# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted February 10, 2020 *

Decided February 11, 2020

Before

MICHAEL S. KANNE, Circuit Judge

DIANE S. SYKES, Circuit Judge

AMY J. ST. EVE, Circuit Judge

No. 19-1816

MARQUELLE L. SMITH, Plaintiff-Appellant

,

v

.

HERBERT ADAMS, BLAKE HOLLINS, and J. T. VANCLEAVE, Defendants-Appellees

. Appeal from the United States District Court for the Southern District of Indiana,
Evansville Division.

No. 3:18-cv-00019-SEB-MPB

Sarah Evans Barker, J udge

.

O R D E R

After he was arrested during a chaoti c nighttime encounter, Marquelle Smith sued three officers, Herbert Adams, Blake Hollins, and J.T. VanCleave, from the Evansville Police Department in Indiana. He alleged that they violated his Fourth Amendment rights when they shot at his car, forcibly removed him from it, and

* We have agreed to decide the case wi thout oral argument because the briefs and record adequately present the facts and le gal arguments, and oral argument would not significantly aid the court. F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION
To be cited onl y in accordance with Fed. R. A pp . P. 32.1No. 19-1816 Page 2

deployed a Taser on him. See 42 U.S.C. § 1983. (His complaint included additional claims and named the police department, co unty jail, and sheriff as defendants, but those claims and parties were dismissed, and Smith has not appealed those dismissals.) Both sides moved for summary judgment, and the district court granted the defendants’ motion. Smith appeals. Because the record prop erly before us establishes that the use of force was reasonable under the circumstances, we affirm.

At the outset, we address Smith’s concer n that the district court limited the summary judgment record to the evidence designated by the defendant officers— namely, their affidavits, bodycam recordin gs, and portions of Smith’s deposition testimony. Local rules required Smith to suppo rt each fact he asserted, and each factual dispute he raised, with citations to admissibl e evidence in the record or an appendix.
S. D. I ND

. L.R. 56-1(b), (e), (f)(1)(A). Smith did not do so. While he insists that he too designated evidence, including 911 recordings , video footage, and o fficers’ depositions, he did not submit it to the court. (He atta ched only medical records, his deposition transcript, an affidavit about his injuries, and his criminal appellate briefs to his filings.)
For this reason—and because she believe d the officers’ bodycam recordings corroborated their testimony, see Scott v. Harris, 550 U.S. 372, 379–81 (2007)—the district judge ruled that there were no disputed fa cts and adopted the defendants’ account of

events.

Though Smith was proceeding pro se, the di strict judge was entitled to require strict compliance with the local ru les after warning him about them. See McNeil v. United States, 508 U.S. 106, 113 (1993); McCurry v. Kenco Logistics Servs., LLC., 942 F.3d 783, 786–87 (7th Cir. 2019). Smith did not properly cite or submit his evidence, and courts are not required to “wade throug h improper denials and legal argument in search of a genuinely disputed fact.” Curtis v. Costco Wholesale Corp., 807 F.3d 215, 219 (7th Cir. 2015) (quoting Bordelon v. Chicago Sch. Reform Bd. , 233 F.3d 524, 529 (7th Cir. 2000)). So like the district court, we base our factual summary on the officers’ submissions, viewing them in the light most favorable to Smith. See Tolliver v. City of Chicago, 820 F.3d 237, 241 (7th Cir. 2016). We note th at the bodycam footage is dark and frequently obstructed, rendering it susce ptible to multiple interpretations. See Jackson v. Curry, 888 F.3d 259, 264 (7th Cir. 2018). But the audio clearly captures the officers’ orders and Smith’s post-arrest verbalizations , so those are not subject to contradiction. See Scott, 550 U.S. at 379–81; Johnson v. Rogers, 944 F.3d 966, 969–70 (7th Cir. 2019) (extracting undisputed facts fr om grainy video recording).No. 19-1816 Page 3

Late one evening, officers from the Ev ansville Police Department responded to a 911 call about shots fired and a group of peop le fighting. Officers Adams and Hollins were first on the scene and saw three people, including Smith, arguing near a parked car. They approached the group with their flashlights out and guns drawn and ordered the individuals to be quiet, show their hands, and step away from the car. Two complied, but Smith did not hear the order, got into the car, and started the engine. The officers yelled at him to stop and get out. Smith, however, accelerated—so rapidly that the tires squealed and left marks on the ro ad. Adams and Hollins were in Smith’s path, so they fired their guns at the tires to stop the car (Adams three times and Hollins once). The shots hit the car, causing Smith to crash into a nearby garage.

Officer VanCleave arrived shortly after the crash, and Hollins and Adams approached the car with their guns out. Th ey again ordered Smith to show his hands and exit the car, but he did not comply and instead threw something out of the window. Hollins attempted to open the car door to get Smith out; at the same time, Smith moved his hands down towards his waist (to unfasten his seatbelt, he says). The officers again ordered Smith to keep his hands outside of the car and get out, and Smith shouted, “Pull me out, pull me out.” VanCleave and Ho llins then attempted to pull Smith out of the car window, with VanCleave holding Sm ith’s arms to keep his hands in view. Midway through the effort, Smith started forcibly pulling away from the officers, hooked his feet inside the car, and appeare d to reach for something. In response, VanCleave deployed his Taser on Smith, and the officers were finally able to pull him
out of the car.

Once Smith was on the ground, the officers continued ordering him to give them his hands, but Smith kept them under hi s stomach. After a brief struggle, they handcuffed him, and he apologized for his behavior. But he soon began cursing and struggling, so officers took hi m to the ground again. (No o fficer says so, but audio from the bodycam suggests that they used the Tase r on him a second time.) Smith continued to curse and threatened to fight the office rs. They eventually subdued him and placed him in custody. About an hour after his arre st, after Smith complained that they had beaten him, officers took him to the hosp ital for an examination. Smith denied any injuries, but a nurse tended to his eye and removed a Taser prong from his back. Later, at the jail, Smith discovered a second prong.

When searches of his person and car yi elded cocaine and marijuana, Smith was charged with drug possession as well as a ttempted aggravated battery for driving his car at the officers. A jury found him guil ty of the drug counts but not guilty ofNo. 19-1816 Page 4

attempted aggravated battery. Smith sued Adams, Hollins, and VanCleave for using excessive force during his arrest and delaying his access to medical care in the
aftermath. The district court entered summ ary judgment in favor of the defendants, determining that the officers ’ use of force was reasonable under the circumstances and that, because little time elapsed between the arrest and his hospital visit, and Smith did not tell anyone that he was injured, they di d not unconstitutionally impede his access to
medical care.

Smith appealed. When he asked to proceed in forma pauperis, the district court certified that his appeal was not in good faith. See 28 U.S.C. § 1915(a)(3). In this court, however, a motions judge allowed him to proceed in forma pauperis insofar as he could raise a nonfrivolous argument “that he was subjected to excessive force during and
after his removal from the car.” That limit ing order is one this merits panel may reconsider, see United States v. Alcantar , 83 F.3d 185, 191 (7th Cir. 1996), but nothing Smith raises in his briefs persuades us that we should. We limit our review to that issue.

Smith first insists that Adams and Hollins used unreasonable force when they fired at his car because he did not have a gu n, was not attempting to flee, and received no warning, and the use of lethal force wa s disproportionate to the misdemeanor drug possession crimes of which he was later convic ted. A police officer’s use of force during an arrest is a seizure subject to the reasonableness requirement of the Fourth
Amendment. Graham v. Connor, 490 U.S. 386, 394 (1985). We evaluate the reasonableness of an officer’s action from “the perspectiv e of a reasonable officer on the scene,” not through “the 20/20 vision of hindsight.” Id. at 396. Relevant factors to evaluate include the severity of the crime at issue, whether th e suspect posed an immediate threat to the officer’s safety, and whether the suspect wa s resisting arrest or attempting to flee. See id.

We agree with the district court that firing four shots at Smith’s car was reasonable under the totality of the ci rcumstances. Because Adams and Hollins encountered Smith while responding to a 9 11 call about shots fired and fighting, they reasonably believed that Smith might be armed. When they ordered him to show his hands, he (unlike the two others on the st reet) ignored them, entering a car instead. Smith asserts that he was only going home an d not trying to flee, but officers knew only that he was disobeying orders and possibly armed. When he accelerated so rapidly that the tires squealed, they reasonably believed th at he might hit them and fired their guns to stop the car. Smith emphasizes that he was not conv icted of attempting to assault the officers, but his intent is irrelevant to whet her the officers reasonably believed that theyNo. 19-1816 Page 5

faced death or serious bodily injury—t he predicate to using deadly force. See Tennessee v. Garner, 471 U.S. 1, 11–12 (1985); Horton v. Pobjecky, 883 F.3d 941, 949 (7th Cir. 2018).

Smith’s arguments that he was not armed and that he was convicted only of lowlevel offenses are based on hindsight, but only facts known to the officers at the time of
the seizure matter in the reasonableness determination. See Graham 490 U.S. at 396; Fitzgerald v. Santoro , 707 F.3d 725, 732–33 (7th Cir. 2013). An d they fired only four shots at the bottom of the car; there is no di spute that they did not aim for Smith. See Plumhoff v. Rickard, 134 S. Ct. 2012, 2022 (2014) (firing 15 shot s at suspect fleeing in car was reasonable to end risk posed by his reckless driving).

Smith also contends that the officers used excessive force when they dragged him out of the car, used a Taser on him, an d wrestled him to the ground because, he asserts, he was not resisting arrest. But the record, including the bodycam audio, tells a different story of what officers reasonably perceived after the crash. Smith continued to disobey officers’ commands and refused to keep his hands in view and to get out of the car. They still did not know if he was armed. After Smith told them to pull him out of the car, he began to forcibly resist the ext raction, so they used a Taser on him. The bodycam audio shows that, once Smith was out of the car, he briefly calmed down, apologized, and asked them to pull his pa nts up (which had slipped during the extraction). But he quickly resumed strugg ling and began cursing and threatening to fight the officers. They forcefully took hi m to the ground again (apparently using a second Taser blast) to incapacitate him. Overall, the evidence shows that he was violently resisting arrest, so no reasonable jury could find that the officers acted unreasonably when they forcefully subdued him. See United States v. Norris, 640 F.3d 295, 303 (7th Cir. 2011) (use of Taser reasonable when suspect disobeyed commands and displayed intent to violently resist police).

AFFIRMED