Victor R. McNAIR and Tré K. McNair, Plaintiffs-Appellants, v. Sean COFFEY, Defendant-Appellee, 279 F.3d 463

EASTERBROOK, Circuit Judge. Frazell v. Flanigan, 102 F.3d 877, 886-87 (7th Cir.1996), held that, “once a jury has determined under the Fourth Amendment that the officer’s conduct was objectively unreasonable, that conclusion necessarily resolves for immunity purposes whether a reasonable officer could have believed that his conduct was lawful.” Our initial decision in this case followed Frazell and concluded that a jury verdict in plaintiffs’ favor on their claim that defendant used excessive force in arresting them precluded any possibility of qualified immunity for the arresting officer. McNair v.

Coffey, 234 F.3d 352 (7th Cir.2000). After Sausier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), held that an officer may be immune from damages even if the court has found him hable under an entirely objective approach applying a previously announced rule of law, the Supreme Court remanded this case to us for further consideration. 533 U.S. 925, 121 S.Ct. 2545, 150 L.Ed.2d 713 (2001). Plaintiffs contend that we should maintain our position despite that decision, but we conclude that it requires a change in outcome as well as analysis.

Officer Coffey had probable cause to believe that the McNair brothers had not paid parking tickets, and he activated his cruiser’s lights to pull them over. An arrest on this basis was proper. See Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Coffey also suspected them of drug trafficking, but of this he had nothing more than a suspicion that turned out to be unfounded. Despite seeing the cruiser’s flashing lights, the McNairs did not pull over for some time.

At trial they contended that they had delayed because they wanted to get out of an unsavory neighborhood before surrendering, but this reason is not relevant; people ordered to stop (on probable cause to arrest) must halt immediately; they cannot make their own decisions about when and where they will surrender. See Dye v. Wargo, 253 F.3d 296 (7th Cir.2001); see also Sherrod v. Berry, 856 F.2d 802, 805 (7th Cir.1988) (en banc). Because it was dark (after 5 p.m. on December 20), the neighborhood posed risks, and the McNairs did not immediately stop, Coffey called for backup.

Given the risks entailed even in ordinary traffic stops, see Uniform Crime Reports: Law Enforcement Personnel Table 18 (2000) (94 officers killed in traffic stops between 1990 and 1998), this was a sensible decision. When the McNairs finally stopped, they were surrounded by eight squad cars and told to get out with their hands up; many officers leveled weapons at the McNairs. But they were not roughed up; matters were handled peaceably.

Victor McNair (the driver) was issued citations for operating a vehicle with a suspended registration and for failing to stop when directed; both McNairs were released within an hour. The jury determined that Officer Coffey violated the fourth amendment by arranging for a show of force that was needlessly frightening; each plaintiff was awarded $5,000 to compensate for the shock and indignity of the situation.

Neither in the district court nor on appeal did Coffey take issue with the jury’s verdict; this uncontested finding, coupled with the holding of Frazell, led to the conclusion that Coffey could not receive qualified immunity. According to Saucier, the first question whenever a public official asserts qualified immunity must be whether that official violated the Constitution at all. 533 U.S. 200-01, 121 S.Ct. at 2155-56.

The Court assumed, when writing Saucier, that this decision would be made before trial; it did not inquire what happens if the official concedes that his conduct was unconstitutional (as Coffey did, by not contesting the jury’s verdict) and contends only that the right was not clearly established “in light of the specific context of the case”. Id. at 201, 121 S.Ct. at 2156. It is hard to see how these can be separated when the defendant’s concession influences the inquiry.

For the underlying constitutional question, made context-specific, must be something like: “Does an excessive show of force, as opposed to an excessive use of force, violate the fourth amendment when undertaken in a dangerous neighborhood after a suspect fails to surrender on demand?” Then the immunity question would be whether an affirmative answer to this question is “sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Ibid., quoting from Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).

It is hard to answer the latter question about a reasonable public official’s understanding if the former question has been framed poorly, answered incorrectly, or, in this appeal, not posed in the first place. Yet Saucier insists that it be posed and answered. We assume that the jury resolved all factual disputes in the McNairs’ favor. Juries are not authorized, however, to determine the substance of the Constitution. Taken in the light most favorable to the verdict, the record shows an over-the-top response by the police department as an entity: too many cars, too many gun muzzles on display.

It does not show that Officer Coffey directed this response or controlled the conduct of the other officers at the scene; to the extent the record speaks to the question, it shows that Coffey did no more than radio for backup. (He denied at his deposition having any control over the number of cars that would be sent or the other officers’ conduct when they arrived, and the jury was not asked to determine whether this answer was truthful.) Coffey was entitled to support from other police; the McNairs do not even argue that the fourth amendment requires all arrests to be made without assistance.

If the policy of the police department were to display or use excessive force, then the McNairs might have a claim under Monell v. New York Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). But they do not argue that the department had such a policy, and Fitchburg, Wisconsin, the unincorporated area near Madison that employed Officer Coffey, has not been made a defendant.

Thus only Coffey’s actions matter, and with respect to these the most that could be said (taking all of the evidence in the light most favorable to the verdict) is that Coffey recognized that many other officers might answer his call, and that he did nothing to prevent them from surrounding the McNairs, drawing their weapons, and otherwise displaying force that under the circumstances was intimidating and frightening. Yet nothing in the fourth amendment specifies how many officers may respond to a call. The number of officers is not independently a “seizure” of any kind.

The McNairs were eventually stopped, and thus seized, compare California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), with Brower v. Inyo County, 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989), but that seizure was supported by probable cause, and the McNairs do not contend that its duration was excessive. Given Atwater v. Lago Vista, 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001), which holds that the Constitution tolerates full custodial arrests for fine-only offenses, no such contention could succeed.

So the seizure is unexceptionable, and plaintiffs do not contest any kind of search. There remains the possibility that a seizure reasonable at the outset may become “unreasonable” because implemented in a needlessly frightening manner. One must be careful of equating fright-inducing aspects with “unreasonableness,” however. That approach comes uncomfortably close to overlaying a shocks-the-conscience standard of substantive due process on the objective standard of the fourth amendment. We did that in Gumz v.

Morrissette, 772 F.2d 1395 (7th Cir.1985), but overruled Gumz two years later after concluding that fourth amendment analysis should depend on an objective assessment of the officers’ conduct, rather than a subjective assessment of the suspect’s reaction to that conduct. See Lester v. Chicago, 830 F.2d 706 (7th Cir.1987). Accord, Grah am v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Although Sacramento v. Lewis, 523 U.S. 833, 842-45, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), held that a shocks-the-conscience approach is appropriate when no seizure occurs, a seizure did take place in this case.

Thus the fourth amendment supplies the right perspective. Plaintiffs recognize this; they do not make any substantive-due-process claim. Viewing matters through the objective reasonableness standard, we conclude that, even taking the record in the light most favorable to the McNairs, a jury could not properly have found that Officer Coffey personally behaved unreasonably. Good practice may have called for sending fewer cars, the better to maintain patrol coverage throughout the jurisdiction, and good community relations may counsel leaving revolvers in their holsters unless necessary.

But the Constitution does not displace state and local governments as the source of wise police practices, and it certainly does not fasten liability on individual officers who call for aid whenever too many colleagues respond. Just as police may order occupants out of their vehicles to promote safety in a traffic stop, see Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); Maryland v.

Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997), and may take suspects into custody for trivial offenses, see Atwater, so they may call extra cars to the scene to ensure that violence does not erupt — especially after a suspect in a rough neighborhood refuses to stop when directed. Plaintiffs have not cited even one post-Graham decision holding that an excessive number of squad cars or drawn guns can violate the fourth amendment by giving fright or offense, if the seizure is supported by probable cause and otherwise reasonable.

At least two — one from this circuit — hold that a simple display of force along these lines does not violate the fourth amendment. See Sharrar v. Felsing, 128 F.3d 810 (3d Cir.1997); Wilkins v. May, 872 F.2d 190 (7th Cir.1989). We have found only one contrary decision, Robinson v. Solano County, 218 F.3d 1030 (9th Cir.2000), and this has been vacated on the grant of rehearing en banc, 229 F.3d 931 (9th Cir.2000). Our point is not that Coffey and the other officers necessarily behaved “reasonably” in the tort sense. State law might or might not have afforded the McNairs some remedy.

Our point, rather, is that the fourth amendment does not duplicate the tort of negligent infliction of emotional distress, a source of civil liability developed at common law long after the Constitution’s adoption. The Supreme Court has held that this tort should not be engrafted onto statutes enacted early in the last century. See, e.g., Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994) (no liability under the fela for emotional injury unless the victim also suffers physical injury). See also Aiello v.

Providian Financial Corp., 239 F.3d 876 (7th Cir.2001) (violation of the automatic stay in bankruptcy does not entitle the debtor to damages for emotional distress). Treating the fourth amendment as anticipating the torts of negligent and intentional infliction of emotional distress would have even less support.

Graham, the Court’s authoritative discussion of excessive force, repeatedly says or assumes that there cannot be excessive force without some force, referring variously to “physically abusive governmental conduct,” 490 U.S. at 394, 109 S.Ct. 1865, “physical force,” id. at 391 n. 5, 109 S.Ct. 1865, and force “applied” to a suspect, id. at 392, 109 S.Ct. 1865. The McNairs are not victims of “physically abusive governmental conduct.” The use of a swat team to make a traffic stop could have consequences under the fourth amendment.

If, for example, a suspect’s consent to search were prompted by fear that the officers would react violently to a refusal, then the consent would be deemed involuntary and set aside. If edgy officers opened fire, that too could lead to liability. But plaintiffs do not trace any search or other touching to Officer Coffey’s radio call for backup. The seizure was lawful (because supported by probable cause).

Although we do not foreclose the possibility that the circumstances of an arrest could become “unreasonable” without the application of physical force, nothing in the circumstances of this case approaches that line, so it is unnecessary to determine where it may be located. It is enough to say that a reasonable officer in Coffey’s position would not have understood that what he was doing violated the McNairs’ rights under the fourth amendment and therefore cannot be required to pay damages. The district court reached this conclusion also, and its judgment is Affirmed.