Thom Howell v. Shawn Smith
Filed opinion of the court by Judge Ripple. The district court erred in denying summary judgment for Officer Smith. We therefore reverse the judgment of the district court and remand the case for further proceedings consistent with this decision. Officer Smith may recover the costs of this appeal. Diane P. Wood, Chief Judge; Kenneth F. Ripple, Circuit Judge and Ann Claire Williams, Circuit Judge. [6832562-1]  [16-1988]
United States Court of Appeals
For the Seventh Circuit
THOM D. HOWELL,
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:13‐cv‐00045‐JTM‐PRC — James T. Moody, Judge.
ARGUED SEPTEMBER 29, 2016 — DECIDED APRIL 10, 2017
Before WOOD, Chief Judge, and RIPPLE and WILLIAMS, Cir‐
RIPPLE, Circuit Judge. On May 15, 2011, Officer Shawn
Smith of the Highland, Indiana Police Department received a
call from his dispatcher, alerting him to a road rage incident
involving the discharge of a firearm. He later came upon a car
matching the description and conducted a “high‐risk traffic
stop.”1 Officer Smith placed Mr. Howell, the occupant of the
car, in handcuffs and detained him until other officers
brought the alleged victim to the scene.2 The victim positively
identified Mr. Howell and his vehicle as involved in the road
rage incident. Nonetheless, the officers found no weapon and
decided to release Mr. Howell. The whole episode lasted ap‐
proximately thirty minutes.
Mr. Howell initially brought this action in state court, al‐
leging that the officers’ treatment had aggravated a preexist‐
ing shoulder condition, which became worse with time and
required multiple surgeries. Following the transfer of the pro‐
ceedings from state to federal district court,3 Officer Smith
moved for summary judgment on the ground of qualified im‐
munity. The district court denied the motion, and Officer
Smith filed this interlocutory appeal.4
We respectfully disagree with the district court’s decision
to deny Officer Smith’s immunity claim. In our view, Officer
Smith’s decision to place Mr. Howell, then implicated in a se‐
rious crime involving the discharge of a weapon, in handcuffs
and to keep him in handcuffs until satisfied that he was not a
1 R.22‐1 at 38.
2 We refer to the victim as an “alleged victim” because it is unclear
whether the altercation occurred at all. Appellee’s Br. 14. For ease of read‐
ing, however, we will refer only to the “victim.”
3 The district court’s jurisdiction was premised on 28 U.S.C. §§ 1331 and
4 Our jurisdiction is premised on the collateral order doctrine. A district
court’s determination that a defendant is not entitled to qualified immun‐
ity is a final order for the purposes of 28 U.S.C. § 1291. Mitchell v. Forsyth,
472 U.S. 511, 530 (1985).
threat did not violate the Fourth Amendment. Therefore, un‐
der the doctrine of qualified immunity, the federal count in
the complaint must be dismissed. Accordingly, we reverse the
judgment of the district court and remand the case for further
Mr. Howell, a Navy veteran and high school teacher in his
early sixties, has had multiple shoulder surgeries, including a
complete replacement of his right shoulder. Prior to the en‐
counter at issue in this appeal, he was able to stretch his right
arm, to write on a blackboard, and to lift up to five or six
pounds with his right arm. His left shoulder was in better con‐
dition; he usually was able to place his left arm behind his
The stop at issue here took place on May 15, 2011. While
Officer Smith was on routine patrol in the Town of Highland,
Indiana, his dispatcher advised him of a reported road rage
incident. According to the dispatcher, the victim had reported
that the driver of a tan Trailblazer ahead of him on the road
had fired at him while the two vehicles were traveling north‐
bound on Kennedy Avenue in Griffith, Indiana. The dis‐
patcher described the suspect driver, alone in the vehicle, as a
white male with facial hair and stated that the vehicle had an
older Indiana blue license plate. Officer Smith later encoun‐
tered a vehicle and driver matching this description. He acti‐
vated his patrol car’s overhead lights and stopped the car.
Officer Smith treated this stop as a “high‐risk traffic stop”:
He ordered Mr. Howell to step out of his vehicle, to place his
hands on his head, to walk backwards toward him, and then
to kneel on the ground.5 Mr. Howell complied with all orders.
While Mr. Howell was kneeling, Officer Smith handcuffed his
hands behind his back. He then asked Mr. Howell whether he
had been involved in a road rage incident; Mr. Howell denied
any involvement. Officer Smith placed Mr. Howell in the back
of the squad car.
There is some disagreement as to what, if anything,
Mr. Howell said as he was placed in handcuffs. According to
Officer Smith, Mr. Howell “did not complain of any pain in
his shoulders or arms nor did he complain of any pain, sore‐
ness or injuries to his shoulders at any time.”6 Mr. Howell, on
the other hand, maintains that he told the officer that “I can’t
stretch my arm behind my back that way”7 and that he “had
just had surgery with [his] shoulder.”8 He additionally con‐
tends that he later told an officer, other than Officer Smith,
that he was “sore”9 or in “pain,”10 although he is inconsistent
on the exact language that he used and unclear as to when this
5 R.22‐1 at 38.
7 Id. at 16.
8 Id. at 18.
9 Id. at 27, 30.
10 R.23‐3 at 2.
conversation took place, other than stating that it was with a
Griffith police officer.11
Officer Smith radioed Sergeant Banasiak, who was with
the victim at a nearby shopping center or strip mall. He asked
whether the stopped vehicle was the one from which a shot
had been fired. The victim “replied that it sounded like it.”12
When Sergeant Banasiak and the victim arrived at the scene
shortly thereafter, the latter confirmed the identification.
Officer Smith searched Mr. Howell and did not find a
weapon. Mr. Howell also provided consent to search his ve‐
hicle, but a search failed to locate a firearm. Throughout this
time, the victim remained adamant about his identification
and advised both Sergeant Banasiak and Officer Smith that
Mr. Howell was the individual who had shot at him in Grif‐
fith. Attempting to explain the absence of a firearm, the victim
suggested that Mr. Howell must have thrown his weapon out
of his vehicle.
Nonetheless, once the officers ascertained all of these facts,
which involved removing Mr. Howell from the car several
times, Sargent Dawes of the Griffith Police Department, in
whose jurisdiction the offense would have taken place, de‐
cided to release Mr. Howell.
The entire detention lasted approximately thirty minutes.
At no point did Officer Smith feel threatened in any way.
Mr. Howell maintains that, since his detention, he has suf‐
fered mental anguish and has undergone multiple shoulder‐
11 R.22‐1 at 30.
12 Id. at 38.
Mr. Howell brought this action, alleging a “violation of his
State and Federal Constitutional Rights, as provided by the
Indiana and Federal Constitutions, Statutes and case law.”13
Relying on state law causes of action, Mr. Howell also sought
damages for battery, false arrest, false imprisonment, inten‐
tional infliction of emotional distress, and negligent infliction
of emotional distress, among other claims.
Because the complaint contained a count alleging a federal
question, all the defendants14 removed the action to the
United States District Court for the Northern District of Indi‐
ana. See 28 U.S.C. § 1441(a). Soon thereafter, the defendants
moved for summary judgment, and Mr. Howell abandoned
all claims other than the federal excessive force claim against
Officer Smith and three of the state claims.15
On March 31, 2016, the district court denied the motion for
summary judgment. It concluded that Officer Smith’s
knowledge of Mr. Howell’s injury precluded the defense of
qualified immunity and noted that there was “a question of
13 R.1 at 2.
14 At the time that the district court ruled on the summary judgment mo‐
tion, only Officer Smith and the Town of Highland remained as defend‐
ants. R.27 at 1–2 (explaining the remaining claims).
15 As explained by the district court in its summary judgment order, the
“only claims that remain[ed] for resolution on defendants’ motion [were]
Howell’s claims against defendant Officer Smith for excessive force, and
against both Smith and the Town of Highland for battery, intentional in‐
fliction of emotional distress (‘IIED’), and negligent infliction of emotional
distress (‘NIED’).” Id.
fact as to whether the force used was excessive.”16 Officer
Smith thereafter timely filed an interlocutory appeal.
The standards that govern our review of the district
court’s decision are well settled. We review de novo the dis‐
trict court’s denial of summary judgment on qualified im‐
munity grounds, asking whether viewing the facts in the light
most favorable to the plaintiff, the defendants nonetheless
were entitled to qualified immunity as a matter of law. Estate
of Escobedo v. Bender, 600 F.3d 770, 778 (7th Cir. 2010). Quali‐
fied immunity shields federal and state officials from money
damages unless a plaintiff demonstrates that the official vio‐
lated a statutory or constitutional right and that the right was
“clearly established” at the time of the challenged conduct.
Ashcroft v. al‐Kidd, 563 U.S. 731, 735 (2011). A right is clearly
established when existing precedent has “placed the statutory
or constitutional question beyond debate.” Reichle v. Howards,
566 U.S. 658, 664 (2012). To meet his burden on the second
prong, a plaintiff must “show either a reasonably analogous
case that has both articulated the right at issue and applied it
to a factual circumstance similar to the one at hand or that the
violation was so obvious that a reasonable person necessarily
would have recognized it as a violation of the law.” Chan v.
Wodnicki, 123 F.3d 1005, 1008 (7th Cir. 1997). This requirement
does not mean that a plaintiff must be able to point to a case
“on all fours” with the defendant officer’s misconduct. See
16 Id. at 3.
Hope v. Pelzer, 536 U.S. 730, 741 (2002). But there must be set‐
tled authority that would cause him to understand the illegal‐
ity of the action. See Mullenix v. Luna, 136 S. Ct. 305, 308 (2015).
We may rest our decision on either prong of the qualified
immunity doctrine. See al‐Kidd, 563 U.S. at 735. Here, in the
hope that our decision will provide meaningful additional
guidance to police officers operating in the field, we address
the first prong and determine whether Mr. Howell suffered a
deprivation of a federal constitutional right.
Mr. Howell correctly bases his argument on the Fourth
Amendment’s reasonableness standard.17 That standard gov‐
erns whether law enforcement officers employed excessive
force during an arrest, an investigatory stop, or any other type
of seizure. Stainback v. Dixon, 569 F.3d 767, 771 (7th Cir. 2009).
In evaluating the reasonableness of an officer’s actions, we
must evaluate the totality of the circumstances, Payne v.
Pauley, 337 F.3d 767, 778 (7th Cir. 2003), and undertake a
“careful balancing of the nature and quality of the intrusion
on the individual’s Fourth Amendment interests against the
countervailing governmental interests at stake,” Stainback,
569 F.3d at 772 (citing Graham v. Connor, 490 U.S. 386, 396
(1989)). The nature and extent of the force that may be used
depends upon the circumstances surrounding an arrest, in‐
cluding “the severity of the crime at issue, whether the sus‐
pect poses an immediate threat to the safety of the officers or
others, and whether he is actively resisting arrest or attempt‐
ing to evade arrest by flight.” Id. In assessing the facts, we
must recognize that officers often need to make split‐second
17 Mr. Howell makes no argument concerning his allegations under the
judgments based on rapidly developing events. Holmes v. Vill.
of Hoffman Estates, 511 F.3d 673, 685 (7th Cir. 2007). We meas‐
ure the officer’s conduct against a standard of “objective rea‐
sonableness,” that is “the perspective of a reasonable officer
on the scene, rather than with the 20/20 vision of hindsight.”
Graham, 490 U.S. at 392, 396–97.
The parties agree that Officer Smith had reasonable suspi‐
cion to detain Mr. Howell. Their dispute centers on the of‐
ficer’s use of handcuffs to restrain him during the detention.
Here, we believe that the general principles are clear. We have
held that “[a] person has the right to be free from an officer’s
knowing use of handcuffs in a way that would inflict unnec‐
essary pain or injury, if that person presents little or no risk of
flight or threat of injury.” Rooni v. Biser, 742 F.3d 737, 742 (7th
Cir. 2014) (emphasis added). We also have recognized a lim‐
ited set of circumstances in which handcuffs are appropriate
without converting a Terry stop into a full arrest. Chief among
them is officer safety and the possibility of the presence of a
weapon. See, e.g., United States v. Smith, 697 F.3d 625, 631–32
(7th Cir. 2012) (explaining that a suspected bank robber was
left with one agent while others chased accomplices); United
States v. Bullock, 632 F.3d 1004, 1016 (7th Cir. 2011) (noting that
extra caution was warranted because of probable presence of
drugs and possibility of violent behavior); United States v.
Shoals, 478 F.3d 850, 853 (7th Cir. 2007) (per curiam) (approv‐
ing use of drawn weapons and handcuffs where suspect
matched description of late‐night 911 report of individual en‐
gaging in gun fire, was wearing a coat indoors, and attempted
to hide from police); United States v. Stewart, 388 F.3d 1079,
1085 (7th Cir. 2004) (approving use of handcuffs where de‐
fendant matched description of armed perpetrator of recent
bank robbery and behaved suspiciously).
The district court focused on our decision in Rabin v. Flynn,
725 F.3d 628 (7th Cir. 2013). In that case, after a police officer
observed Rabin carrying a holstered firearm in public, the po‐
lice stopped and handcuffed him. Rabin was a licensed pri‐
vate investigator with a permit to carry a handgun. When
asked, he provided the police with his license and was at all
times cooperative. His detention was prolonged because the
officers could not confirm immediately the authenticity of the
tendered license. Rabin remained, at all times, cooperative.
While in custody, he told one of the officers that he had a “bad
neck” and a “bad hand in the past,” and that the cuffs were
too tight. Id. at 631. Noting that “Rabin was already hand‐
cuffed,” we held that “no reasonable officer who was aware
of Rabin’s medical conditions would have believed that exac‐
erbating Rabin’s medical problems (i.e., by keeping the hand‐
cuffs as tight as they were) was necessary to ensure safety,
and that doing so would be permissible under clearly estab‐
lished law.” Id. at 636.
The Rabin decision does not control this case. The absence
of a firearm on Mr. Howell’s person was not the only danger
that Officer Smith had to consider. The officer had received a
report of an armed road rage incident involving the discharge
of a firearm. Residual anger and, indeed, irrationality often
accompany such episodes, and Officer Smith had to protect
himself and the public from such a contingency. The show‐up
encounter between the victim and Mr. Howell at the scene of
the stop also was a relevant factor for Officer Smith to con‐
sider in determining how to secure Mr. Howell. Ensuring the
security of the alleged perpetrator and the safety of the victim
in such a circumstance is an obvious consideration in an of‐
ficer’s decision making. Indeed, during this show‐up, the vic‐
tim affirmatively identified Mr. Howell as the perpetrator to
the police, thus justifying a more prolonged investigation
while the officers thoroughly searched Mr. Howell’s vehicle
for a firearm.
The threat presented by the present situation was far more
substantial and concrete than in Rabin. Moreover, Officer
Smith had minimal and nonspecific information about the ex‐
tent to which the handcuffs were causing distress and injury.
Although the record is replete with evidence of Mr. Howell’s
earlier difficulties with his shoulder and of his difficulties af‐
ter this encounter, we must focus on what Officer Smith knew
at the time of the incident. During the arrest, and while placed
in handcuffs, Mr. Howell at most told Officer Smith that he
recently had surgery that limited the mobility of his arm; he
never stated explicitly that he was in pain or actively suffering
in any way.18 See Sow v. Fortville Police Dep’t., 636 F.3d 293,
18 R.22‐1 at 27, 30. Mr. Howell’s exact description of the relevant events
has shifted over the course of the litigation. In his deposition, Mr. Howell
stated that he told a Griffith officer that he was “sore.” Id. at 30. In a post‐
deposition affidavit, however, Mr. Howell asserts for the first time that he
told Officer Smith that he was in “pain.” R.23‐3 at 2. Although a “party
may attempt to clarify or augment (but not contradict) prior deposition
testimony through affidavits,” Simmons v. Chicago Bd. of Educ., 289 F.3d
488, 492 (7th Cir. 2002), “[c]ourts generally ignore attempts to patch‐up
potentially damaging deposition testimony with a supplemental affidavit
unless the party offers a suitable explanation—e.g., confusion, mistake or
lapse in memory—for the discrepancy,” Maldonado v. U.S. Bank, 186 F.3d
759, 769 (7th Cir. 1999). Additionally, this court “does not allow [a party]
to contradict deposition testimony with later‐filed contradictory affida‐
vits” in order to create “‘sham’ issues of fact with affidavits that contradict
their prior depositions.” Ineichen v. Ameritech, 410 F.3d 956, 963 (7th Cir.
Mr. Howell contends that his affidavit simply clarifies his deposition
testimony, and thus may be considered, whereas Officer Smith submits
that the two are in direct conflict, representing an improper effort to create
a dispute of material fact that would preclude summary judgement. A re‐
view of both Mr. Howell’s deposition and affidavit reveals a level of con‐
tradiction that requires that we disregard the latter for purposes of this
During his deposition, Mr. Howell testified as follows:
Q: You told the officer, the Griffith officer, that your
shoulder was sore?
Q: Did you give any other description to the officer of any
pain that you were feeling in your right shoulder?
A: Just the fact that it was sore.
Q: Did you say anything to any of the other officers about
any pain in your shoulder other than that one comment
that you made to the Griffith officer that your shoulder
A: And the original officer that handcuffed me.
Q: Well, you never told them that you were in pain. You
told them that you had surgery and your arm is not sup‐
posed to be put behind your back; correct?
Q: So you never told them that you were in pain at any
time; is that correct?
R.22‐1 at 30. Mr. Howell’s affidavit, on the other hand, tells a different
story. In particular, it states that “[o]n at least two occasions I was taken
out of the vehicle and them [sic] placed back in the vehicle.” R.23‐3 at 1.
“During that time I was in pain and informed the officers of said pain.” Id.
303–04 (7th Cir. 2011) (dismissing claim where plaintiff com‐
plained once but presented no evidence that he elaborated on
the pain to the defendant); Tibbs v. City of Chicago, 469 F.3d
661, 666 (7th Cir. 2006) (dismissing excessive force claim
where plaintiff complained the handcuffs were on too tight
but did not indicate the degree of pain). We further note that
Mr. Howell also concedes that Officer Smith was not overly
forceful when placing him in handcuffs.
The crux of the matter is that, from Officer Smith’s perspec‐
tive, he was dealing with an individual suspected of commit‐
ting a felony involving the discharge of a firearm on the pub‐
lic way. See Smith, 697 F.3d at 632 (“Similarly, it was entirely
reasonable for Agent Stover to use handcuffs to securely de‐
tain Smith during the brief ten minutes when Agent Stover
was left alone with Smith on a public street.”). Although “[a]
person has the right to be free from an officer’s knowing use
of handcuffs in a way that would inflict unnecessary pain or
injury,” that right is tempered by the attendant “risk of flight
or threat of injury.” Rooni, 742 F.3d at 742 (emphasis added).
Here, although Officer Smith had a duty to consider the infor‐
mation that Mr. Howell had given him about his condition,
at 2. Although both the deposition and the affidavit reference multiple in‐
teractions with the police, in which some level of discomfort was ex‐
pressed, the affidavit expressly states that he told the officers that he was
in “pain” and the deposition expressly disclaims any such statement. As a
result, the affidavit is in direct conflict with Mr. Howell’s sworn deposi‐
tion testimony, and any conflicting portions must be ignored for purposes
of this appeal. Specifically, we must disregard any statement in which
Mr. Howell claims to have notified the police of the fact he was in “pain”
during his detention. Moreover, because his affidavit went beyond simply
clarifying his deposition testimony, any conflict between the two does not
create an issue of material fact that would preclude summary judgment.
see Stainback, 569 F.3d at 773, he had very little information to
evaluate. That information, moreover, clearly did not out‐
weigh the very concrete information about the crime and the
circumstances under which it was allegedly committed. Of‐
ficer Smith’s decision did not violate the Fourth Amendment.
The district court erred in denying summary judgment for
Officer Smith. We therefore reverse the judgment of the dis‐
trict court and remand the case for further proceedings con‐
sistent with this decision. Officer Smith may recover the costs
of this appeal.
REVERSED AND REMANDED
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