In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1139

Victor R. McNair and Tre K. McNair,

Plaintiffs-Appellants,

v.

Sean Coffey,

Defendant-Appellee.



Appeal from the United States District Court
for the Western District of Wisconsin.
No. 99-C-163-S--John C. Shabaz, Chief Judge.


Argued November 1, 2000--Decided December 8, 2000



  Before Cudahy, Coffey, and Easterbrook, Circuit
Judges.

  Easterbrook, Circuit Judge. A jury awarded
brothers Victor and Tre McNair $5,000 apiece to
compensate them for the fright and indignity they
suffered when officer Sean Coffey pulled over
their car and, with the aid of seven other
officers (a total of eight squad cars), arrested
them at gunpoint for the offense of not paying
parking tickets. The jury concluded that, by
treating these scofflaws as if they were armed
bank robbers apprehended after a high speed
chase, officer Coffey used excessive force and
thus violated the fourth amendment, as
interpreted in Graham v. Connor, 490 U.S. 386
(1989), and Lester v. Chicago, 830 F.2d 706 (7th
Cir. 1987).

   Taken in the light most favorable to the
verdict, as it must be, the evidence shows that
the McNairs were driving peaceably to church one
evening when officer Coffey put on his lights to
signal them to stop. Coffey had adequate reason
to do this: a check showed that the license plate
had been suspended for nonpayment of parking
fines. Although Coffey was not interested in this
offense but wanted instead to look into the
possibility of drugs, probable cause for the stop
was not undercut by Coffey’s desire to
investigate a different offense. Whren v. United
States, 517 U.S. 806, 811-13 (1996). Driving in
a rough neighborhood, the McNairs were hesitant
to stop on a poorly lighted street. So they did
not immediately pull over but drove slowly to a
well illuminated gas station, where they pulled
off the road and waited for the police car.
Officer Coffey meanwhile had radioed his
dispatcher that a chase was in progress and
called for armed backup. The McNairs stopped
about a mile from the place where Coffey turned
on the patrol car’s flashing lights. The price of
this delay was that the police treated the
McNairs like desperadoes who had been firing
tommy guns out the windows.

  According to Coffey, this was a "high risk
traffic stop"--not only because of the
neighborhood but also because the McNairs did not
stop immediately and the officer was not sure how
many persons were in the car. Coffey’s response
was to crouch behind the door of his squad car,
point a semiautomatic pistol at the McNairs, and
demand over a loudspeaker that they put their
hands against the inside roof of the car. They
complied without making any suspicious move. When
other patrol cars had arrived, and at least four
more officers had the McNairs in their sights,
Coffey ordered them to get out with their hands
in the air; again they complied peaceably. Both
McNairs were handcuffed and arrested--a step that
enabled Coffey to search their persons and their
car. (He found nothing unlawful.) Tre, who had
been the passenger, was released after about 25
minutes, and Victor after an hour. Both were
shaken by the experience.

  Neither McNair was roughed up, and although the
officers’ histrionics seem a bit much for a
traffic stop, we do not deprecate the risk that
confronts the police in these situations. Perhaps
Coffey could have argued that an excessive
display of force must be distinguished from an
excessive use of force. See Gumz v. Morrissette,
772 F.2d 1395, 1408-09 (7th Cir. 1985)
(concurring opinion). But he did not move for
judgment under Fed. R. Civ. P. 50 either at the
close of the evidence or after the verdict.
Instead he accepted the jury’s conclusion that
the conduct violated the fourth amendment and
argued that, even so, he is entitled to qualified
immunity from civil liability. With this
contention the district court agreed, setting
aside the verdict and entering judgment for
Coffey. The judge relied principally on Wilson v.
Layne, 526 U.S. 603, 614-18 (1999), one of many
cases implementing the holding of Anderson v.
Creighton, 483 U.S. 635 (1987), that until the
constitutional right has been made specific
enough that a reasonable officer would be aware
of his obligations, immunity offers protection.
  Public officials must act in the shadow of
legal uncertainty. Unlike private actors, who can
retire from the fray while legal debate persists,
police must protect the public (and themselves)
as best they can while coping with complex bodies
of law that not only change but also often leave
important subjects unresolved for extended
periods. When the law is in flux, or when the
only applicable norm is a multi-factor balancing
test incapable of predictable application,
prospective relief is used in lieu of damages.
See Auriemma v. Rice, 910 F.2d 1449 (7th Cir.
1990) (en banc); Greenberg v. Kmetko, 840 F.2d
467 (7th Cir. 1988) (en banc).

  For many years the analysis of excessive-force
claims was beset by legal uncertainty. Some
courts analyzed these claims under the fourth
amendment, some under the fifth (and, if under
the fifth, some for "conscience-shocking"
conduct, a standard very hard to pin down in
practice). Some courts used a subjective
approach, others an objective one. Uncertainty
about the legal standard ended, however, with the
Supreme Court’s opinion in Graham, which adopts
an objective approach under the fourth amendment.
There may still be uncertainty in the application
of that standard to particular situations, but
this is not the kind of legal uncertainty that
Anderson and Wilson discuss. It is enough that
the rule of law be specific in its relation to
the facts--and Graham makes the norm as clear as
the judiciary can achieve, more specific than
rules of tort law under which juries regularly
award large damages against surgeons and auto
manufacturers.

  Still, Coffey insists, he is entitled to
immunity unless a reasonable officer in his
position would have known that the Graham
standard labeled his conduct excessive. Six
courts of appeals agree with this proposition.
Napier v. Windham, 187 F.3d 177, 188 (1st Cir.
1999); Finnegan v. Fountain, 915 F.2d 817, 822-23
(2d Cir. 1990); Slattery v. Rizzo, 939 F.2d 213,
215-16 (4th Cir. 1991); Brown v. Glossip, 878
F.2d 871, 873-74 (5th Cir. 1989); Landrum v.
Moats, 576 F.2d 1320, 1327-28 (8th Cir. 1978);
Gold v. Miami, 121 F.3d 1442, 1446 (11th Cir.
1997). We are not among these courts, however.
See Frazell v. Flanigan, 102 F.3d 877 (7th Cir.
1996); Titran v. Ackman, 893 F.2d 145 (7th Cir.
1990). Frazell holds that "once a jury has
determined under the Fourth Amendment that the
officer’s conduct was objectively unreasonable,
that conclusion necessarily resolves for immunity
purposes whether a reasonable officer could have
believed that his conduct was lawful." 102 F.3d
at 886-87. This conclusion has the support of at
least four other circuits. Holt v. Artis, 843
F.2d 242, 246 (6th Cir. 1988); Katz v. United
States, 194 F.3d 962 (9th Cir. 1999), cert.
granted under the name Saucier v. Katz (No. 99-
1977, Nov. 11, 2000); Street v. Parham, 929 F.2d
537, 540, 541 n.2 (10th Cir. 1991); Scott v.
District of Columbia, 101 F.3d 748, 759 (D.C.
Cir. 1996). The Supreme Court may resolve this
conflict in Saucier; unless superseded by higher
authority, however, the position articulated in
Frazell prevails in this circuit.

  This is not to say that qualified immunity is
inconceivable in an excessive-force case. See
Ellis v. Wynalda, 999 F.2d 243, 246 n.2 (7th Cir.
1993). Judges rather than juries resolve immunity
defenses, and a judge might conclude before
trial--indeed, before discovery, see Hunter v.
Bryant, 502 U.S. 224 (1991)--that the
circumstances would not have alerted a reasonable
officer that his acts could be deemed an
application of excessive force. Moreover,
whenever the legal status of a course of conduct
is uncertain, damages are inappropriate. Thus if
officer Coffey had argued that fright and dismay
(= assault), as opposed to unjustified physical
contact (= battery), cannot support an excessive-
force claim, and if the answer to that contention
were legally uncertain, then immunity would be
available. That’s the upshot of Wilson and Layne,
where legal uncertainty about the meaning of the
fourth amendment prevailed when the officers
acted. But, as we have said, officer Coffey did
not make such an argument in the district court
and does not advance it now. He takes all legal
principles as settled and argues that he is
immune from damages liability nonetheless. That
seems to us unsound, and not just because Frazell
precludes it.

  To say that a public official is not exposed to
damages even when all legal issues were
authoritatively resolved before the conduct
occurred would be to make a substantial change in
the scope of liability under 42 U.S.C. sec.1983.
Cf. Johnson v. Jones, 515 U.S. 304 (1995)
(emphasizing the link between immunity and legal
uncertainty). Officer Coffey’s argument for
immunity in factually (as opposed to legally)
close cases is fundamentally a request to
increase the plaintiff’s burden of proof--to
insist that the plaintiff show a violation not by
a preponderance of the evidence (where the
plaintiff can win a close case) but by clear and
convincing evidence (where all close cases go to
the defendant), perhaps even proof beyond a
reasonable doubt. Only then, the argument goes,
can we be sure that the public official should
have recognized the culpability of his conduct.
Yet a sec.1983 case is not a criminal
prosecution, and the preponderance standard
applies to civil claims of all sorts. See Grogan
v. Garner, 498 U.S. 279 (1991); Herman & MacLean
v. Huddleston, 459 U.S. 375, 390 (1983). It
should not be changed covertly, through an
immunity defense that imposes a heightened
standard of proof. Cf. Crawford-El v. Britton,
523 U.S. 574 (1998); Leatherman v. Tarrant
County, 507 U.S. 163 (1993). Moreover, the
formula for immunity officer Coffey seeks to use-
-whether a reasonable person would have realized
that his conduct violates established legal
standards-- reintroduces the element of
subjectivity that Graham deliberately removed. An
immunity defense along these lines would be
equivalent to saying that a plaintiff cannot
prevail without establishing both objective and
subjective unreasonableness. Undermining the
holding of Graham in this fashion has little to
recommend it.

  Let us never forget that immunity in sec.1983
cases is a judicial invention. Congress provided
for liability in absolute terms. Public officials
who violate the Constitution or laws must pay;
immunity is anti-textual. The justification for
immunity is that the scope of liability has grown
like topsy since 1871, when sec.1983 was enacted,
and that to carry out what Congress must have
meant a court may depart from what Congress said.
That’s a treacherous path for any judge to take,
though history may provide a map. The Supreme
Court has justified immunity doctrines as
approximating of the scope of public-official
liability that prevailed when sec.1983 was
enacted. See Richardson v. McKnight, 521 U.S.
399, 402-07 (1997); Wyatt v. Cole, 504 U.S. 158,
164 (1992). Fair enough in many parts of the law,
but not when dealing with the fourth amendment.
Until this century police faced absolute
liability (in trespass or battery) for their
acts; probable cause and reasonableness were
defenses, and immunity (on top of these defenses)
was unheard of. A principal function of the
fourth amendment was to protect private parties
from overreaching by the police by limiting the
availability of advance judicial approval (that
is, of a warrant) as a defense, to ensure that
citizens could recover unless arresting or
searching officers could establish the
reasonableness of their conduct. See Telford
Taylor, Two Studies in Constitutional
Interpretation 24-47 (1969); Akhil Reed Amar, The
Constitution and Criminal Procedure: First
Principles 3-17, 40-43 (1997). All the great
early opinions defining the scope of freedom from
official intrusion resolve damages claims,
without a hint that if the officers behaved
unreasonably they might still be immune from
liability. Thus a general doctrine of official
immunity, independent of legal uncertainty, is
not only anti-textual but also anti-historical in
fourth amendment cases. Perhaps the judiciary
would do well to rely more on damages liability
and less on the exclusionary rule to enforce the
fourth amendment--for damages go to all victims
of improper official conduct, while exclusion
benefits only the guilty and offers no solace to
persons such as the McNairs. We are reluctant to
follow an approach that further weakens damages
as a deterrent and leads to greater reliance on
the exclusionary rule.

  The judgment is reversed, and the case is
remanded with instructions to enter judgment on
the jury’s verdict.
