                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 15-1255
MITCHELL ALICEA,
                                                  Plaintiff-Appellant,

                                 v.

AUBREY THOMAS, ALEJANDRO ALVAREZ
and the CITY OF HAMMOND,
                                               Defendants-Appellees.
                     ____________________

         Appeal from the United States District Court for the
          Northern District of Indiana, Hammond Division.
          No. 2:11-cv-445 — Theresa L. Springmann, Judge.
                     ____________________

   ARGUED SEPTEMBER 11, 2015 — DECIDED MARCH 1, 2016
                     ____________________


   Before BAUER, WILLIAMS, and HAMILTON, Circuit Judges.
    WILLIAMS, Circuit Judge. This appeal arises out of serious
injuries suffered by Mitchell Alicea during the course of an
arrest by the Hammond Police. Alicea sued Sergeant Aubrey
Thomas and Officer Alejandro Alvarez under 42 U.S.C. § 1983
for violating the Fourth Amendment by using excessive and
unreasonable force to arrest him. The district court granted
2                                                   No. 15-1255

the defendants’ motions for summary judgment, finding that
Thomas and Alvarez did not use excessive force against Al-
icea, and that they were entitled to qualified immunity. Be-
cause we find that the facts taken in the light most favorable
to Alicea create a material dispute as to whether each officer’s
actions violated clearly established law, we reverse the district
court’s grant of summary judgment.
                      I. BACKGROUND
    On March 29, 2011, Mitchell Alicea burglarized a resi-
dence on the 4200 block of Towle Avenue in Hammond, Indi-
ana. While inside the residence, Alicea saw a police vehicle.
He fled the home and ran north on Towle Avenue, cutting
through an alley and into the backyard of another house. Al-
icea then vaulted into an empty, five-foot deep, above-ground
pool in the backyard, where he hid by sitting inside the pool.
       A. Finding Alicea
    That same day, Sergeant Aubrey Thomas was on canine
duty for the Hammond Police Department when he received
a radio dispatch alerting him of a potential burglary. With his
seventy-two pound police dog, Leo, he drove to the location
provided in the radio dispatch, and learned on the way that
the suspect may have fled the crime scene. He turned on his
emergency lights and drove to the 4200 block of Cameron
Street, where the suspect was last seen. Sergeant Joe Grisafi,
his supervisor, was there when he arrived.
    Thomas then let Leo out of the squad car on a thirty-foot
leash and attached a tracking harness to him. The tracking
harness alerted Leo that he was to start searching for a sus-
pect. Thomas ordered Leo to the ground and announced his
presence twice, alerting anyone in the general area that the
No. 15-1255                                                  3

Hammond Police canine unit was present and a dog would
be tracking the area. After Leo tracked the garage and back-
yard, he began barking by the pool where Alicea was hiding.
      B. Thomas’s Use of Force
    Thomas’s version of events is as follows: he approached
the pool with his weapon drawn, and Alicea was inside the
pool standing across from him, with his hands in his sweat-
shirt, staring straight ahead. Alicea did not respond to re-
peated requests to show Thomas his hands, and kept them
concealed. Thomas again asked him to show his hands as he
commanded Leo, with his leash still on, to get inside the pool.
Thomas then assisted Leo into the pool. He commanded Leo
to lie down, and after making a final request that Alicea show
his hands, he ordered Leo to bite and hold Alicea so he could
safely enter the pool to pat down and arrest Alicea.
    Alicea recounts the confrontation quite differently. He
says after Leo discovered him, Leo started barking as Thomas
appeared and asked Alicea to see his hands. Alicea recalls im-
mediately complying by standing and raising his hands,
palms out, at which point Thomas yelled, “You like to rob
houses, you f***ing punk?” Thomas then threw Leo into the
pool and commanded him to attack Alicea. Leo attacked Al-
icea for several minutes, latching onto his right arm with his
teeth as Alicea struggled to break free from his grip. Leo re-
fused to obey Thomas’s order to stop biting Alicea, and it took
several minutes for Thomas to remove Leo from Alicea’s arm.
Alicea was bleeding and screaming in pain from the bites.
      C. Alvarez’s Use of Force
   Officer Alejandro Alvarez was providing back-up to an-
other officer when he received a radio call that there was a
4                                                 No. 15-1255

reported burglary. Alvarez headed to Towle Avenue, where
he met Grisafi and Officer Fletcher, who was also with the
Hammond Police. After learning Alicea had been seen fleeing
through yards north of the burglary scene, the three drove in
that direction. Upon arriving at Cameron Street, Alvarez set a
perimeter around the area with Fletcher and Grisafi. He re-
ceived radio notification that Thomas had found the suspect
and had deployed his dog in the backyard. Alvarez went to
the backyard, where he saw Alicea standing in the pool, and
Thomas and Grisafi outside of the pool with Leo. Alicea was
bleeding, looked in pain, and was screaming that a dog had
bitten him and he needed medical help.
    Here again, the parties’ stories diverge. Alvarez says that
he asked Alicea to get out of the pool, and when Alicea re-
fused twice, Alvarez “helped him” by grabbing him between
the shoulders and back and pulling him up and out of the
pool. He then told Alicea he needed to pat him down for
weapons and asked him to put his hands on the pool and to
spread his legs. According to Alvarez, Alicea refused to coop-
erate, demanding medical attention instead. Finally, Alvarez
pushed Alicea to his knees and cuffed his hands behind his
back, while Alicea struggled to stand up. Alvarez then
pushed Alicea to his stomach, where he held him until the
paramedics arrived. During this time, Grisafi and Thomas
provided Alvarez with cover. At some point during the arrest,
Alicea told Alvarez he needed medical attention, that he was
on cocaine, and that he felt like he was going to have a heart
attack. Alvarez also testified that Alicea struggled to get up
onto his knees from his stomach as Alvarez patted him down
to search for weapons. Alvarez maintains that he never
kicked, punched, or stomped Alicea during this time period.
No. 15-1255                                                   5

    Alicea, on the other hand, recalls Thomas inside the pool
when Alvarez arrived, trying to extract his arm from Leo’s
teeth by punching Leo. When Thomas finally succeeded in re-
moving Leo from Alicea, Alicea recalls Alvarez grabbing Al-
icea by the collar, pulling him over the pool, and dragging
him onto the ground outside the pool. Alicea landed on his
face, and Alvarez pressed his knee into Alicea’s back, punched
his backside and ribs, and kicked and stomped on his head.
Alicea was then taken to the squad car, where he was hand-
cuffed. At the car, it was determined that he needed immedi-
ate medical attention and someone called an ambulance. Al-
icea admits he may have told both police and hospital person-
nel that he had used cocaine in order to explain why he
started running and to gain admission into the hospital’s car-
diac ward, where he believed he would receive better treat-
ment. However, Alicea says he did not use cocaine on the day
of the arrest.
   Due to Officer Alvarez’s stomping, kicking, and punching,
Alicea says he suffered lumps to the back of his head, bruising
on his ribs and back, and difficulty breathing after the arrest.
From Leo’s attack, he suffered ripped tendons and muscles,
which required surgery and caused permanent muscle dam-
age, pain, numbness, and scarring.
       D. District Court Proceedings
    Alicea brought federal and state law claims against the
City of Hammond, Thomas and Alvarez under 42 U.S.C.
§ 1983 and Indiana Code § 34-13-4-1, which governs indemni-
fication of government employees for civil rights violations.
The defendants filed for summary judgment, arguing that: (1)
Alicea’s indemnification claims against Hammond were not
6                                                    No. 15-1255

ripe for adjudication; (2) Sergeant Thomas’s decision to de-
ploy Leo was objectively reasonable; (3) Alvarez’s use of force
against Alicea was objectively reasonable; and (4) the defend-
ants were entitled to qualified immunity. The district court
granted summary judgment in favor of the defendants on all
of Alicea’s claims, and also granted the defendants qualified
immunity. Alicea filed a motion for reconsideration, which
the court denied. Alicea now appeals, seeking reversal of
summary judgment on his § 1983 claims.
                         II. ANALYSIS
   On appeal, Alicea argues that the district court erred by
granting Thomas’s and Alvarez’s motions for summary judg-
ment as to his § 1983 claims. He also argues that the district
court erred in granting the defendants qualified immunity.
We will discuss each issue in turn. We review the district
court’s decision granting summary judgment de novo and
construe all facts in favor of Alicea. See Miller v. Gonzalez, 761
F.3d 822, 827 (7th Cir. 2014).
    A. Summary Judgment Inappropriate for Excessive
       Force Claims
              1. Sergeant Thomas
   The district court found that all the facts drawn in Alicea’s
favor did not establish that Sergeant Thomas used excessive
force when he gave Leo the command to bite and hold Alicea.
The district court pointed to the fact that Alicea was a felony
burglary suspect in active flight, and Thomas was dealing
with an unknown threat. So, it held that Thomas’s use of ca-
nine force was reasonable in light of the knowledge he pos-
sessed at the time he made the attack command.
No. 15-1255                                                      7

    This type of § 1983 excessive force claim originates from
the Fourth Amendment’s protection against unreasonable sei-
zures. Graham v. Connor, 490 U.S. 386, 394 (1989). An officer’s
use of force is analyzed under the Fourth Amendment’s ob-
jective reasonableness standard, and “must be judged from
the perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight.” Id. at 396. A court
examines the defendant’s use of force in light of the following
factors: (1) the severity of the crime at issue; (2) whether the
suspect poses an immediate threat to the safety of officers or
others; and (3) whether the suspect is actively resisting arrest
or attempting to evade arrest by flight. Id.
     We have held that force is only reasonable when it is pro-
portional to the threat posed. If an officer’s threat perception
changes, so too should her force calculus. Cyrus v. Town of
Mukwonago, 624 F.3d 856, 863 (7th Cir. 2010) (finding that
while first taser shot is justified due to uncertainty of threat,
once suspect is on the ground and unarmed, subsequent taser
shots are unreasonable). In Miller v. Gonzalez, we held that sig-
nificant force is unreasonable after a suspect has stopped re-
sisting or evading arrest. 761 F.3d at 829 (7th Cir. 2014). In Mil-
ler, the suspect was in flight and then became trapped in an
enclosed area after jumping a fence. Id. at 824-25. Upon reach-
ing him, the officer ordered him to lie on the ground, spread
eagle, which he did. Id. at 825. The officer then jumped over
the fence and landed on the plaintiff, breaking his jaw. Id. at
825. We held that summary judgment was inappropriate be-
cause it was unreasonable for the officer to intentionally use
force after the suspect was subdued. Id. at 830. Similarly, in
Holmes v. Hoffman Estates, we held that a jury could find it ex-
cessive to knock the plaintiff’s head against a police vehicle if,
8                                                     No. 15-1255

as he contended, he was compliant with the officer’s orders
throughout the arrest. 511 F.3d 673, 686 (7th Cir. 2007).
    At the same time, we have concluded that under certain
circumstances, an officer is not required to take an apparent
surrender at face value. Johnson v. Scott, 576 F.3d 658, 660 (7th
Cir. 2009). In Johnson, we affirmed summary judgment where
a police officer, in hot pursuit of a fleeing suspect, released his
dog to assist the chase. Not more than one second from the
suspect throwing his hands up and saying “I give up,” the
dog bit and held him as the officer caught up to make the ar-
rest. The officer then struck the suspect to subdue him, be-
cause he interpreted the suspect’s struggle with the dog as re-
sistance. We found that the officer’s split second decision to
use force was reasonable to apprehend a suspect in active
flight because “the police are entitled to err on the side of cau-
tion when faced with an uncertain or threatening situation.”
Id. at 659.
    Here, defendants argue that even taking Alicea’s version
of events as true, Alicea’s prior flight cast doubt on the genu-
ineness of his surrender. Despite the fact that Alicea asserts he
immediately complied with Thomas’s orders to put his hands
in the air, they argue that Alicea still posed a threat because it
was possible he was concealing weapons or would attempt to
vault out of the pool the way that he vaulted in. Thomas ar-
gues that given the uncertain circumstances, deploying Leo
was the safest way to control both the flight and safety risks
he perceived as events unfolded, and so he acted reasonably
in giving Leo the command to bite and hold Alicea.
    We disagree. With respect to Thomas’s consideration of
Alicea’s prior flight, “[the] prohibition against significant
force against a subdued suspect applies notwithstanding a
No. 15-1255                                                      9

suspect’s previous behavior—including resisting arrest,
threatening officer safety, or potentially carrying a weapon.”
Miller, 761 F.3d at 829. Unlike the plaintiff in Johnson, Alicea
was not in active flight at the time he was discovered. Rather,
under his version of the facts, which we accept as true for
summary judgment purposes, he was standing still, arms
raised, inside of an empty above-ground pool, surrounded by
five foot walls. Also, the events took place in broad daylight,
so limited visibility did not impede Thomas’s efforts to carry
out the arrest when Leo signaled that he had discovered Al-
icea in the pool. Cf. Miller v. Clark Cnty., 340 F.3d 959, 965 (9th
Cir. 2003) (finding use of canine force reasonable where plain-
tiff refused to pull over and ultimately fled by foot into dark,
unfamiliar terrain). Significantly, Thomas had his gun drawn
and trained on Alicea the entire time he was facing the pool
and giving Alicea orders. If Alicea attempted flight, he would
need to get out of the pool first. The obstacle of vaulting out
of the pool would provide Thomas with ample time to dis-
charge his weapon or to command Leo to chase and hold Al-
icea. Moreover, Alicea gave no indication that he would flee.
He immediately complied with Thomas’s orders. While sur-
render is not always genuine, it should not be futile as a
means to de-escalate a confrontation with law enforcement.
The sole fact a suspect has resisted arrest before cannot justify
disregarding his surrender in deciding whether and how to
use force. See Miller, 761 F.3d at 829.
    Another fact supports our conclusion that summary judg-
ment was improper. Yelling “you like to rob houses, you
f***ing punk?” before commanding Leo to attack casts doubt
on Thomas’s assertion that he made a split-second safety cal-
culation. Thomas’s statement indicates that he had at least
10                                                 No. 15-1255

some time to assess the threat that Alicea posed before order-
ing the attack. The district court found the statement to be ir-
relevant because deploying Leo was ultimately reasonable,
given the circumstances. But if one infers from the statement
that rather than making a safety calculation, Thomas was act-
ing out of retaliation, then his decision to deploy Leo was not
reasonable at all. The statement “you like to rob houses, you
f***ing punk” could reflect, as Thomas contends, an “unre-
markable truism” that Alicea enjoyed robbing houses. See
Miller, 761 F.3d at 828. However, the statement equally lends
credence to Alicea’s argument that deploying Leo was an act
of retaliation instead of a reasonable means of controlling a
perceived threat. Deciding which inference is more believable
is the task of a jury. Id.
    Applying the Graham factors to Alicea’s account, we do not
find that Alicea, standing in broad daylight with his hands up
at gunpoint and enclosed by a five-foot pool, posed a suffi-
cient threat to Thomas to justify ordering Leo to attack and
hold him. The district court erred in holding it was reasonable
to command a dog to attack a suspect who had ceased flight,
was effectively trapped, and who immediately complied with
police orders.
              2. Officer Alvarez
    We see even less of a basis to grant summary judgment to
Officer Alvarez, taking all facts in a light most favorable to
Alicea. At the point at which Alvarez first saw Alicea, Alicea’s
arm was in the jaws of a seventy-two pound dog. Two other
officers were already at the scene. A reasonable officer would
not think that punching, kicking, and stomping on Alicea was
required to control the situation. It is true that Alicea was
screaming, but there is no dispute that he was crying for help.
No. 15-1255                                                       11

    The district court found that Alicea did not produce suffi-
cient evidence of the kicking, stomping and punching because
there was no medical documentation of injuries related to
such conduct. It found that Alicea’s affidavit detailing injuries
was insufficient to create a factual dispute, because the de-
fendants produced medical records which lacked any men-
tion of head injuries, and also because photographs taken in
the ambulance did not reveal any injuries.
    The district court engaged in improper weighing of evi-
dence at the summary judgment stage. It also mistakenly in-
serted an injury requirement into its excessive force analysis.
The defendants point to a series of decisions where we held
that the use of force that resulted in injuries was constitu-
tional. See, e.g., Smith v. Ball State, 295 F.3d 763 (7th Cir. 2002);
Padula v. Leimbach, 656 F.3d 595, 602–03 (7th Cir. 2011). How-
ever, the question before us is not whether it is permissible to
inflict injuries on a suspect who is resisting arrest. Rather, the
question is whether Alvarez used the degree of force which a
reasonable officer would believe was required to subdue the
threat.
    The defendants direct our attention to cases where officers
used force against suspects whom they perceived to be refus-
ing orders. In Smith v. Ball State, the plaintiff, suspected of
driving while intoxicated, was completely unresponsive, and
the defendants forcibly removed him from the driver’s seat of
his car. 295 F.3d at 766. An officer who arrived to the scene
misconstrued the situation as a struggle, and tackled the
plaintiff to the ground. Id at 767. We found that “a reasonable
officer who happened on the scene could reasonably miscon-
strue Smith’s unresponsiveness as resistance requiring the
minimal use of force.” Id. at 771. Similarly, in Padula v.
12                                                    No. 15-1255

Leimbach, the plaintiff was having a hypoglycemic episode
where he both refused to respond to police instructions and
displayed aggressive behavior. 656 F.3d at 598–99. The police
forced the plaintiff into a prone position. Id. We found in favor
of the officers, stating that “the Officers faced a fluid situation
… [and] appropriately increased their force in order to keep
the situation under control.” Id. at 604. In Dawson v. Brown, we
found that the defendant officer acted reasonably in tackling
a man to the ground when, on arriving at the scene where the
man’s son was being arrested, he reasonably perceived the
man to be interfering with his son’s arrest. 803 F.3d 829, 833
(7th Cir. 2015).
    In contrast, Officer Alvarez came upon Alicea when he
was already seriously injured. Alicea was agitated, to be sure,
but the source of his agitation was clear: he had just been at-
tacked by a dog, and needed medical attention. Alicea testi-
fied at his deposition that he was already face-down, on the
ground, when Alvarez began to punch, kick and stomp on
him. At this point, however loudly Alicea was screaming, un-
der his version of events, he simply did not present a threat
that justified kicking, stomping, and punching him. “Permit-
ting substantial escalation of force in response to passive non-
compliance would be incompatible with our excessive force
doctrine and would likely bring more injured citizens before
our courts.” Abbott v. Sangamon Cnty., 705 F.3d 706, 730 (7th
Cir. 2013) (citing Phillips v. Comty. Ins. Corp. 678 F.3d 513, 527
(7th Cir. 2012)).
    In sum, Alicea’s factual account creates a material dispute
as to whether Officer Alvarez used excessive force. Lack of
medical documentation of his injuries, while potentially rele-
No. 15-1255                                                     13

vant to Alicea’s credibility, is immaterial to the threshold ques-
tion of whether Officer Alvarez’s use of force was reasonable
when the facts are viewed and reasonable inferences are
drawn in Alicea’s favor.
   B. Grant of Qualified Immunity Improper
    Alicea further argues that the district court erred in grant-
ing qualified immunity to both officers. The doctrine of qual-
ified immunity protects government officials from liability
when their conduct does not violate clearly established statu-
tory or constitutional rights of which a reasonable person
would have known. McAllister v. Price, 615 F.3d 877, 881 (7th
Cir. 2010). The district court granted qualified immunity be-
cause it found that Alicea failed to demonstrate that either de-
fendant deprived him of his constitutional rights. It further
rejected the cases that Alicea provided to support his argu-
ment that the defendants’ actions violated clearly established
law.
    As explained above, we conclude that the evidence, taken
in a light most favorable to Alicea, would permit a reasonable
jury to find excessive force in violation of the Fourth Amend-
ment. So we turn to the question of whether Thomas’s and Al-
varez’s actions violated clearly established law.
    In determining whether a right is “clearly established,” we
take care to look at the right in a particularized sense, rather
than at a high level of generality. Roe v. Elyea, 631 F.3d 843, 858
(7th Cir. 2011). When available, controlling precedent from ei-
ther the Supreme Court or our circuit will guide our inquiry.
However, a case holding that the exact action in question is
unlawful is not necessary. Safford Unified Sch. Dist. No. 1 v. Red-
ding, 557 U.S. 364, 377–78 (2009). Even where there are notable
14                                                    No. 15-1255

factual distinctions, prior cases may give an officer reasonable
warning that his conduct is unlawful. Phillips v. Cmty. Ins.
Corp., 678 F.3d 513, 528 (citing Estate of Escobedo v. Bender, 600
F.3d, 770, 781 (7th Cir. 2010)).
    At the time of Alicea’s arrest, it was clearly established that
an officer may not use excessive force against an individual
during an arrest. Holmes v. Vill. of Hoffman Estates, 511 F.3d 673,
687 (7th Cir. 2007). It was also clearly established that using a
significant level of force on a non-resisting or a passively re-
sisting individual constitutes excessive force. Rambo v. Daley,
68 F.3d 203, 207 (7th Cir. 1995). Commanding a dog to attack
a suspect who is already complying with orders clearly vio-
lates the principles set forth in Holmes and Rambo. Punching,
stomping and kicking a suspect who is on the ground and se-
riously injured similarly violates clearly established law.
    There is a material dispute as to whether Alicea was resist-
ing arrest, both at the moment that Thomas commanded Leo
to attack him, and at the moment that Alvarez arrived at the
scene of the arrest and removed Alicea from the pool. There
is also a material dispute as to the level of force that Alvarez
used, described in detail above. “Because the facts are in hot
dispute, the officers cannot seek pretrial refuge behind a claim
of qualified immunity.” Dufour-Dowell v. Cogger, 152 F.3d 678,
680 (7th Cir. 1998). It was improper to grant qualified immun-
ity to Thomas and Alvarez prior to a jury determining
whether Alicea was, as he contends, fully complying with or-
ders before the defendants used force to arrest him.
No. 15-1255                                             15

                   III. CONCLUSION
    For the foregoing reasons, we REVERSE the grant of sum-
mary judgment and REMAND for proceedings consistent with
this opinion.
