234 F.3d 352 (7th Cir. 2000)
Victor R. McNair and Tr  K. McNair, Plaintiffs-Appellants,v.Sean Coffey, Defendant-Appellee.
No. 00-1139
In the  United States Court of Appeals  For the Seventh Circuit
Argued November 1, 2000Decided December 8, 2000

Appeal from the United States District Court  for the Western District of Wisconsin.  No. 99-C-163-S--John C. Shabaz, Chief Judge.
Before Cudahy, Coffey, and Easterbrook, Circuit  Judges.
Easterbrook, Circuit Judge.


1
A jury awarded  brothers Victor and Tr  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).


2
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.


3
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.) Tr , who had  been the passenger, was released after about 25  minutes, and Victor after an hour. Both were  shaken by the experience.


4
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.


5
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).


6
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.


7
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.


8
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.


9
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.


10
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.


11
The judgment is reversed, and the case is  remanded with instructions to enter judgment on  the jury's verdict.

