UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

CRAIG STRAND, )

)

Plaintiff, )

)

v. ) No. 2:15 CV 149 

)

TOWN OF MERRILLVILLE, INDIANA, )

et al., )

)

Defendants. )

OPINION and ORDER

This matter is before the court on the motion for summary judgment filed by the

defendants, the Town of Merrillville, Indiana (“the Town”), and Merrillville police

officer Curtis Minchuk. For the reasons stated below, defendants’ motion (DE # 33) will

be denied. 

I. BACKGROUND

The following facts are not in dispute for purposes of defendants’ motion for

summary judgment. On May 20, 2013, plaintiff Craig Strand parked his semi-truck

tractor-trailer (“semi-truck”) in the parking lot of the Planned Parenthood clinic in

Merrillville, Indiana, where defendant Officer Minchuk was assigned to patrol.

(DE # 1 at 2.) Plaintiff parked the vehicle and left to take a drug test at a nearby

laboratory. (DE # 36 at 2.) Plaintiff asked a woman smoking outside the Planned

Parenthood if he could park his semi-truck in the parking lot and she told him that he

could. (Id.) 

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When Officer Minchuk subsequently reported for work at the Planned

Parenthood, he saw the truck and attempted to locate the driver. (DE # 34 at 6.) After

some investigation, he was unable to locate the driver and issued two traffic citations,

which he placed on the semi-truck. (Id.) When plaintiff returned to the truck and saw

the tickets, he asked to speak to Officer Minchuk. (Id.) Officer Minchuk drove his patrol

car to where the semi-truck was parked and plaintiff explained why he had parked in

the lot. (Id.) Plaintiff asked Officer Minchuk to void the tickets because there was not a

sign indicating that he could not park in the lot, and in fact had been told he could park

in the lot. (Id.) Plaintiff claims that Officer Minchuk solicited a bribe from him, but that

he refused the solicited offer. (DE # 36 at 2.) 

Officer Minichuk then drove his patrol car to the rear of the Planned Parenthood

facility, where he was able to observe plaintiff at a distance. (DE # 34 at 7; DE # 36 at 2.)

Instead of leaving the lot, plaintiff began taking photographs of the area, to establish the

absence of any “No Parking” signs. (DE # 36 at 2.) Officer Minchuk observed plaintiff in

the lot for three to five minutes and then returned to speak with plaintiff. (DE # 34 at 7.)

He told plaintiff to leave, and plaintiff explained that he would, but wanted to first take

photographs to show to the judge. (Id.) Officer Minchuk told plaintiff that he was

calling a tow truck and that plaintiff had two minutes to leave the parking lot. (Id.)

Plaintiff told Officer Minchuk that he would be gone before the tow truck arrived. (Id.) 

Officer Minchuk then told plaintiff, “I told you to get the fuck out of here,”

stepped toward plaintiff, slapped the phone out of plaintiff’s hand, and demanded

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plaintiff’s driver’s license. (Id.) Plaintiff refused to provide his identification, stating,

“No, I’m not gonna give you my fuckin’ I.D. I don’t have to give you shit. As a matter

of fact, who are you? What’s your badge number? What’s your I.D.? What gives you the

right to attack somebody who is acting in a peaceful manner; who’s simply come to a

place to try and do business?” (DE # 34 at 8.) Officer Minchuk responded, “I said, give

me your I.D.,” and grabbed plaintiff by the shirt and neck. (Id.) Plaintiff’s shirt was

ripped off and both men fell back a few steps. (Id.) Officer Minchuk again tried to grab

plaintiff and attempted to push him onto the ground. (Id.) Plaintiff pushed him off, but

Officer Minchuk continued to try to take plaintiff to the ground. (Id.) Plaintiff began to

fall, grabbed Officer Minchuk’s arm, and both men fell to the ground. (Id.) Officer

Minchuk fell onto his back and plaintiff fell onto his side. (Id.) Plaintiff then reached

over and grabbed Officer Minchuk by the neck and punched him in the face. (Id.)

Plaintiff punched Officer Minchuk in the face at least three times while the officer was

on his back, and while plaintiff’s hand was on the officer’s throat. (Id.) Officer Minchuk

argues that he feared for his life, saw stars, and felt that he would pass out if plaintiff hit

him again. (Id.) He worried that if he passed out plaintiff might be able to take his gun

and kill him. (Id.)

Plaintiff then rose off the ground, stood four to six feet away from Officer

Minchuk, put his hands in the air and stated, “I surrender. Do whatever you think you

need to do. I surrender, I’m done.” (Id. at 9.) Officer Minchuk, who was still on the

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ground, unholstered his gun and fired one bullet which struck plaintiff in the abdomen.

(Id.) Plaintiff survived and was later charged and convicted of felony battery. (Id.) 

The parties dispute how much time elapsed between plaintiff’s statement of

surrender and Officer Minchuk’s use of force. Plaintiff testified in his deposition that he

had his hands in the air between ten seconds and one minute before he was shot. (Id.)

However, defendants point to objective evidence that the entire physical altercation

took place in less than thirty seconds. At some point at the start of the physical

altercation Officer Minchuk called for assistance over his radio. (DE # 34 at 7.) The

evidence demonstrates that he radioed again to report the shooting 21 seconds later.

(Id. at 11.) Plaintiff does not challenge the accuracy of this evidence in his response brief,

nor does he dispute the time line set forth by defendants. 

Plaintiff’s complaint alleges that defendants are liable pursuant to 42 U.S.C. §

1983 for Officer Minchuk’s alleged use of excessive force. Plaintiff argues that Officer

Minchuk is personally liable, and that the Town of Merrillville is liable pursuant to

Monell v. Dept. of Social Svcs., 436 U.S. 658 (1978). Defendants argue that Officer

Minchuk is entitled to judgment in his favor as a matter of law because his decision to

employ the use of deadly force was objectively reasonable. (DE # 34 at 4.) Defendants

argue that the Town is likewise entitled to judgment in its favor because there is no

evidence that it had any policy, custom, or practice that was the moving force behind

Officer Minchuk’s alleged excessive force. (Id.) Defendants argue, in the alternative, that

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they are entitled to qualified immunity because defendants did not violate any of

plaintiff’s clearly established constitutional rights. (Id. at 12.) 

II. LEGAL STANDARD

Federal Rule of Civil Procedure 56 requires the entry of summary judgment, after

adequate time for discovery, against a party “who fails to make a showing sufficient to

establish the existence of an element essential to that party’s case, and on which that

party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). In responding to a motion for summary judgment, the non-moving party must

identify specific facts establishing that there is a genuine issue of fact for trial. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Palmer v. Marion County, 327 F.3d 588, 595

(7th Cir. 2003). In doing so, the non-moving party cannot rest on the pleadings alone,

but must present fresh proof in support of its position. Anderson, 477 U.S. at 248;

Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). A dispute about a material

fact is genuine only “if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson, 477 U.S. at 248. If no reasonable jury could find for

the non-moving party, then there is no “genuine” dispute. Scott v. Harris, 550 U.S. 372,

380 (2007). 

The court’s role in deciding a summary judgment motion is not to evaluate the

truth of the matter, but instead to determine whether there is a genuine issue of triable

fact. Anderson, 477 U.S. at 249-50; Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th

Cir. 1994). In viewing the facts presented on a motion for summary judgment, a court

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must construe all facts in a light most favorable to the non-moving party and draw all

legitimate inferences and resolve all doubts in favor of that party. NLFC, Inc. v. Devcom

Mid-Am., Inc., 45 F.3d 231, 234 (7th Cir. 1995).

III. ANALYSIS

A. Fourth Amendment Legal Standard for Use of Deadly Force

The touchstone of any Fourth Amendment analysis is reasonableness. Cty. of Los

Angeles, Calif. v. Mendez, 137 S. Ct. 1539, 1546–47 (2017). “[R]easonableness is generally

assessed by carefully weighing ‘the nature and quality of the intrusion on the

individual’s Fourth Amendment interests against the importance of the governmental

interests alleged to justify the intrusion.’” Id. (quoting Tennessee v. Garner, 471 U.S. 1, 8

(1985)).

The question whether the use of force during an arrest is proper under the

Fourth Amendment depends on the objective reasonableness of the officer’s actions,

judged on the basis of the conditions the officer faced. Graham v. Connor, 490 U.S. 386,

396 (1989). “Force is reasonable only when exercised in proportion to the threat posed,

and as the threat changes, so too should the degree of force.” Cyrus v. Town of

Mukwonago, 624 F.3d 856, 863 (7th Cir. 2010) (internal citations omitted). In order to

assess objective reasonableness, the court must consider all the circumstances, 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.; see also Johnson v. Scott, 576 F.3d 658, 660 (7th

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Cir. 2009). An officer may use deadly force only to seize a fleeing felon who has

committed a violent crime or who presents an immediate danger to the officer or to

others. Garner, 471 U.S. at 11.

B. Defendants’ Argument

Defendants argue that this court should find as a matter of law that plaintiff was

not subdued at the time Officer Minchuk employed deadly force. Defendants point to

two precedential cases in which a court was able to determine, as a matter of law, that

the plaintiff-suspect was not subdued at the time that the defendant-officer utilized

force, and thus the use of force was reasonable. See Johnson v. Scott, 576 F.3d 658, 659

(7th Cir. 2009) and City and Cty. of San Francisco, Calif. v. Sheehan, 135 S. Ct. 1765 (2015). 

In Johnson, the plaintiff, a suspect in a shooting, fled police capture by car and

then by foot. 576 F.3d at 659. As the defendant police officer and his canine companion

cornered the plaintiff by a fence, the plaintiff made a last-minute surrender, put his

hands in the air and stated, “I give up.” Id. At the time, the defendant and his canine

companion were only six to eight feet from the plaintiff. Id. The defendant’s canine

companion seized the plaintiff’s arm, the officer took the plaintiff to the ground. Id. The

plaintiff continued to struggle in order to escape the canine’s grasp, the officer struck

the plaintiff several times to subdue him, and the officer was able to place handcuffs on

the plaintiff. Id. at 659-660. The plaintiff subsequently alleged that the officer’s use of

force was excessive because he had already surrendered prior to the use of force. Id.

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The Seventh Circuit affirmed the district court’s decision to grant summary

judgment in favor of the officer on the basis that the officer’s use of force was

reasonable as a matter of law. Id. The Court found that the Graham factors both weighed

heavily in favor of a finding of reasonableness. Id. The Court emphasized the severity of

the plaintiff’s suspected offense, plaintiff’s reckless flight from the police, and the

officer’s reasonable belief that the plaintiff was armed. Id. The Court found that the

officer was not required to take the plaintiff’s surrender at face-value under the

circumstances because the plaintiff surrendered at the very moment he realized he was

cornered. Id. 

The second case cited by defendants is City and County of San Fransisco, Calif. v.

Sheehan, in which the Supreme Court considered the liability of defendant police

officers who utilized deadly force to subdue a violent, knife-welding, mentally-ill

woman. 135 S. Ct. at 1771. In Sheehan, local authorities had made several attempts to

subdue the plaintiff in order to provide her with a mental health evaluation and

treatment. Id. at 1770. Each time local authorities entered the plaintiff’s room, she

threatened them with a knife. Id. The defendant officers first used pepper spray in an

attempt to subdue her. Id. at 1771. When she refused to drop the knife, one of the

defendants shot her two times, but she did not collapse and did not drop the knife. Id.

The second defendant officer then fired several more shots, and she finally fell. Id. 

The question decided by the Supreme Court in Sheehan was whether the officers

violated the plaintiff’s Fourth Amendment rights when they decided to enter her room

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to restrain her by force, id. at 1775, however, here the defendants cite this case for

another proposition. Defendants point to a footnote in which the Court noted that the

parties’ dispute regarding whether Sheehan had fallen to the ground before the second

officer fired was not material. The Court stated that even if Sheehan had been on the

ground before the second round of shots were fired, “‘she was certainly not subdued.’”

Id. (internal citation omitted). Defendants argue that this finding supports their position

that Officer Minchuk acted reasonably in shooting plaintiff because plaintiff, like

Sheehan, was not subdued at the time he was shot. (DE # 34 at 18.)

C. Defendants’ Reliance on Johnson and Sheehan is Misplaced 

Defendants urge that, in light of Johnson and Sheehan, this court must find in their

favor. This is an overreaching application of the law. Pursuant to Johnson, a court may

find as a matter of law that an officer acted reasonably in employing force, in spite of a

suspect’s verbal statement of surrender. Johnson identifies circumstances that are

sufficient, but not necessary, to grant an officer summary judgment. Other cases,

however, identify circumstances in which an officer’s use of force after a suspect’s

surrender created a material question of fact to be determined by a jury. See e.g. Alicea v.

Thomas, 815 F.3d 283 (7th Cir. 2016) (genuine issues of material fact remained regarding

reasonableness of officers’ use of force, and degree of force used, after suspect “had

ceased flight, was effectively trapped, and [] immediately complied with police

orders.”).

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Johnson and Sheehan are distinguishable from the present case based on the very

factors that determine the reasonableness of an officer’s use of force. See Graham, 490

U.S. at 396. First, in this case, the underlying crime at issue was a parking violation. This

is significantly less serious than the crime in Johnson, where the plaintiff was the suspect

in a shooting.

Second, unlike in Johnson or Sheehan, there was no reason for Officer Minchuk to

believe that plaintiff was armed with a deadly weapon. Thus, a jury could reasonably

conclude that once plaintiff stepped away from Officer Minchuk and placed his hands

in the air he was no longer an imminent threat to Officer Minchuk.

Third, a jury could find that the degree of force that Officer Minchuk employed

was not proportional to the threat plaintiff posed. While Johnson was suspected of

involvement in a shooting and was believed to be in possession of a firearm, the force

employed against him was a dog bite. In this case, however, plaintiff had committed a

parking violation and there was no reason for Officer Minchuk to suspect plaintiff was

armed; yet, Officer Minchuk utilized deadly force.

Fourth, this case is distinguishable from Johnson and Sheehan because a jury could

reasonably find that plaintiff had been subdued prior to Officer Minchuk’s use of force.

Here, plaintiff voluntarily extracted himself from the altercation with Officer Minchuk,

stood and walked four to six feet away, placed his hands in the air, and stated, “I

surrender. Do whatever you think you need to do. I surrender, I’m done.”

(DE # 34 at 9.) In Johnson and Sheehan, however, the inference that the suspect had not

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surrendered or been subdued was much stronger. Johnson had made a prolonged

attempt to evade arrest and only surrendered at the moment he was cornered and could

run no more. Thus, a police officer could reasonably conclude that Johnson’s surrender

was disingenuous. Likewise, even if Sheehan had fallen to the ground after the first two

shots, she continued to brandish her knife at an officer who was cornered a few feet

away, and thus she obviously had not been subdued. 

The final reason that this case is distinguishable from Johnson and Sheehan

concerns Officer Minchuk’s own actions immediately prior to shooting plaintiff. Unlike

the cases cited by defendants, in this case Officer Minchuk was the initial aggressor. The

Seventh Circuit has held that “the sequence of events leading up to the seizure is

relevant because the reasonableness of the seizure is evaluated in light of the totality of

the circumstances.” Williams v. Indiana State Police Dep’t, 797 F.3d 468, 483 (7th Cir.

2015). An officer’s conduct, and any dangerous circumstances created by that officer,

provide context in determining whether the use of deadly force was objectively

reasonable. Id. “When an officer’s unreasonable (and unconstitutional) conduct

proximately causes the disputed use of force, that conduct is part of the ‘totality of the

circumstances’ that should be considered to determine if the use of force was reasonable

. . . .”Doornbos v. City of Chicago, 868 F.3d 572, 583 (7th Cir. 2017).

The Court’s reasoning in Doornbos is instructive. In Doornbos, a plainclothes

police officer allegedly failed to identify himself as a police officer during a stop-andfrisk, escalating the encounter into a physical confrontation and arrest. Id. at 577. In

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holding that the jury should have been instructed on police frisks, the Court stressed

that an officer’s actions that needlessly escalate a confrontation are relevant in

determining the reasonableness of those actions under the Fourth Amendment. The

Court considered, for example, whether the police tactic would provoke panic, hostility,

needless risk, or a fight-or-flight response - emphasizing that self-defense is a basic

right. Id. at 586. The Court ultimately held that because the officer’s conduct

“proximately caused the violent confrontation[,] [t]his information was relevant for the

jury in assessing whether [the officer’s] use of force was reasonable ‘under the totality of

the circumstances.’” Id. at 583 (internal citation omitted). “[P]olice officers ‘who

unreasonably create a physically threatening situation in the midst of a Fourth

Amendment seizure cannot be immunized for the use of deadly force.’” Id. at 584

(quoting Catlin v. City of Wheaton, 574 F.3d 361, n. 7 (7th Cir. 2009)).

Applying this reasoning to plaintiff’s case, a jury could find that Officer

Minchuk’s use of deadly force was not reasonable because he needlessly provoked the

physical altercation with plaintiff that later served as the basis of his use of force. There

was no indication that plaintiff might pose a danger to Officer Minchuk until after the

officer had slapped plaintiff’s cell phone out of his hands and grabbed him by the neck

and shirt forcefully enough to rip plaintiff’s shirt off. (DE # 34 at 7-8.) In fact, but for

Officer Minchuk’s alleged aggressions, the encounter likely would have been limited to

a routine parking citation. 

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Defendants urge the court to find Officer Minchuk’s use of force reasonable

based on his necessity for split-second decision-making. While this court is certainly

mindful that it must evaluate the reasonableness of Officer Minchuk’s use of force based

on the perspective of a reasonable officer on the scene, and not with the 20/20 vision of

hindsight, Alicea, 815 F.3d at 288, this alone is not sufficient to find in defendants’ favor.

“To be sure, an officer will not be held liable if the circumstances under which the force

was used evolved so rapidly that a reasonable officer would not have had time to

recalibrate the reasonable quantum of force.” Abbott v. Sangamon Cty., Ill., 705 F.3d 706,

733 (7th Cir. 2013). However, “[w]hen 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). See Miller v. Gonzalez, 761

F.3d 822, 829–30 (7th Cir. 2014) (question of fact existed regarding whether suspect had

been subdued at the time officer employed force where suspect had only been

motionless for ten seconds before officer broke suspect’s jaw to effectuate arrest). Here,

it is unclear whether the rapidly-evolving nature of the altercation justified Officer

Minchuk’s use or force, or whether he had time to recalibrate the degree of force

necessary, in light of plaintiff’s statement of surrender. In light of these questions of fact,

summary judgment will be denied.

B. Defendants’ qualified immunity defense

Defendants argue, in the alternative, that they are entitled to qualified immunity.

(DE # 34 at 25.) Defendants contend that (i) Officer Minchuk did not violate plaintiff’s

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Fourth Amendment rights when he employed deadly force, or else (ii) the contours of

plaintiff’s rights were not so clearly established that no reasonable officer in Officer

Minchuk’s position could have believed that deadly force was justified. (Id.)

The doctrine of qualified immunity shields officials from civil liability so long as

their conduct “‘does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.’” Mullenix v. Luna, 136 S. Ct. 305, 308

(2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). “To be clearly established

the ‘contours of the right must be sufficiently clear that a reasonable official would

understand that what he is doing violates the right.’” Becker v. Elfreich, 821 F.3d 920,

928–30 (7th Cir. 2016) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “[A] case

directly on point is not required for a right to be clearly established and ‘officials can

still be on notice that their conduct violates established law even in novel factual

circumstances.’” Id. (internal citation omitted). In undertaking this analysis, the court

takes care to “look at the right violated in a ‘particularized’ sense, rather than ‘at a high

level of generality.’” Roe v. Elyea, 631 F.3d 843, 858 (7th Cir. 2011) (internal citation

omitted). 

It is, of course, “clearly established that a police officer may not use excessive

force in arresting an individual.” Holmes v. Vill. of Hoffman Estates, 511 F.3d 673, 687 (7th

Cir. 2001). Moreover, it is well established that an officer may not continue to use force

after an individual has been subdued and has ceased resisting. See e.g. Johnson v. Scott,

576 F.3d 658, 660 (7th Cir. 2009) (“It is well established that a police officer may not

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continue to use force against a suspect who is subdued and complying with the officer’s

orders.”).

Here, however, there remains a question of fact as to whether plaintiff was

subdued prior to Officer Minchuk’s use of deadly force. Thus, the court must reserve

the question of defendants’ qualified immunity until this factual question has been

resolved. See Weinmann v. McClone, 787 F.3d 444, F.3d 448–451 (7th Cir. 2015) (“The

existence of a factual dispute about the circumstances surrounding [the defendant’s]

decision to fire on [plaintiff] precludes a ruling on qualified immunity at this point.”);

Abbott, 705 F.3d at 729–34 (fact dispute precluded ruling on qualified immunity at

summary judgment stage). 

IV. CONCLUSION

For these reasons, the court DENIES defendants’ motion for summary judgment

(DE # 33); GRANTS defendants’ motion for leave to file excess pages in support of their

motion for summary judgment (DE # 30); and GRANTS defendants’ motion to seal

Exhibits E, G, I, K to their motion for summary judgment (DE # 32). The court ORDERS

the parties to file a joint status report regarding their willingness to engage in a

settlement conference before a Magistrate Judge by March 2, 2018. A trial date will be

set under a separate order. 

SO ORDERED.

Date: February 7, 2018

s/James T. Moody 

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT

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