                                 UNPUBLISHED ORDER
                              Not to be cited per Circuit Rule 53



           United States Court of Appeals
                               For the Seventh Circuit
                               Chicago, Illinois 60604

                             Argued September 13, 2005
                             Decided November 29, 2005


                                         Before


                    Hon. WILLIAM J. BAUER, Circuit Judge
                    Hon. DANIEL A. MANION, Circuit Judge
                    Hon. ANN CLAIRE WILLIAMS, Circuit Judge


No. 05-1050


MICHAEL W. STRICKLAND,
                                                  Appeal from the United States District
              Plaintiff-Appellant,                Court for the Northern District
                                                  of Indiana, Hammond Division.
      v.
                                                  No. 03 C 26
JEREMY SHOTTS,
                                                 Allen Sharp,
                                                Judge.
              Defendant-Appellee.



                                       ORDER
       Michael Strickland filed this lawsuit against Jeremy Shotts, a police officer
with the sheriff’s department for Elkhart County, Indiana, claiming that Shotts’s
use of a K-9 unit police dog to subdue him was objectively unreasonable and
constituted excessive force in violation of the Fourth Amendment. The district
court granted summary judgment in favor of Shotts, ruling that there was no
genuine issue as to any material fact. We agree and affirm.
No. 05-1050                                                                        2



                                I. BACKGROUND
       The parties do not dispute the following facts: On April 7, 2001, police
officers from the Elkhart County Sheriff’s Department and the Elkhart City Police
Department attempted to stop a car driven by Strickland.1 Despite officers’
attempts to pull him over, Strickland continued driving and a car chase ensued. At
some point in the chase, Officer Shotts and his police dog, Rexo, joined in the
pursuit.
       The car chase ended when Strickland stopped his car, reached into the
passenger compartment, and fled on foot through a residential neighborhood.
Strickland then entered a private residence where officers eventually found him
hiding in a bathroom.2 Three police officers attempted to subdue Strickland, who
continued to resist by kicking and thrashing his legs at the officers. Because of
Strickland’s thrashing and Shotts’s concern that Strickland may have been armed,
he released Rexo and instructed him to bite Strickland’s leg. Strickland sustained
multiple dog-bite lacerations and was taken to the local hospital for treatment.


                                   II. ANALYSIS
        We review a district court’s grant of summary judgment de novo, construing
all facts in the light most favorable to the nonmoving party. Lawrence v. Kenosha
County, 391 F.3d 837, 841 (7th Cir. 2004). Summary judgment is properly granted
when "the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and the moving party is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
      An arrestee’s claim for excessive force is analyzed under the Fourth
Amendment’s objective reasonableness standard. Graham v. Connor, 490 U.S. 386,
388 (1989). In determining whether an officer’s use of force is reasonable, courts
must balance the nature and quality of the intrusion upon the individual’s Fourth
Amendment rights against the countervailing government interests at stake.


1
      Strickland pled guilty in state court proceedings to driving while intoxicated,
driving with a suspended license, and resisting law enforcement when he was
apprehended. Strickland does not dispute the lawfulness of his arrest when the
alleged excessive force occurred.
2
      The record is unclear as to whether Strickland knew the occupant of the
residence into which he fled. What is clear is that Strickland did not reside in the
home, and that officers did not know the nature of his relationship to the residence.
No. 05-1050                                                                           3

Johnson v. LaRabida Children’s Hosp., 372 F.3d 894, 898 (7th Cir. 2004). We judge
reasonableness from the perspective of whether the officer’s actions were objectively
reasonable in light of the facts and circumstances confronting the officer at the
time. Id. When assessing whether the amount of police force was reasonable, we
look to circumstances indicating (1) the severity of the suspected crime, (2) whether
the suspect posed an immediate threat to the officer on the scene or others, and (3)
whether the suspect was actively resisting or attempting to evade arrest. Id.
        Using this test, we find that Strickland’s evidence is not sufficient to survive
summary judgment. First, when Shotts joined the pursuit, Strickland was leading
police officers in a car chase, which ended in a residential neighborhood. The
record indicates that Strickland was under the influence of cannabis, cocaine,
alcohol, and opiates at the time of his arrest. It is not disputed that he was driving
while intoxicated, which is a serious offense that poses an immediate threat to the
officer on the scene and others nearby. Second, Strickland essentially
acknowledged that, during his arrest, he posed an immediate threat to the officers.
At oral argument, Strickland’s counsel conceded that Strickland continued to kick
and thrash his legs at the officers when Officer Shotts released Rexo.3 In addition,
Strickland does not dispute Shotts’s contention that he reached into the passenger
compartment, perhaps to obtain a weapon, just before leaving his car. Finally,
Strickland’s counsel also admitted that Strickland actively resisted arrest when he
fled by car and foot and when he hid in a private residence. Given these
concessions, we conclude that there is no genuine issue of material fact as to
whether Officer Shotts acted reasonably when he used Rexo to subdue Strickland.
Given the danger Strickland posed to others in the residential neighborhood, his
attempts to evade police by car and by foot, his continued kicking and thrashing
during his arrest, and Shotts’s reasonable belief that Strickland was armed, the
officer’s use of the police dog was not objectively unreasonable.


                                 III. CONCLUSION
     The district court’s grant of summary judgment in favor of the defendant is
AFFIRMED.




3
       On the basis of the record alone, there may have been a material factual
dispute as to whether Strickland had stopped resisting when Officer Shotts
released Rexo, which generally would preclude us from affirming the grant of
summary judgment. At oral argument, however, Strickland’s counsel conceded that
Strickland was still resisting arrest when Officer Shotts released Rexo, stating “I
don't think there's any dispute about the facts in this case.”
