                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 13-3423
MARLO MCDOWELL,
                                                  Plaintiff-Appellant,

                                 v.

VILLAGE OF LANSING, et al,
                                               Defendants-Appellees.
                     ____________________

         Appeal from the United States District Court for the
           Northern District of Illinois, Eastern Division.
            No. 1:12-cv-05025 — Amy J. St. Eve, Judge.
                     ____________________

     ARGUED APRIL 22, 2014 — DECIDED AUGUST 18, 2014
                     ____________________

   Before POSNER, WILLIAMS, and TINDER, Circuit Judges.
    TINDER, Circuit Judge. Marlo McDowell appeals the sum-
mary judgment dismissal of his suit against the Village of
Lansing and Officer Michael Rodriguez, in which he alleged,
inter alia, that Officer Rodriguez violated his substantive due
process rights by rendering him vulnerable to a blow to the
face by a third party. We hold that Officer Rodriguez’s con-
duct, even according to McDowell’s depiction of the record,
2                                                  No. 13-3423

was not sufficiently egregious to qualify as a constitutional
tort or to vitiate his state-law immunity.
                      I.     Background
   On summary judgment we view the facts in the light
most favorable to the nonmoving party. Williams v. City of
Chicago, 733 F.3d 749, 752 (7th Cir. 2013). Of course, Officer
Rodriguez disputes much of the account that follows, but
McDowell is entitled to every reasonable inference that sup-
ports his claims.
    McDowell alleges that, after working a night shift on
June 25, 2011, he met three friends at Bottoms Up, a local res-
taurant and bar located in unincorporated Cook County, Il-
linois. They stayed there for about a half hour, until the bar’s
4:00 a.m. closing time. McDowell and his companions then
exited the front door, but they were confronted by a group
of four or five other individuals, who were apparently look-
ing for trouble. (One of the few things we know about this
latter group is that one of them happened to be an off-duty
police officer.) The opposing sides quickly came to blows,
and the altercation spilled into the parking lot. McDowell
attempted to break up the fight. Eventually he retreated to
his car, only to see his adversaries attempt to vandalize it.
That is when McDowell told one of his companions to call
the police.
    Michael Rodriguez, an on-duty police officer for the Vil-
lage of Lansing, was dispatched to the scene. (Lansing is a
nearby suburb of Chicago that lies within Cook County.) Of-
ficer Rodriguez found McDowell running in circles around
parked cars, trying to get away from at least three men who
were chasing him. Rodriguez exited his squad car, ap-
proached McDowell with his Taser drawn and pointed at
No. 13-3423                                                 3

him, and ordered everyone to get on the ground. The chase
immediately stopped and everyone promptly lay down—
everyone that is, except one man named Morandi, who had
been one of McDowell’s antagonists in the fight.
    While McDowell lay prone ten feet in front of Officer
Rodriguez, looking up at him with his hands behind his
head, Morandi began to slowly walk towards McDowell.
When Morandi started his approach, he and McDowell were
about 15 to 20 feet apart. A witness on McDowell’s side of
the fight testified that he thought at the time that Morandi
“was about to do something.” Officer Rodriguez did not is-
sue a second warning for Morandi to stop and get on the
ground, nor did he point his Taser at him. Morandi kept
coming. About 15 seconds after McDowell had first lain
down, Morandi got within striking distance and kicked him
in the face.
    McDowell has described the kick as a strong blow with a
slow, deliberate wind-up, almost like a placekicker striking a
football. The force of the impact broke his jaw, which re-
quired surgery. That was the only reported injury he suf-
fered during the incident. McDowell further alleges that af-
ter the attack Officer Rodriguez failed to handcuff Morandi,
who simply sat down of his own volition. He also claims
that Officer Rodriguez did not request an ambulance for
him. In fact, he complains that, after officers from the Cook
County Sherriff’s Office arrived, he was handcuffed before
being transported to a hospital.
   McDowell sued Officer Rodriguez under 42 U.S.C. § 1983
for allegedly violating his substantive due process rights
under the Fourteenth Amendment. He included an Illinois
common law claim for willful and wanton conduct against
4                                                 No. 13-3423

both Officer Rodriguez and the Village of Lansing, and also
brought a state-law indemnification claim against the Vil-
lage. Following discovery, the district court dismissed
McDowell’s suit on summary judgment. The district court
held that, even under the facts that McDowell set forth, no
reasonable jury could find that “Officer Rodriguez’s conduct
was reckless and gratuitously endangered” McDowell.
Likewise, the district court granted summary judgment to
the Village on the state-law claims because “McDowell has
not set forth evidence creating a factual dispute that Officer
Rodriguez had deliberate intent to harm him.” Absent that
showing, McDowell could not overcome the immunity
granted Officer Rodriguez under Illinois’s Tort Immunity
Act. 745 Ill. Comp. Stat. 10/2–202 (immunizing law enforce-
ment unless their actions “constitute[] willful and wanton
conduct”). McDowell timely appealed.
                      II.    Discussion
    We review a district court’s decision to grant summary
judgment de novo, and like the district court we grant
McDowell every reasonable inference in his favor. Kvapil v.
Chippewa Cnty., Wis., 752 F.3d 708, 712 (7th Cir. 2014). We
agree that McDowell has failed to create a legitimate ques-
tion of material fact as to whether Officer Rodriguez violated
his Fourteenth Amendment rights or engaged in willful and
wanton conduct against him. The acts McDowell alleges are
simply not egregious enough to vindicate his legal claims.
Officer Rodriguez’s alleged actions and decisions amounted
to no more than mere negligence, if that.
    Officer Rodriguez disputes the merits of McDowell’s
claim and also presents a defense of qualified immunity. We
need not reach the qualified immunity defense however, be-
No. 13-3423                                                   5

cause resolving the case on the merits will be simple enough.
See Pearson v. Callahan, 555 U.S. 223, 236 (2009). McDowell’s
constitutional claim is straightforward: the government con-
strained his liberty and made him more vulnerable to attack,
thereby setting the stage for his injury. Officer Rodriguez
himself testified that he had “detained” McDowell before
Morandi kicked him.
    In pressing his substantive due process claim, McDowell
invokes the state-created danger doctrine. For a plaintiff to
succeed on a theory of state-created danger, (1) “the state, by
its affirmative acts must create or increase a danger” to him,
(2) “the failure on the part of the state to protect an individ-
ual from such a danger must be the proximate cause of [his]
injury,” and (3) “the state’s failure to protect [him] must
shock the conscience.” King ex rel. King v. E. St. Louis Sch.
Dist., 189, 496 F.3d 812, 818 (7th Cir. 2007). Deciding exactly
what qualifies as an “affirmative act” that “shock[s] the con-
science” has proven difficult, and we have recently attempt-
ed to simplify the governing standard. See Slade v. Bd. of Sch.
Dirs. of City of Milwaukee, 702 F.3d 1027, 1033 (7th Cir. 2012)
(“Shouldn’t it be enough to say that it violates the due pro-
cess clause for a government employee acting within the
scope of his employment to commit a reckless act that by
gratuitously endangering a person results in an injury to that
person?”). Regardless of the precise wording, the Supreme
Court has made it clear that mere negligence is not sufficient
to support a substantive due process claim. Cnty. of Sacra-
mento v. Lewis, 523 U.S. 833, 848–49 (1998). Nor is gross neg-
ligence. Archie v. City of Racine, 847 F.2d 1211, 1219–20 (7th
Cir. 1988) (en banc). Deliberate indifference to a person’s
welfare may be sufficient to give rise to a constitutional vio-
6                                                 No. 13-3423

lation, depending on the circumstances. Lewis, 523 U.S. at
851.
    McDowell has set forth a plausible case satisfying the
first two of the King requirements. It is an open question
whether McDowell would have been better off had Officer
Rodriguez never showed up, and McDowell were left to take
his chances with the men chasing him around the parking
lot. But given that he ended up with a broken jaw, a reason-
able jury might grant him the benefit of the doubt on that
question. More to the point, once Officer Rodriguez arrived
on the scene, he allegedly committed an affirmative act—
detaining McDowell while threatening people were around
him—that rendered him more vulnerable to Morandi’s kick.
According to McDowell’s version of events, Officer Rodri-
guez could have chosen a different course of action that like-
ly would have prevented his injury.
    However, nothing McDowell alleges approaches the lev-
el of egregious conduct necessary to violate the substantive
guarantees of Fourteenth Amendment. Officer Rodriguez
arrived on scene alone; he had no partner or backup to help
him. The incident occurred at night. Officer Rodriguez was
significantly outnumbered by the four belligerents that he
saw, and he did not know if others were involved. He did
not know which of the men were hostile and which were
victims. He drew his Taser in case he had to use non-lethal
force, but that weapon is not particularly suited for crowd
control. Although three of the men had obeyed the officer’s
warning and gotten down on the ground, they were not re-
strained in any way. McDowell was the closest person to Of-
ficer Rodriguez, and it therefore makes sense that he would
occupy the bulk of his attention. Morandi did not make any
No. 13-3423                                                7

threatening statements or gestures as he slowly walked to-
ward McDowell.
    In light of those circumstances, we conclude that Officer
Rodriguez did not disregard a known or obvious risk so
much as he made a difficult decision that balanced legiti-
mate competing dangers, both to himself and the men he de-
tained. Indeed, it is not clear what Officer Rodriguez should
have done differently to avoid McDowell’s injury. Certainly,
he might have paid more attention to Morandi, and issued
another warning for him to stop (assuming McDowell is cor-
rect that no second warning was issued). But that would
have afforded other suspects the opportunity to get up while
the officer was preoccupied, and in any event it likely would
not have made a difference. Once Morandi disobeyed his
first command, simply repeating the order might actually
have undermined Officer Rodriguez’s authority. He could
have tased Morandi, but that might have exposed him to at-
tack from the other suspects. Physically positioning himself
between Morandi and McDowell would have been a particu-
larly bad idea, because he then would necessarily be turned
away from one (or both) of them. And of course, encourag-
ing McDowell to flee or defend himself would have been ab-
surdly irresponsible. Officer Rodriguez had only a matter of
seconds to decide among these and many other options.
Even if he chose poorly—and we express no opinion on that
point—his snap judgment did not rise to the level of a con-
stitutional tort.
   The time frame involved is particularly important when
judges scrutinize law enforcement decisions resulting in in-
jury. The Supreme Court has imposed an exacting standard
on plaintiffs seeking to cast a swift, emergency police deci-
8                                                   No. 13-3423

sion as an infringement of substantive rights. “[W]hen un-
foreseen circumstances demand an officer’s instant judg-
ment, even precipitate recklessness fails to inch close enough
to harmful purpose to spark the shock” of conscience neces-
sary for a substantive due process violation. Lewis, 523 U.S.
at 853. The Court in Lewis therefore held that “high-speed
chases with no intent to harm suspects physically or to
worsen their legal plight do not give rise to liability under
the Fourteenth Amendment.” Id. at 854. Although this case
does not involve a high-speed chase, this court has expand-
ed the principle to encompass other emergency situations. In
Carter v. Simpson, 328 F.3d 948, 952 (7th Cir. 2003), we held
that “in emergency situations (such as high-speed chases) …
conduct ‘shocks the conscience’ only if there was intent to
cause harm.” Carter involved a vehicle collision as an officer
responded to an emergency call. In Schaefer v. Goch, 153 F.3d
793, 798 (7th Cir. 1998), we applied Lewis in the context of a
shooting in the line of duty. Id. (“The sine qua non of liability
in cases analogous to high-speed chases, therefore, is a pur-
pose to cause harm.”) (citation and quotation marks omit-
ted). Other circuits have reached the same conclusion. See
Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010)
(“[W]here a law enforcement officer makes a snap judgment
because of an escalating situation, his conduct may only be
found to shock the conscience if he acts with a purpose to
harm unrelated to legitimate law enforcement objectives.”).
Likewise, it is undisputed that Officer Rodriguez faced a po-
tentially violent situation with only seconds to act. Whatever
the appropriate standard—intent, deliberate indifference,
recklessness, or some other formulation—it is clear that Of-
ficer Rodriguez did not violate McDowell’s constitutional
rights in making such a difficult decision on the spot.
No. 13-3423                                                   9

    McDowell has asserted some additional allegations re-
garding the officer’s conduct after he was injured. He claims
that Morandi was not handcuffed but that he was, and that
Officer Rodriguez never called for an ambulance. However,
there is no evidence that this alleged conduct aggravated
McDowell’s injury or worsened the situation in any way.
Moreover, nothing in the record suggests that Officer Rodri-
guez knew or should have known how badly McDowell was
injured, or that he required surgery. Other law enforcement
officers and emergency responders eventually arrived at the
scene, so the manner in which McDowell was transported to
the hospital does not shed much light on Officer Rodriguez’s
state of mind in the moments before the kick. These addi-
tional allegations do not help McDowell.
    By the same token, McDowell’s state-law claims must fail
as well. In Moran v. City of Chicago, 676 N.E.2d 1316 (Ill. App.
Ct. 1997), the Illinois Appellate Court dismissed a suit in
which a participant in an altercation injured another long
after the police arrived. The court found that, before the
plaintiff sustained any injury, “the [officers] stopped the al-
tercation, separated the combatants, and attempted to ques-
tion them. At the time the plaintiff was injured, the defend-
ants were investigating the matter. These actions do not
show indifference or willful and wanton conduct.” Id. at
1323. By comparison, Officer Rodriguez was alone and had
no chance to investigate the incident before Morandi struck.
There is no evidence that he wanted McDowell to be injured
or was indifferent to what happened to him. Indeed, Officer
Rodriguez arrived on scene, drew his Taser, and warned
everyone to get on the ground in order to protect McDowell
and others. “Wilful and wanton conduct, as contemplated in
[the Tort Immunity Act], consists of more than mere inad-
10                                                No. 13-3423

vertence, incompetence, or unskillfulness.” Geimer v. Chi.
Park Dist. 650 N.E.2d 585, 592 (Ill. 1995). McDowell has failed
to allege anything more than that. Because Officer Rodri-
guez’s actions were in no way willful or wanton, he and the
Village enjoy immunity from McDowell’s state-law claim.
745 Ill. Comp. Stat. 10/2–202.
                      III.   Conclusion
    We are not competent to decide whether Officer Rodri-
guez’s actions represent good police work, and even if we
were, we lack the factual record to make such a determina-
tion. We are confident, however, that his conduct did not vi-
olate McDowell’s constitutional rights, and was not willful
or wanton. The decision of the district court is AFFIRMED.
