                             In the

United States Court of Appeals
               For the Seventh Circuit

No. 12-3881

JASON F INDLAY,
                                                Plaintiff-Appellee,
                                v.

JONATHAN L ENDERMON,
                                            Defendant-Appellant.


        Appeal from the United States District Court for the
    Northern District of Indiana, Hammond Division at Lafayette.
          No. 4:10-CV-98—Theresa L. Springmann, Judge.


       A RGUED M AY 22, 2013—D ECIDED JUNE 14, 2013




  Before F LAUM, R OVNER, and SYKES, Circuit Judges.
  F LAUM, Circuit Judge. In September 2009, Deputy
Sheriff Jonathan Lendermon found himself in the middle
of a long-running family squabble between Jason Findlay
and Findlay’s uncle, Clark Howey. Neighbors as well as
family, the two lived next door to each other. Howey
suspected Findlay of trespass and vandalism, giving rise
to the bickering that ensnared Deputy Lendermon.
When Findlay found a surveillance camera set up at
the property line, he called the Sheriff’s Office to file an
2                                            No. 12-3881

abandoned property report, and Lendermon responded
to the call. With video running, Findlay ultimately
made comments suggesting he had, in fact, trespassed,
and Lendermon decided to confiscate as evidence the
memory chip containing these statements. At some
point, the memory chip separated from the camera and
fell to the floor. Findlay says Lendermon tackled him
as he reached to pick up the chip. Lendermon says he
simply grabbed Findlay’s arm to prevent him from
picking up the chip before Lendermon could seize it. A
lawsuit followed, in which Findlay alleged the excessive
use of force. The district court denied Lendermon’s
motion for summary judgment on the excessive force
claim. We reverse. Because Findlay has not carried his
burden of showing the violation of a clearly established
right, Lendermon is entitled to qualified immunity.


                     I. Background
A. Factual Background
   Findlay and Howey are neighbors, living on adjacent
lots. Howey owns his property. Findlay lives with his
87-year-old grandmother, Elizabeth, on his mother’s
land. On September 25, 2009, Findlay found a camcorder
near the property line and called the Sheriff’s Office to
file an abandoned property report. Lendermon responded
to the call.
  On his way to Findlay’s, Lendermon spoke with
Aaron Lorton—a police officer with the City of Lafayette
and also Howey’s son-in-law—who admitted ownership
No. 12-3881                                            3

of the camcorder. When Lendermon arrived at the prop-
erty, he spoke first with Howey. Howey told the deputy
that he and Lorton had placed the camera because he
suspected Findlay of trespassing onto and vandalizing
his property.
  Lendermon spoke with Findlay next, who recorded his
interactions with Lendermon on the camcorder (telling
Lendermon he had had some “bad experiences” with
the police in the past). Findlay showed Lendermon
where he had found the camera, explained his under-
standing of the property lines (he believed the
camera was placed on his mother’s property), and told
Lendermon that Howey had warned him against tres-
passing. The camcorder captured all of these state-
ments. After that conversation ended, Lendermon went
to his patrol car while Findlay returned to his house.
  From his cruiser, Lendermon radioed the dispatch
officer who, after checking the Geographic Information
System website for Tippecanoe County, confirmed that
the camcorder sat on Howey’s property, not Findlay’s.
Lendermon and the dispatch officer realized the eviden-
tiary value of the video recording—in which Findlay
admits his uncle’s warnings about trespass and ex-
plains precisely from where he recovered the camera—
and agreed to seize the camcorder as evidence.
  As a result, Lendermon returned to the house, where
Findlay invited him in. Upon entry, he joined Findlay and
Elizabeth at the kitchen table. Still recording, the cam-
corder sat at the center of the kitchen table. Lendermon
told Findlay he was confiscating the camcorder, but
4                                               No. 12-3881

Findlay pulled it away and took the memory chip
out. Ultimately, the chip ended up on the kitchen
floor underneath the washing machine. Lendermon says
Findlay threw the chip there; Findlay says he dropped it.
  In any event, Findlay reached to pick up the chip. Here
again, the parties tell conflicting accounts of what hap-
pened. According to Findlay, Lendermon suddenly
leapt up, grabbed him by the shoulders, and tackled him
to the ground. Findlay’s chest hit the floor, and he
landed on a bottle of laundry detergent. Findlay re-
ported pain and, on the advice of his attorney, con-
sulted with a doctor a few days after the incident. The
doctor found no evidence of any injury. The grand-
mother corroborated this account in her deposition.
  Unsurprisingly, Lendermon reports a different story,
saying he simply grabbed Findlay’s arm to prevent
him from reaching and/or destroying the memory chip.
Lendermon acknowledged in his deposition, though,
that Findlay did not do or say anything suggesting
intent to destroy the chip.
  Lendermon ultimately recovered the chip, placed
Findlay in handcuffs, and arrested him for resisting law
enforcement and obstruction of justice. The prosecutor
dropped the charges.


B. Procedural Background
  Findlay filed a three-count complaint under 42 U.S.C.
§ 1983 alleging claims of excessive force, false arrest, and
wrongful seizure. The parties cross-moved for summary
No. 12-3881                                                5

judgment with Findlay requesting judgment on the
false arrest and wrongful seizure claims. Lendermon
moved for summary judgment on all counts and raised
a qualified immunity defense.
  Finding no issues of material fact on the wrongful
seizure claim and concluding that the plain view and
exigency exceptions justified seizing the memory chip
and video camera, the court granted Lendermon’s
motion for summary judgment. Also finding no issues of
material fact on the false arrest claim, the court found
Lendermon had probable cause to arrest Findlay for
resisting law enforcement, Ind. Code § 35-44.1-3-1(a),
obstruction of justice, Ind. Code § 35-44.1-2-2(a), refusal
to aid an officer, Ind. Code § 35-44.1-3-3, and trespass,
Ind. Code § 35-43-2-2(a). Thus, the court also granted
summary judgment for Lendermon on the false arrest
claim without considering whether Lendermon had
probable cause to arrest Findlay for conversion. Ind. Code
§ 35-43-4-3(a).1
  The district court denied Lendermon summary judg-
ment on the excessive force claim, though, finding
a genuine dispute of material fact in the differing ac-
counts of the force Lendermon applied to Findlay when
Findlay reached for the fallen memory chip. Assuming



1
  In this interlocutory appeal, we consider only the district
court’s denial of Lendermon’s qualified immunity defense.
Thus, at the current juncture, we express no opinion on the
district court’s entry of summary judgment for Lendermon on
the wrongful-seizure and false-arrest claims.
6                                               No. 12-3881

the truth of Findlay’s account and applying the
three-factor analysis from Graham v. Connor, 490 U.S.
386 (1989), the district court concluded that a rea-
sonable jury could find Lendermon used excessive force
in tackling Findlay. Finding a constitutional violation
that was clearly established at the time of the conduct,
the court denied Lendermon’s motion for summary
judgment raising the qualified immunity defense.
Lendermon appealed.


                      II. Discussion
   Qualified immunity protects public servants from
liability for reasonable mistakes made while performing
their public duties. See Denius v. Dunlap, 209 F.3d 944,
950 (7th Cir. 2000). Defeating qualified immunity
requires (1) conduct violating the plaintiff’s constitu-
tional or statutory rights that is (2) clearly established at
the time of the violation such that a “reasonable official
would understand that what he is doing violates that
right.” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)). Pearson v. Callahan, 555 U.S. 223, 242-43 (2009),
encouraged courts to begin with the substantive con-
stitutional violation, but we remain free to consider
first whether the right is clearly established if doing
so will conserve judicial resources. We find it economical
to do so here and thus consider only whether Findlay
has shown that the alleged constitutional violation—
tackling a suspect under the circumstances presented in
No. 12-3881                                                        7

this case—was clearly established.2 In doing so, we
apply de novo review, Humphries v. Milwaukee Cnty.,
702 F.3d 1003, 1006 (7th Cir. 2012), and draw all factual
inferences in favor of the non-moving party, McGrath
v. Gillis, 44 F.3d 567, 569 (7th Cir. 1995).3
   Even when a public official’s actions have violated a
plaintiff’s constitutional rights, the official can escape
liability if the right was not clearly established at the
time of the violation. Denius, 209 F.3d at 950. Importantly,
the plaintiff must show that the right is clearly estab-
lished such that “the contours of the right are suf-
ficiently clear that a reasonable official would under-
stand that what he is doing violates that right.” Id.
(internal punctuation omitted) (quoting Anderson, 483
U.S. at 640); e.g., Humphries, 702 F.3d at 1006. He
can carry this burden either by identifying a “closely
analogous case that established a right to be free from
the type of force the police officers used on him” or by


2
  We express no opinion on whether Lendermon’s actions
(as alleged by Findlay) constitute excessive force under
Graham v. Connor. Likewise, we leave unaddressed Lendermon’s
argument that force motivated by a desire to preserve evi-
dence bears on Graham’s determination of reasonableness.
3
   Findlay argues Lendermon has waived the qualified
immunity defense. Lendermon’s answer, however, asserted
“immun[ity] from suit as to the alleged actions.” Moreover, he
squarely raised qualified immunity in support of his motion
for summary judgment. That “supplie[s] adequate notice to
the plaintiffs” that qualified immunity is at issue. Hernandez
v. Cook Cnty. Sheriff’s Office, 634 F.3d 906, 913-14 (7th Cir. 2011).
8                                             No. 12-3881

showing “that the force was so plainly excessive that, as
an objective matter, the police officers would have been
on notice that they were violating the Fourth Amend-
ment.” Chelios v. Heavener, 520 F.3d 678, 691 (7th Cir.
2008) (quoting Clash v. Beatty, 77 F.3d 1045, 1048 (7th
Cir. 1996)). Findlay has not carried this burden.
  In opposing Lendermon’s qualified immunity defense
before the district court, Findlay attempted to apply
the clearly established law requirement to the facts of
his case in only one sentence: “In the instant case, it is
clear that the conduct of Defendant Lenderman (and
Defendant Huber, in authorizing in advance the conduct
of Lendermon) violated the clearly established constitu-
tional rights of the Plaintiff.” That statement neither
identifies a closely analogous case nor adequately ex-
plains how Lendermon’s force was “so plainly exces-
sive” as to defeat a qualified immunity defense.
  Findlay’s analysis of this issue on appeal is likewise
deficient. He first argues that the objective reason-
ableness standard “mirrors the objective reasonableness
test for qualified immunity, thus creating a single
analysis for both constitutionality and entitlement to
qualified immunity.” Saucier v. Katz, however, squarely
rejected this argument. 533 U.S. 194, 200-07 (2001).
As Saucier explained,
    [o]fficers can have reasonable, but mistaken, beliefs
    as to the facts establishing the existence of probable
    cause or exigent circumstances, for example, and in
    those situations courts will not hold that they have
    violated the Constitution. Yet, even if a court were
No. 12-3881                                               9

    to hold that the officer violated the Fourth Amend-
    ment by conducting an unreasonable, warrantless
    search, Anderson still operates to grant officers immu-
    nity for reasonable mistakes as to the legality of
    their actions. The same analysis is applicable in ex-
    cessive force cases, where in addition to the defer-
    ence officers receive on the underlying constitu-
    tional claim, qualified immunity can apply in the
    event the mistaken belief was reasonable.
Id. at 206. In short, “while the substantive constitutional
standard protects officers’ reasonable factual mistakes,
qualified immunity protects them from liability where
they reasonably misjudge the legal standard.” Catlin v.
City of Wheaton, 574 F.3d 361, 369 (7th Cir. 2009). The
substantive constitutional test, then, does not collapse
into the qualified immunity test as Findlay suggests.
  Next, in an effort to identify a “closely analogous
case,” Findlay points only to Gray v. City of Hammond,
693 F. Supp. 2d 823 (N.D. Ind. 2010). To begin,
Lendermon’s altercation with Findlay occurred in 2009,
pre-dating Gray. Therefore, Gray itself could not have—at
the time of the violation—clearly established the rights
Findlay asserts. And neither does Gray identify a pre-
2009 case clearly establishing those rights. Instead, Gray
notes only that the “right to be free from unreasonable
seizure was a clearly established right.” Id. at 845. But
qualified immunity requires the plaintiff to produce a
case “clearly establish[ing] [the right] in a particularized
sense, rather than in an abstract or general sense.”
Abbott v. Sangamon Cnty., 705 F.3d 706, 731 (7th Cir. 2013).
10                                           No. 12-3881

That broad statement is not sufficiently particularized
to the facts Findlay alleges and does not satisfy
Findlay’s burden of showing a violation of clearly estab-
lished law.
   Findlay offers nothing more to carry his burden of
showing a clearly established right. Because he has
neither identified a sufficiently analogous case nor ade-
quately explained how Lendermon’s actions were so
plainly excessive that any reasonable officer would
know it violated the constitution, he cannot defeat
Lendermon’s qualified immunity defense. Cf. Soriano v.
Town of Cicero, No. 10-3352, 2013 WL 1296780, at *2 (7th
Cir. Apr. 2, 2013) (non-precedential) (noting plain-
tiff’s burden to show clearly established right and
finding that burden unsatisfied where defendant had
not responded to qualified immunity defense in briefing).
In reaching this conclusion, we do not suggest that
no “plainly excessive” argument could ever be made
from the facts as Findlay presents them. But the burden
to make this showing rests squarely on Findlay. He
has not done so and therefore cannot prevail.


                    IV. Conclusion
  Because Findlay has not identified any sufficiently
analogous case clearly establishing the constitutional
right he accuses Lendermon of violating, and because
Findlay offers no adequate explanation for how
Lendermon used force “so plainly excessive” that it
proved clearly established notwithstanding the absence
of such a case, we R EVERSE the district court’s denial
No. 12-3881                                       11

of Lendermon’s motion for summary judgment on quali-
fied immunity grounds.




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