DOUGLAS A. BELL and TAMMY BELL v. MIKE IRWIN and STEVEN CROW

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2262
D OUGLAS A. B ELL and T AMMY B ELL ,
Plaintiffs-Appellants,
v.
M IKE I RWIN and S TEVEN C ROW ,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 00-cv-4078-JPG—J. Phil Gilbert, Judge.
____________
A RGUED J ANUARY 29, 2003—D ECIDED F EBRUARY 25, 2003
____________
Before C OFFEY , E ASTERBROOK , and K ANNE , Circuit
Judges.
E ASTERBROOK , Circuit Judge. After a bout of drinking,
Douglas Bell threatened his wife Tammy, who phoned the
police for protection. By the time an officer arrived, the
couple had made up and asked to be left alone. Forty
minutes later, however, one of the neighbors called to
tell the police that Tammy had been knocking on doors
in search of safety. An officer quickly returned and found
Tammy down the street; she asked for help and said
that Douglas had “torn up” the couple’s home. Douglas
refused to admit the officer (or to come out) for discussion.
The officer called the local police chief and initiated a

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2 No. 02-2262
background check, which revealed that Douglas had a
history of arrests for domestic violence, unlawful use of
weapons, obstruction of justice, and drunk driving; Tammy
told the officers that Douglas had attempted suicide.
The police chief could not get Douglas to come out but
did see through a window that he was holding several
knives and a meat cleaver. Douglas drove one of the
knives into a wall near the front door and threw several
others into the yard in the direction of the police. He
told the chief that he would kill any officer who entered
and then kill himself; Douglas insisted that he had noth-
ing left to live for, did not care about anyone else’s life
either, and would come out only “feet first.”
Local police then called for help from the state police,
which dispatched Lt. Steven Crow and Sgt. Mike Irwin.
Negotiations continued to be unavailing, even after
Douglas’s father arrived and implored him to cooperate.
Crow authorized Irwin to disable Douglas by firing bean-
bag rounds from a shotgun if that proved to be necessary.
Bean-bag rounds are designed to stun and inflict blunt
trauma, knocking a person down but not penetrating
the skin or damaging internal organs more severely than
a kick or punch would. The record does not show just
how dangerous bean-bag rounds can be, so it is hard to
know whether they should be classified as “deadly force,”
see Omdahl v. Lindholm, 170 F.3d 730, 733 (7th Cir. 1999),
but they are less lethal than bullets or buckshot. (With
defendants’ acquiescence, the district court treated them
as a species of deadly force; we need not decide whether
this is correct.)
Douglas opened the door and threatened to blow up his
home using propane and kerosene in tanks immediately
outside. Irwin saw Douglas lean toward a tank with
what appeared to be a cigarette lighter; in response Irwin
fired at Douglas’s arm and torso. The first three rounds
staggered but did not stop Douglas; a fourth brought him

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No. 02-2262 3
down. Douglas was a moving target, and one round hit
him in the head. Officers took him to the hospital; he
arrived unconscious and was treated for injuries to the
head and upper left arm. While Douglas was at the hospi-
tal, an Illinois State Police Crime Scene Investigator
discovered a lighter on the ground outside the door of the
home. One cannot be sure that it was in Douglas’s hand
when Irwin fired, but no other explanation for its pres-
ence has been adduced.
In this suit under 42 U.S.C. §1983, Douglas contends
that he experienced a memory loss as a result of the bean-
bag impacts; Tammy seeks compensation for loss of consor-
tium. The Bells’ theory is that Irwin violated the fourth
amendment by using force that was excessive under the
circumstances, and that Crow is culpable for failing to
prevent Irwin from doing this. The constitutional inquiry
is objective. See Graham v. Connor, 490 U.S. 386, 397
(1989); Lester v. Chicago, 830 F.2d 706 (7th Cir. 1987). And
it is implemented “from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of
hindsight.” Graham, 490 U.S. at 396. Police may use even
deadly force if “the suspect poses a threat of serious physi-
cal harm, either to the officer or to others”. Tennessee
v. Garner, 471 U.S. 1, 11 (1985). “[I]f the suspect threatens
the officer with a weapon” (ibid.) that risk has been estab-
lished. See also Sherrod v. Berry, 856 F.2d 802 (7th Cir.
1988) (en banc); Ford v. Childers, 855 F.2d 1271 (7th Cir.
1988) (en banc). Applying these principles to the evi-
dence in this record, the district court granted summary
judgment to the defendants.
Douglas acknowledges that he was armed with knives,
drove Tammy out of their home, refused to emerge or ad-
mit police for discussion, held a knife to his throat while
threatening suicide, and made a move toward the pro-
pane tank. He denies making explicit threats to kill the
officers or ignite the propane—but he concedes that the

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4 No. 02-2262
combination of drink and concussion has dimmed his
memory of what occurred that evening. The district judge
thought that, even resolving all factual disputes in plain-
tiffs’ favor, what remains is enough to show that it was
reasonable to use force to end the confrontation and
avoid any risk that Douglas would injure himself or
others. Like the district judge, we think that Douglas
should have thanked rather than sued the officers. True,
he suffered injury at their hands, but in his depressed
and irrational state, aggravated by liquor, he might have
done himself or others greater injury had they not inter-
vened. It is easy in retrospect to say that officers should
have waited, or should have used some other maneu-
ver—these propositions cannot be falsified—but Graham
makes it clear that the fourth amendment does not re-
quire second-guessing if a reasonable officer making
decisions under uncertainty and the press of time would
have perceived a need to act. The risks of intervention,
unfortunately realized when one round hit Douglas in the
head, still seem less than the risks of doing nothing.
See also, e.g., Pena v. Leombruni, 200 F.3d 1031 (7th Cir.
1999).
The Bells’ principal theme on appeal is that, however
these things may appear to the police and federal judges,
only a jury is empowered to determine whether the officers’
conduct was reasonable. Plaintiffs seek to equate con-
stitutional-tort litigation to common-law tort litigation, in
which negligence is a matter of degree to be resolved by
a jury even if all of the facts have been stipulated, pro-
vided that a reasonable argument may be made both for
or against the view that the defendant was negligent.
Here is where the phrase “constitutional tort” may mis-
lead, for the Constitution is not a form of tort law. It
creates legal rules. Permitting the jury freedom to deter-
mine for itself whether particular conduct was reason-
able within the meaning of the fourth amendment would

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No. 02-2262 5
introduce the ex post reassessment that Graham decried.
Under the Constitution, the right question is how things
appeared to objectively reasonable officers at the time of
the events, not how they appear in the courtroom to a
cross-section of the civilian community. Ornelas v. United
States, 517 U.S. 690 (1996), holds that whether a search
or seizure (other than one authorized by a warrant) is
supported by probable cause is a question of law for
the court of appeals, so that even the district judge’s
view receives no deference. The Justices distinguished
the rules for ascertaining historical facts from the role of
the appellate tribunal in applying principles of constitu-
tional law to those facts. See also Miller v. Fenton, 474 U.S.
104 (1985) (same allocation for the question whether a
confession is involuntary).
When material facts are in dispute, then the case must
go to a jury, whether the argument is that the police
acted unreasonably because they lacked probable cause,
or that they acted unreasonably because they responded
overzealously and with too little concern for safety. But
when material facts (or enough of them to justify the
conduct objectively) are undisputed, then there would be
nothing for a jury to do except second-guess the officers,
which Graham held must be prevented. Since Graham
we have regularly treated the reasonableness of force as
a legal issue, rather than an analog of civil negligence.
See, e.g., Smith v. Ball State University, 295 F.3d 763, 770-
71 (7th Cir. 2002); Smith v. Chicago, 242 F.3d 737, 743-44
(7th Cir. 2001); Hebron v. Touhy, 18 F.3d 421 (7th Cir.
1994); Titran v. Ackman, 893 F.2d 145 (7th Cir. 1990). This
appears to be the accepted rule; the Bells do not cite, and
we could not find, any post-Graham appellate opinion
holding that the reasonableness of using force is a jury
question even if no factual disputes require resolution. To
the extent that Llaguno v. Mingey, 763 F.2d 1560, 1565 (7th
Cir. 1985) (en banc), treated probable cause and deriva-

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6 No. 02-2262
tively the reasonableness of police officers’ conduct as
matters indistinguishable from negligence in ordinary tort
suits, it has been superseded by Graham and Ornelas,
which stress that reasonableness is analyzed objectively,
and as a matter of law. Judges rather than juries determine
what limits the Constitution places on official conduct.
To say that police officers have acted within the bounds
that the Constitution sets is not necessarily to say that
they have acted wisely. States may choose to afford addi-
tional protections of personal safety and require the po-
lice to wait even when federal law permits them to act.
If states create negligence-like rules, then by virtue of
the seventh amendment they will be implemented by
juries if the litigation occurs in federal court. When this
case began, it included a state-law claim under the sup-
plemental jurisdiction. But that claim has been aban-
doned, and there is no material dispute of fact that calls
for a trial of the federal theory.
A FFIRMED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-25-03

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