                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 06-2378
ALIYANA M. HENNING, ESTATE OF GARRETT D. HENNING,
DEAN C. HENNING, et al.,
                               Plaintiffs-Appellants,
                         v.


TIMOTHY J. O’LEARY, MICHAEL BLASER,
SCOTT PETERSON, et al.,
                                 Defendants-Appellees.
                    ____________
          Appeal from the United States District Court
             for the Western District of Wisconsin.
            No. 05 C 582—John C. Shabaz, Judge.
                        ____________
 ARGUED JANUARY 16, 2007—DECIDED FEBRUARY 16, 2007
                    ____________


 Before EASTERBROOK, Chief Judge, and POSNER and
EVANS, Circuit Judges.
  EVANS, Circuit Judge. During a scuffle triggered by
his efforts to resist arrest, Garrett Henning was shot
and killed by Timothy O’Leary, a City of Janesville police
officer. Henning’s daughter Aliyana, his parents, and his
estate (the Hennings) brought an action under 42 U.S.C.
§ 1983, alleging that O’Leary, two other police officers, and
the City of Janesville violated Henning’s Fourth Amend-
ment rights and their right as his relatives to society
and companionship. They now appeal the district court
2                                              No. 06-2378

judge’s decision granting the defendants’ motion for
summary judgment.
  Because the Hennings are attempting to survive the
motion, we take the facts in the light most favorable to
their case and look to see whether there remains a
genuine issue of material fact for a jury to decide. See
Federal Rule of Civil Procedure 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
  Here then, are the facts. One night in October 2003,
Henning visited a friend, Richard Buol, at Buol’s
Janesville apartment complex. Buol says the two were
just hanging out and that Henning was “goofing” around
like he often did when they were together. Later, as he
was leaving the apartment complex parking lot around
11 p.m., a female neighbor of Buol’s confronted Henning
about being in the lot. A few words were exchanged, but no
significant incident occurred. Henning then got in his
truck and drove away. Meanwhile, the neighbor’s husband
called the Janesville police to report that a suspicious-
looking person wearing a ski mask, leather jacket, and
gloves was hanging around the parking lot before driving
off in an old, silver-gray Dodge truck. Dispatch sent two
officers, Michael Blaser and Scott Peterson, to investigate.
  Blaser realized that he had just been trailing the Dodge
truck prior to the call from dispatch, and he moved to
catch up with it. Peterson went to the complex, talked
with the complaining neighbor, and looked around the
parking lot. The neighbors pointed out a car that did not
belong there, and, after checking the registration, Peterson
determined that it probably belonged to Henning’s
mother. He also talked with Buol. By this time both
officers suspected they were dealing with Henning, who
was a suspect from a shooting a few days earlier. Blaser
also knew that Henning was on probation as a con-
victed felon found guilty of sexually assaulting a 15-year
old girl.
No. 06-2378                                              3

  Meanwhile, O’Leary radioed to indicate that he was
following Henning, whom O’Leary stopped as he pulled
into a Stop N’ Go gas station to buy cigarettes. Henning
rolled down his window when O’Leary approached and
provided his identification. He admitted to O’Leary that he
had been confronted at the apartment complex and that
he had a vehicle for sale there. Peterson and Blaser
arrived and continued the questioning—they had earlier
agreed to give Henning a warning about trespassing
rather than issue any sort of citation. Asked specifically
about Buol, Henning denied having seen him before
eventually admitting he had been there. Asked what he
had been wearing while at the apartment, Henning told
them he had on a black leather jacket but denied wearing
a ski mask or having one in his car.
  Having heard this, Blaser, who was on the passenger
side of Henning’s truck, noticed what appeared to be a ski
mask crumpled inside the car, and O’Leary spotted a
baseball bat on the side of the passenger seat. With this,
Blaser ordered Henning out of the truck, patted him down
for weapons, and directed him to sit in the back of his
squad car.
  At that point, Blaser says Henning gave him verbal
consent to search the truck. The Hennings dispute this
with circumstantial evidence: they question why Henning
would authorize the search, note that the other officers
were not present to hear the consent, and wonder why
Blaser would not have clarified things using the written
consent forms he carried with him. In any event, they
searched the truck and found some pepper spray and,
under the center of the dashboard, a gun—a clear viola-
tion of Henning’s probation.
  After finding the gun, Henning was told, as a prelude to
handcuffing him, to step out from the squad car, turn
around, place his hands behind his back, and spread his
4                                             No. 06-2378

legs. Henning did as directed, and Officer Blaser grabbed
his right hand and told him he was under arrest. Rather
than comply, Henning resisted and demanded an explana-
tion. He made a move away from the officers and the
car, at which point Peterson grabbed Henning’s left hand
as the two officers tried (and failed) to place him in
handcuffs. Peterson grabbed Henning by the torso to try
and bring him down as they called for O’Leary’s help. All
three officers shouted at Henning to stop resisting and
put his hands behind his back. But Henning continued to
fight, and even as they got him to the ground he succeeded
in pushing himself up on all fours. The officers tried
hand strikes, pepper spray, and baton blows to the torso
and legs to get him subdued.
  At some point, Peterson noticed that his gun, which had
been in his holster, was no longer at his side. Frantic, he
spotted the weapon on the ground underneath Henning
and reached out to try and position it away from the group.
But when he did this, he realized that something else
was restraining the gun’s movement. He noticed that
Henning’s hand was under his body out of view and might
be on the gun, and he shouted this to the other officers.
  Peterson tried reaching with his other hand and felt a
finger reaching for the trigger. Henning started to roll
over, pinning Peterson under his right side, and O’Leary
believed the barrel of the gun was facing him. A witness
(Tyler Dvorak) walking into the Stop N’ Go allegedly
heard one of the officers yell “drop the gun” and heard
Henning say something like “don’t shoot me.” O’Leary says
he heard Henning say “shoot me, you’re going to have to
shoot me.” O’Leary, taking care to avoid shooting the other
officers and a bystander, drew his gun and fired at
Henning’s midsection. Henning instantly went limp; he
died from the wound a few hours later. Blood and urine
samples revealed the presence of cocaine and THC in
Henning’s system.
No. 06-2378                                                5

  The Hennings’ complaint alleges that the search of
Henning’s truck, his arrest, and the use of excessive force
against him all violated the Fourth Amendment. It also
alleges that his death unconstitutionally caused his
parents and daughter a loss of society and companionship.
   After all the smoke is cleared away, this case comes
down to the excessive force claim. No surviving plain-
tiff ’s constitutional rights were violated when the officers
pulled Henning over, searched his truck, sought to arrest
him, or used deadly force against him, as “Fourth Amend-
ment rights are personal rights which . . . may not
be vicariously asserted.” Rakas v. Illinois, 439 U.S. 128,
133-34 (1978) (quoting Alderman v. United States, 394 U.S.
165, 174 (1969)).
  Aliyana and the parents assert their own rights in
bringing the loss of companionship claims, but even if
those rights are constitutionally protected (a dubious
proposition, at least for the parents, after Russ v. Watts,
414 F.3d 783, 790 (7th Cir. 2005); but see Smith v. City of
Fontana, 818 F.2d 1411, 1418-19 (9th Cir. 1987), overruled
on other grounds by Hodgers-Durgin v. de la Vina, 199
F.3d 1037 (9th Cir. 1999) (recognizing § 1983 cause of
action against state based on substantive due process
where officers’ actions causing father’s death deprived
children of his companionship)), whether they were in
fact violated turns on whether there was excessive force.
  Henning’s survivors might be able to step into his shoes
and exercise his remedies, but this depends (at least in
most cases) on a state’s survivorship statutes. Robertson v.
Wegmann, 436 U.S. 584, 590-91 (1978). Wisconsin recog-
nizes claims for wrongful death (which is effectively
what the excessive force claim is), and the estate or those
who would recover may bring the action for the deceased
plaintiff. Wis. Stat. Ann. § 895.04(1). We note that under
§ 895.04(2), Aliyana (but not Henning’s parents) can
6                                              No. 06-2378

participate in the suit alongside Henning’s estate on this
basis regardless of the validity of her companionship claim.
  But the other Fourth Amendment claims do not sur-
vive—at least not in this case. Asked at oral argu-
ment whether they were making a survivorship claim
based on the investigatory stop and search, the Hennings
conceded they were not. We thus need not consider, for
example, whether the claim regarding the illegal search
might be considered an invasion of privacy, a cause of
action that survives a deceased plaintiff in Wisconsin. See
Wis. Stat. Ann. § 895.01. In fact, we do not need to con-
sider the stop and search at all, because even in con-
junction with the excessive force claim, if the stop and
search were illegal, Henning had no right to resist the
officers’ attempts to arrest him. State v. Hobson, 577
N.W.2d 825, 837 (Wis. 1998).
  We turn then to the excessive force claim, which in-
vokes the Fourth Amendment’s prohibition against
“unreasonable . . . seizures.” Graham v. Connor, 490 U.S.
386, 394-95 (1989). Whether the force used to effectuate
a seizure is reasonable is determined by looking to the
particular facts and circumstances of the case and con-
sidering whether it was objectively reasonable (without
the benefit of hindsight) for an officer to conclude that
“the suspect poses an immediate threat to the safety of
the officers or others, and whether he is actively resist-
ing arrest or attempting to evade arrest by flight.” Id.
at 396-97. Deadly force, which O’Leary employed in this
case, is reasonable where an officer has reasonable
cause to believe that the suspect poses a danger of serious
bodily harm, such as when the officer believes the sus-
pect has a weapon or has committed a violent crime.
Tennessee v. Garner, 471 U.S. 1, 11 (1985); Jacobs v. City
of Chicago, 215 F.3d 758, 774 (7th Cir. 2000).
  Here, there can be no doubt that O’Leary had the
requisite reasonable cause. In the tense struggle that
No. 06-2378                                                7

followed Henning’s refusal to submit to the officers’
attempts to handcuff him, Peterson’s gun got loose, and at
least two officers believed Henning had his hands on or
near it. Police officers cannot be expected to wait until a
resisting arrestee has a firm grip on a deadly weapon
and completely freed himself from officers trying to sub-
due him before taking action to ensure their safety. Nor
can they be required to take a less deadly shot where
none is available that would not place someone else also
in jeopardy.
  The Hennings dispute the officers’ characterization of
the events, but they offer no real evidence to contradict it.
They did not depose Dvorak (perhaps he can’t be found),
the only nonpolice eyewitness to what happened, and they
otherwise rely only on some minor inconsistencies in the
three officers’ stories. Yet minor inconsistencies are not
unusual—indeed exact, step by step recall of this incident
by three different officers would be unusual. Absent
something else, the Hennings really offer nothing to
corroborate their version of the events—certainly not
enough to get them to a jury. “[T]he plaintiff must present
affirmative evidence in order to defeat a properly sup-
ported motion for summary judgment,” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 257 (1986), and the Hennings
have failed to do so.
  The judgment of the district court judge is AFFIRMED.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit

                   USCA-02-C-0072—2-16-07
