November 6, 2019
from the United States District Court for the Southern
District of Indiana, Indianapolis Division. No. l:17-cv-04612
- Tanya Walton Pratt, Judge.
Easterbrook, Manion, and Barrett, Circuit Judges.
MANION, CIRCUIT JUDGE.
Day died tragically while in police custody on September 26,
2015. This occurred while his hands were cuffed behind his
back after he had winded himself during a chase following an
apparent shoplifting. The autopsy report concluded his cause
of death was a lack of oxygen in his blood, caused in part by
his obesity, an underlying heart condition, and restricted
breathing due to having his hands cuffed behind his back. In
this § 1983 excessive force action brought against the
arresting officers, the district court concluded the officers
were not entitled to qualified immunity because
"reasonable officers would know they were violating an
established right by leaving Day's hands cuffed behind
his back after he complained of difficulty breathing."
For the reasons set forth below, we disagree with the
district court's conclusion of law and accordingly
relating the facts, we first address which facts we must
accept or assume for purposes of this interlocutory appeal of
the denial of qualified immunity. The plaintiffs argue we
must accept both "the 'facts that the district court
assumed when it denied summary judgment,' and ...
'the plaintiff's version of the facts."'
This misstates the standard established by our case law. We
are instead presented with a choice between "[s]everal
sources of undisputed facts [that] may frame our review"
of the purely legal question presented by a denial of
qualified immunity. White v. Gerardot, 509 F.3d 829,
833 (7th Cir. 2007). We may "take, as given, the facts
that the district court assumed when it denied summary
judgment." Id. (quoting Washington v.
Haupert, 481 F.3d 543, 549 n.2 (7th Cir. 2007)).
Alternatively, "we may conduct our review by
'accepting the plaintiff's version of the
facts.'" Id.; see also Jewett v. Anders,
521 F.3d 818, 819 (7th Cir. 2008). And finally, whether we
accept the district court's assumed facts or the
plaintiff's version of the facts, we may also look to
undisputed evidence in the record even if the district court
did not consider it. White, 509 F.3d at 833 n.5;
see also Thompson v. Cope, 900 F.3d 414, 419 (7th
we are free to choose either the district court's assumed
facts or the plaintiff's version, it is most often
appropriate to accept the facts assumed by the district court
in its denial of summary judgment. Haupert, 481 F.3d
at 549 n.2. Accordingly, we accept the district court's
statement of facts. See Day v. City of Indianapolis,
380 F.Supp.3d 812, 817-21 (S.D. Ind. 2019). In a few
instances, which we note, we look to undisputed evidence not
included in the district court's order but provided
elsewhere in the record.
Day was eighteen years old and weighed approximately 312
pounds at the time of his death, with a history
of obesity and an underlying heart condition. On September
26, 2015, Day was confronted by a loss-prevention officer
outside the Burlington Coat Factory at Washington Square Mall
in Indianapolis after Day apparently shoplifted a watch from
the store. Day returned the watch but refused to return to
the store with the loss-prevention officer. A mall security
officer who joined the confrontation noticed Day had a gun in
his pocket. There are varying accounts of what occurred next,
but it is undisputed that a chase ensued in which Day ran out
of the mall, through the parking lot, and across a street to
a gas station. He there collapsed on a grassy slope. Law
enforcement soon arrived in response to a radio call
describing an armed shoplifter. At this point, the gun was no
longer on Day's person, but was lying in the grass a few
feet away and out of his reach.
Denny, the second officer to arrive on scene, handcuffed Day
behind his back with a single set of handcuffs. He testified
that Day's hands came together easily behind his back. He
noticed Day was overweight, sweating, and breathing heavily.
Day told the officers he was having trouble breathing;
Officer Denny told Day he had exerted himself by running and
instructed him to take deep breaths in and out to slow his
heart rate. Officer Denny otherwise did not observe any signs
of distress or of Day's trouble breathing.
Denny initially instructed Day to remain in an upright seated
position, which he believed to be the most comfortable
position for Day and ideal for the officers' safety.
However, Day would not maintain this position, but instead
laid down and rolled down the slope. After two attempts to
keep Day seated upright, Officer Denny instead positioned Day
to lie on his side. Officer Denny believed this was the best
course of action to prevent Day from asphyxiating by rolling
onto his stomach. While repositioning Day, Officer Denny
observed Day had defecated on himself. He attributed this to
Day having over-exerted himself during the chase.
Wooten arrived shortly after Officer Denny detained Day.
Sergeant Wooten monitored Day while Officer Denny completed
his investigative duties as the arresting officer. Sergeant
Wooten and other officers repositioned Day several times when
he rolled onto his stomach. Day complained to Sergeant Wooten
that he could not breathe; however, Sergeant Wooten was
skeptical of these complaints because Day also claimed to
have done nothing wrong and was asking to be released. All
the same, Sergeant Wooten called for an ambulance to evaluate
Day approximately five minutes after Day was initially
detained. Sergeant Wooten observed that Day appeared to calm
down and began to breathe normally.
ambulance arrived, and two paramedics examined Day. In
response to their questions, Day told the paramedics he had
no preexisting medical conditions. He was able to speak to
them in clear, full sentences. Their examination involved
multiple tests, including listening to Day's breathing
and checking his heart rate, respiratory rate, and blood
oxygen saturation. Day's hands remained cuffed behind his
back throughout the examination. The paramedics concluded Day
was breathing regularly and normally. Based on their
examination, the paramedics believed Day did not need to go
to a hospital.
point, the paramedics asked Sergeant Wooten to sign a release
form so they could transfer custody of Day back to law
enforcement. Sergeant Wooten did so. The form he signed was
called a "Treatment/Transport Refusal," and is
meant to be signed by a patient when he refuses to be
transported to the hospital after being evaluated by
paramedics. However, when the paramedics determine a
handcuffed prisoner does not need to be transported to the
hospital, they have an officer sign the form as a witness of
the transfer, not as a representative of the prisoner.
Denny requested a "jail wagon" to transport Day to
a detention facility. When the jail wagon arrived, the driver
found Day unresponsive. At that point Day was lying on his
back on the asphalt with his hands still cuffed behind his
back. When the driver and Sergeant Wooten attempted to stand
Day up, his legs straightened and his knees locked. When Day
failed to respond either verbally or physically to two
"sternum rubs" (a painful stimulus administered to
an unresponsive subject's chest to invoke a reaction),
the driver asked Sergeant Wooten to call a second ambulance.
second ambulance arrived with a different team of paramedics,
approximately forty-three minutes after the first ambulance
had arrived. Sometime between the departure of the
first ambulance and the arrival of the second, a second pair
of handcuffs was added to Day's wrists. When the
paramedics arrived, Day's eyes were open, and he was
breathing, but his pulse was weak. Day was loaded into the
back of the ambulance and the paramedics began to perform
CPR. After attempting without success to revive Day for 30
minutes, he was pronounced dead. The coroner dispatched to
the scene examined Day's body and found no visible signs
of trauma. However, the autopsy report listed his cause of
death as "Sudden Cardiac ...