                            In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-3317

A NTONIO M. JOHNSON,
                                              Plaintiff-Appellant,
                                v.

S TEVEN S COTT,
                                             Defendant-Appellee.


        Appeal from the United States District Court for the
         Northern District of Indiana, Fort Wayne Division.
      No. 1:07-cv-155-RBC—Roger B. Cosbey, Magistrate Judge.



       A RGUED A PRIL 7, 2009—D ECIDED A UGUST 7, 2009




  Before P OSNER, R IPPLE, and W OOD , Circuit Judges.
  W OOD , Circuit Judge. When a suspect waves the
white flag of surrender, the use of force in connection
with an arrest may, as an objective matter, become unnec-
essary and inappropriate. Not all surrenders, however,
are genuine, and the police are entitled to err on the side
of caution when faced with an uncertain or threatening
situation. This case involves Antonio M. Johnson, a
suspect in a shooting who fled police first by car and then
2                                             No. 08-3317

on foot. He made a last-second surrender when Sergeant
Steven Scott and Archer, Scott’s German Shepherd
police dog, were closing in on him. Archer bit Johnson’s
left arm, and Scott struck Johnson in the process of
handcuffing him.
  Johnson filed suit under 42 U.S.C. § 1983 alleging that
Scott used excessive force in violation of the Fourth
Amendment during the course of the arrest. Scott filed a
motion for summary judgment, which the district court
granted. Johnson now appeals that decision to this court,
and we affirm.


                            I
  At 1:30 a.m. on January 19, 2006, Johnson arrived at the
Paradise Lounge in Marion, Indiana. He smoked some
marijuana there and then went on to the dance floor.
His entertainment was soon interrupted by John “Toady”
Drake, the owner of the Lounge and Johnson’s uncle;
Drake called Johnson over and informed him that there
was a person at the Lounge who intended to shoot him.
Drake apparently knew that there was an active warrant
out for Johnson’s arrest, and so he wanted to warn Johnson
that he was calling the police. Although Johnson had no
valid driver’s license, he drove off in his friend’s white
Chevrolet Caprice.
  At about the same time, Sergeant Scott responded to a
dispatch concerning a suspected shooting at the Paradise
Lounge. Scott then heard a further transmission that a
white Chevrolet Caprice had just left the Lounge’s parking
No. 08-3317                                               3

lot. Scott soon encountered the Caprice and turned on
his emergency lights. Johnson’s deposition testimony
says all that one needs to know about his response to Scott:
    Q: Okay. When the . . . police car, that was operated
    by Captain [sic] Scott, turned on the . . . emergency
    lights, did you know that . . . those lights were in-
    tended for you?
    A: Yes sir.
    Q: Okay. So, when you turned and . . . went the
    other way, you knew that you were evading the
    police trying to stop you?
    A: Yes sir.
During his flight, Johnson ignored a stop sign and ex-
ceeded the speed limit, despite icy conditions on the
roads. When he encountered a police roadblock, he
stopped his car and fled on foot.
  Scott jumped out of his squad car to pursue Johnson
and released Archer to do the same. Johnson darted into a
residential yard and hurtled over a waist-high chain
link fence, but then he encountered a five-foot-tall
wooden fence that blocked his progress. It was at this
point that he turned around, put his arms in the air,
and said “I give up.”
  Scott and Archer were only six to eight feet behind
Johnson when he uttered those words. Archer grabbed
Johnson’s left arm, and Scott knocked Johnson to the
ground with his forearm. Johnson was struggling to
get away from Archer’s biting, but Scott interpreted this
4                                               No. 08-3317

as resistance, and so he struck Johnson several times to
subdue him. When Archer moved to bite Johnson’s
upper left leg, Scott was able to get a grip on Johnson’s
left arm and successfully handcuff him. No more than
five or ten seconds later, Scott ordered Archer off Johnson,
and the dog complied. There is no evidence that Scott used
any further force after that point. (Earlier, Johnson had
alleged in an affidavit that Archer began biting his left
arm again after he was handcuffed, but the district court
granted a motion to strike this portion of the affidavit as
inconsistent with Johnson’s prior deposition testimony.
Johnson has not complained about that ruling on appeal.)
Johnson was charged with various crimes and pleaded
guilty to two Class D felonies: possession of under three
grams of cocaine and resisting law enforcement with a
vehicle.
  Johnson filed suit against Scott under 42 U.S.C. § 1983,
alleging excessive force during the arrest in violation of
the Fourth Amendment. The district court granted sum-
mary judgment to Scott, finding that the force Scott
used was objectively reasonable as a matter of law.
Johnson now appeals that decision to this court.


                             II
  This court reviews a district court’s grant of summary
judgment de novo. Sound of Music Co. v. 3M, 477 F.3d 910,
914 (7th Cir. 2007). The question whether the use of force
during an arrest is proper under the Fourth Amendment
depends on the objective reasonableness of the officer’s
actions, judged on the basis of the conditions the officer
No. 08-3317                                                5

faced. Graham v. Connor, 490 U.S. 386, 396 (1989). In order
to assess objective reasonableness, the court must con-
sider all the circumstances, including notably “[1] the
severity of the crime at issue, [2] whether the suspect
poses an immediate threat to the safety of the officers or
others, and [3] whether he is actively resisting arrest or
attempting to evade arrest by flight.” Id.
  The Graham factors weigh heavily in favor of Scott. First,
there were two serious crimes at issue: a shooting and
reckless flight from the police in a vehicle. Second, given
the nature of the first of these crimes, Scott reasonably
believed that Johnson might be armed. Finally, it is clear
from Johnson’s actions and deposition testimony that he
was attempting to evade arrest.
   Johnson insists on appeal that it was unreasonable for
Scott to use Archer or strike Johnson after he had put
his hands in the air and said “I give up.” It is well estab-
lished that a police officer may not continue to use force
against a suspect who is subdued and complying with
the officer’s orders. See, e.g., Dye v. Wargo, 253 F.3d 296,
298 (7th Cir. 2001); Priester v. Riviera Beach, 208 F.3d 919,
927 (11th Cir. 2000). But that principle depends critically
on the fact that the suspect is indeed subdued. Here,
Scott had no idea how Johnson was going to behave once
he was cornered. No law that we know of required Scott
to take Johnson’s apparent surrender at face value, a split
second after Johnson stopped running. Until he encoun-
tered a fence that was too high for him to jump over,
Johnson had used every method at his disposal to flee
from the police. The surrender also did not establish that
6                                                   No. 08-3317

Johnson was unarmed. A reasonable officer could think
that the use of the dog was necessary to help control
Johnson; otherwise, Johnson might have had the time
he needed to retrieve and use a weapon. Finally, it is
worth noting that it could not have been more than
one second between Johnson’s surrender and the use of
force by Scott, given the distance between Archer and
Johnson at the time of surrender. In short, Scott’s use of
force—in the form of Archer—to subdue Johnson was
objectively reasonable, given the uncertainties in the
situation that faced him.
   In so holding, we do not mean to minimize the unpleas-
antness of having a German Shepherd clamp onto one’s
arm or leg. This does not mean, however, that the prac-
tice of deploying trained dogs to bite and hold suspects
is unconstitutional per se; the situation might warrant the
use of a dog that has been trained and that is under
the control of the officer, as Archer was. See, e.g., id. at 960-
61 (suspect fled into “dense, dark, wooded terrain” and
was warned to surrender or the police dog would be
sent to search for him). Nor are we saying that any use
of a biting dog is automatically reasonable. See, e.g.,
Vathekan v. Prince George’s County, 154 F.3d 173, 176 (4th
Cir. 1998) (police failed to give a warning before re-
leasing a police dog into an occupied room with instruc-
tions to bite anyone it came across). We acknowledge
that there was no verbal warning in this case. Johnson
did not argue, however, that such a warning would
have made a difference, and on these facts, it is easy to
imagine why. As the district court pointed out, “Scott
had no real opportunity to [warn] given Johnson’s head-
No. 08-3317                                                7

long flight and surprising, last-second surrender.” Johnson
v. Scott, 2008 U.S. Dist. LEXIS 62235, at *20 (N.D. Ind.
Aug. 14, 2008).


                             III
    In addition to arguing that he should be granted
summary judgment because his conduct was reasonable,
Scott also asserts that he is entitled to qualified immunity.
We need not reach that issue, as we conclude that the
district court was correct in its assessment of Scott’s use
of force. Given the nature of the crimes at issue,
Johnson’s reckless and determined flight, and the last-
second nature of his surrender, we conclude that Scott
acted reasonably in his use of Archer to detain Johnson
while Scott completed the arrest.
  We A FFIRM the judgment of the district court.




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