causation as to Steven’s injuries, so that he is en titled

to summary judgment even if we fi nd he is not entitled to

quali fi ed immunity.

Section 1983 requires the plainti ff to show that Garre tt

“cause[d]” the deprivation of Steven’s constitutional rights.

42 U.S.C. § 1983. Causation is fundamentally a jury question.

Kaiser v. Johnson & Johnson

, 947 F.3d 996, 1016 (7th Cir. 2020);

Wisc. Mut. Ins. Co. v. United States

, 441 F.3d 502, 505 (7th Cir.

2006). We have previously held that expert testimony is not

necessary to prove causation in a § 1983 action, though it is

di ffi cult to establish causation without it. See Cyrus v. Town of

Mukwonago

, 624 F.3d 856, 864 (7th Cir. 2010). “[T]he general

rule is that expert testimony is not necessary to prove cau sa

‐

tion ‘if all the primary facts can be accurately and intelligibly

described to the jury, and if they, as men of common under

‐ standing, are as capable of comprehending the primary facts

and of drawing correct conclusions from them.’” Id. (quoting

Salem v. U.S. Lines Co.

, 370 U.S. 31, 35 (1962)).

Here, Plainti ff has presented evidence that men of com

‐

mon understanding could comprehend. See id. Taking the ev

‐

idence in the light most favorable to Pl ainti ff

, Garre tt applied

police restraint techniques to Steven, who vomited and then

lost consciousness while in those restraints and never re

‐ gained consciousness. But Plainti ff does not simply have to

rely on these facts, because she has also presented two expertNo. 20

‐ 1109 21

witnesses who opined that Steven died due to the force Gar

‐

re tt used to restrain him. Dr. Richard Friedlander, a cardiolo

‐ gist with forty years of experience opined that:

It is my professional opinion based upon a reasona

‐

ble degree of medical certainty that respiratory fail

‐

ure or respiratory compromise can result in a car

‐

diac event in some instances. It is also my profes

‐

sional opinion based upon a reasonable degree of

medical certainty that hypoglycemia does not nec

‐ essarily lead to a cardiac event in every individual

experiencing them.

... [P]lacing the patient in a

prone position and applying pressure to his body

resulted in respiratory compromise which in turn

led to loss of consciousness and a respiratory ar

‐

rest.

... Th[e] series of events strongly suggests that

the cardiovascular collapse was not the result of a

cardiac event. In other words, to a reasonable degree

of medical certainty, this series of events strongl y

suggests that the cardiovascular collapse experi

‐

enced by Mr. Taylor was the result of the respiratory

compromise that resulted due to the pressure ap

‐ plied to his body.

A second doctor, Dr. Joel Silverman, who has twenty years of

experience in critical medical care and pulmonology opined

that, “[i]f the family’s v ersion of events is taken as true, given

the condition Mr. Taylor was in, with a reasonable degree of

medical certainty the cardiopulmonary arrest likely could

have been caused by obstruction of his airway by O ffi cer Gar

‐

re tt .”

Doctors who treated Steven be fore his death could not say

with certainty what series of medical events led to Steven’s22 No. 20

‐ 1109

death. For instance, one of the emergency room doctors who

treated Steven opined that “there is no de fi nite way” to deter

‐

mine whether Steven had fi rst su ff ered from respiratory ar

‐

rest or cardiac arrest. This treating physician also testi fi ed that

he had never seen hypoglycemia itself lead to respiratory ar

‐

rest. Steven’s cardiologist also could not say with certainty

which medical event came fi rst—he could not “say what ex

‐ actly caused Mr. Taylor’s cardiac arrest.”

Although the medical examiner did not perform an au

‐

topsy in this case, the expert opinions of Drs. Friedlander and

Silverman adequately create a question of fact regarding

whether Garre tt ’s restraint tactics caused Steven’s death. It

may be the case that Steven’s pre

‐ existing medical conditions

contributed to his inability to recover consciousness, but Ste

‐

ven’s treating physicians’ testimony further con fi rms that the

question of causation is still clouded by factual disputes.

Give n the expert testimony and the “eggshell skull” rule, 7

causation is also a question for the jury.

III. Conclusion

For the foregoing reasons, the judgment of the district

court is REVERSED and the case is REMANDED for further

proceedings. As the parties and the district court prepare for

7 “The tortfeasor takes his victim as he fi nds him. That is the ‘eggshell

skull’ rule, which like most principles of the common law of torts is appli

‐

cable to a constitutional tort case brought under 42 U.S.C. § 1983.” Richman

v. Sheahan

, 512 F.3d 876, 884 (7th Cir. 2008) (citing B racke tt v. Pe ters

, 11 F.3d

78, 81 (7th Cir. 1993); Gibson v. Cnty. of Washoe

, 290 F.3d 1175, 1192–93 (9th

Cir. 2002)).No. 20

‐ 1109 23

trial, we suggest the use of a special verdict form to probe any

determination by the jury to aid the district court should it

need to reconsider the quali fi ed immunity determination

post

‐ trial.