Date: 02-27-2018

Case Style:

Case Number: 17-1757

Judge: Manion

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Northern District of Illinois

Plaintiff's Attorney: Basileios John Foutris, Michael Joseph Meyer, William B. Oberts

Defendant's Attorney: William Don Emmert, William W. Kurnik, Charlotte Ann LeClercq

Description: Sixteen‐year‐old Michael
DeAngelo Sago, Jr., and three other young men attempted to
rob a pizzeria at gunpoint. Frank Pobjecky, an off‐duty police
2 No. 17‐1757
officer waiting for a pizza, shot and killed Michael.1 James
Horton, as administrator of Michael’s estate, brought various
federal and state claims against Pobjecky and others. The
district court granted summary judgment for Defendants on
all claims, concluding Pobjecky’s use of deadly force was
reasonable and justified, and did not violate the Fourth
Amendment. We affirm.
I. FACTS
A. Surveillance Videos
On review of summary judgment, we view the facts in the
light most favorable to the nonmovant and draw reasonable
inferences in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986); Yahnke v. Kane County, Ill., 823 F.3d 1066, 1070
(7th Cir. 2016). The parties agree about some facts, but they
vigorously contest others.
Four cameras captured surveillance videos of portions of
the events. According to the videos, the encounter lasted less
than a minute. The first video shows the parking lot and
sidewalk outside the front door of Marie’s Pizza in Rockford,
Illinois. The second video shows the same area from a
different angle. The third video shows the kitchen. The fourth
video shows the front door, entrance area, counter, and cash
register from inside the pizzeria. Although on summary
judgment we generally view the facts in the light most
favorable to the nonmovant, in rare circumstances when
video footage clearly contradicts the nonmovant’s claims, we
may consider that video footage without favoring the
1 We refer to Decedent Michael Sago and to Brandon Sago, another
assailant, by their first names because they share a surname.
No. 17‐1757 3
nonmovant. Scott v. Harris, 550 U.S. 372, 378–81 (2007) (“The
Court of Appeals … should have viewed the facts in the light
depicted by the videotape.”). This is because on summary
judgment we view the facts in the light most favorable to the
nonmovant only if there is a genuine dispute about those
facts. Id. at 380. When video footage firmly settles a factual
issue, there is no genuine dispute about it, and we will not
indulge stories clearly contradicted by the footage. Of course,
videos are sometimes unclear, incomplete, and fairly open to
varying interpretations. The story here is very short and
violent.
B. Armed Robbery
Late Saturday evening, October 1, 2011, Frank Pobjecky,
an unarmed off‐duty police officer, waited for the pizza he
ordered at Marie’s Pizza. He was the only customer inside.
He was in the break area with Vincenzo Tarara (the restaurant
manager) and David Weidner (the delivery driver). Andres
Briseno (the cook) was in the kitchen.
The break area was separated by a cooler from the public
entrance area depicted by the fourth video. No video
captured the break area or the cooler. Tarara carried a
concealed semi‐automatic handgun on his hip. Pobjecky
knew about it.
Suddenly four young men entered the front door of the
pizzeria. The videos show the first of these men entering at
timestamp 22:26:32. One of these men, Lamar Coates, held a
revolver. He and Brandon Sago barged into the break area
separated from the entrance by the cooler. Desmond Bellmon
skirted the counter and attacked the cash register. Michael
arrived at the front door last, and stood in the entrance,
4 No. 17‐1757
holding the door open. He was the lookout.2 All four
assailants wore sweatshirts with hoods up. Michael wore a
light color, while the others wore a dark color.
Tarara heard the door chime when the assailants entered.
He approached the front area and encountered Coates,
Brandon, and Bellmon. Tarara did not surrender. Instead he
yelled, “get the hell out of here, you’re not getting any of my
f’ing money.” Pobjecky and Tarara testified that Coates
pointed his gun at each of them and demanded money. In
response to Pobjecky’s Local Rule 56.1 statement of facts,
Horton denied that Coates threatened Pobjecky or Tarara,
demanded money, or said anything before the struggle for
Coates’s weapon began. But in Horton’s answer to Pobjecky’s
request to admit facts, Horton had already admitted Coates
threatened Pobjecky or Tarara, and maybe both, with a gun.
According to Horton, Tarara reached for his own weapon,
reconsidered, slammed Coates against the cooler, and
struggled for Coates’s revolver. For several terrifying seconds
Tarara and Coates both had their hands on Coates’s gun.
Tarara testified Coates tried to shoot him. Tarara fought for
his life. He testified he could see a round down the barrel, and
he could feel Coates trying to pull the trigger. Horton
disputed below whether Coates tried to pull the trigger
during the struggle, but the district court found this issue
immaterial.
There is ultimately no dispute that Coates approached
Tarara and Pobjecky with a gun and threatened at least one of
2 In his response to Pobjecky’s Local Rule 56.1 statement of facts, Horton
denied Michael was the lookout. But during oral arguments before us,
counsel for Horton acknowledged Michael was the lookout.
No. 17‐1757 5
them with it, and that Tarara grabbed Coates’s gun and
struggled for possession of it. According to Horton, the
struggle for Coates’s gun only involved Coates and Tarara.
Pobjecky tried to grab Tarara’s gun from his hip. Brandon and
Bellmon joined the melee. No cameras captured the skirmish
for the guns.
Michael did not join the struggle. He never grabbed for a
gun. The fourth video shows Michael and Bellmon turn their
heads toward the struggle at timestamp 22:26:46, apparently
as soon as they heard the struggle begin. Bellmon left the
counter at about 22:26:47 and entered the break area. But the
video shows Michael remained at the front door for a few
seconds. Then at about 22:26:51 he left the front door and
approached the area of the struggle, off camera.
The parties dispute what Michael did during the struggle
for control of the guns. Horton claims Michael was not
involved in the struggle, never grabbed for a gun, and just
stood near the area with his arms down by his side doing
nothing during the struggle. Horton points to the testimony
of Pobjecky that Michael’s arms were down by his side.
Horton insists the record shows Michael never grabbed for a
gun or scuffled for a gun, never tussled with anyone, never
touched a gun, and did nothing during the struggle.
Defendants, however, characterize Michael as inserting
himself into the situation by entering the pizzeria and quickly
approaching the struggle. At this stage, we accept Horton’s
view of the facts. With the possible exception of partial,
fleeting shapes in the bottom left‐hand corner of the fourth
video, the struggle for control of the guns occurred entirely
off camera. Pobjecky gained possession of Tarara’s gun, and
Tarara won the struggle for Coates’s gun.
6 No. 17‐1757
Horton claims that once Coates lost the struggle for his
gun, he turned, headed for the exit, and saw Pobjecky two feet
away pointing a gun at him as Tarara held the other gun.
Pobjecky then shot Coates in the back without warning,
holding the gun over Tarara’s right shoulder. Bellmon ducked
for cover behind the counter, and Brandon headed for the exit.
According to Appellees, Pobjecky fired the first shot at
timestamp 22:26:56, about 10 seconds after Michael and
Bellmon first turned toward the struggle when it apparently
began. Horton does not dispute this account, and the videos
seem to support it. Pobjecky did not announce he was a police
officer or order anyone to stop. Pobjecky claims he did not
have enough time to do that. With Tarara’s gun, Pobjecky
engaged each criminal suspect as they moved around the
pizzeria. He shot Coates, Brandon, and Bellmon. According
to Horton (citing Coates’s testimony) Pobjecky had a look of
anger, not fear, on his face when he shot Coates. Pobjecky did
not give verbal warnings or commands to the assailants
before shooting them.
Pobjecky shot Brandon as he headed for the door.
Pobjecky and Tarara both pointed guns when Brandon exited,
but only Pobjecky fired. During a break in the shooting,
Bellmon headed for the door. Pobjecky shot at him but
missed, although earlier in the incident Pobjecky shot him in
the buttocks.
Pobjecky then shot Michael three times in the lower back.
The parties dispute the circumstances immediately
surrounding Pobjecky’s shooting of Michael. Horton claims
Pobjecky shot Michael three times as Michael crawled away
from Pobjecky and toward the door. Horton claims Pobjecky
did not consider Michael a threat because Pobjecky turned his
No. 17‐1757 7
back on Michael before shooting him despite being trained
never to turn his back on a threat.
But Pobjecky claims Michael bolted toward him from
behind, coming within one or two feet of him, and startling
him. Pobjecky claims he shot Michael as Michael advanced
toward Pobjecky. Responding to the argument that turning
his back on Michael showed he did not consider Michael a
threat, Pobjecky notes that this argument wrongfully assumes
he knew where Michael was before shooting him, and
overlooks the fact that Pobjecky was outnumbered by
multiple assailants who scattered to various directions. The
district court generally characterized Michael as “crawling”
while Pobjecky shot him. The video supports that view. And
Pobjecky acknowledged during his testimony that when he
shot Michael, Michael’s hands and feet were on the ground.
Pobjecky also testified that he did not shoot Michael to stop
him from escaping.
The fourth video does not definitively resolve all these
issues. It shows Michael leave the screen at about 22:26:52. He
re‐enters the screen at about 22:27:05. He appears to crawl
past Pobjecky and toward the door, and Pobjecky appears to
turn to face Michael. Pobjecky appears to fire the first shot
into Michael at about 22:27:05 after Michael already passed
Pobjecky. Pobjecky fired three shots into Michael, all from
behind. The video seems to contradict Pobjecky’s claim that
“Decedent was advancing towards Pobjecky when he was
shot” (Appellees’ Br. at 23) and that “he was shot as he
approached Pobjecky from behind and fled to the door” (Id.
at 26). Rather, the video seems to show Pobjecky shot Michael
the first time a split‐second after Michael crawled past
Pobjecky and away from him and toward the door. Pobjecky
8 No. 17‐1757
then shot Michael two more times from behind as Michael
attempted to crawl out of the pizzeria. The gunshot wounds
showing the three bullets entered Michael’s back also
contradict Pobjecky’s claim that he shot Michael as he
advanced toward Pobjecky.
In the light most favorable to Horton, the video and
gunshot wounds support his account that Pobjecky shot
Michael from behind three times as Michael crawled away
from Pobjecky and toward the door, and Pobjecky did not
shoot Michael as he advanced toward Pobjecky. But the video
also demonstrates Pobjecky was in close quarters with
multiple, moving, potentially armed assailants, who forced
him to make split‐second, life‐or‐death decisions. And the
video also shows that Michael approached Pobjecky’s area
generally from behind a split‐second before Pobjecky turned
and shot him.
According to the videos, the entire encounter lasted about
36 seconds from the moment the first assailant entered the
front door at about 22:26:31 to the moment Pobjecky shot
Michael the third time as he crawled out the front door at
about 22:27:07.3
At about 22:27:16, Pobjecky locked the front door. Michael
was prostrate on the sidewalk just outside that door. Pobjecky
did not exit the pizzeria until police arrived, because he feared
3 At oral argument, counsel for Horton claimed the timestamps on the
video footage are wrong, and that the events actually lasted at least twice
as long as the timestamps indicate. Horton disputed the accuracy of the
timestamps below, but the district court found he failed to provide any
supporting evidence, and therefore concluded it could properly rely on
the timestamps. Horton did not raise this issue in his appellate brief, so he
waived it.
No. 17‐1757 9
for his life and the lives of others. He had no more bullets. He
claims he did not know who had Coates’s gun and he did not
know whether anyone had another gun. But Horton claims
Pobjecky knew (or must have known) Tarara had Coates’s
gun because Pobjecky stood close to Tarara who was openly
holding Coates’s gun during a portion of the encounter. At
this stage, we accept Horton’s view.
Pobjecky told Tarara to call 911. Tarara tried but had
trouble, so Weidner called 911. The Winnebago County 911
Center received a call at 10:34 p.m. and dispatched police and
paramedics. Pobjecky also placed a call on a direct line he had
to a dispatcher. Briseno hit a panic button alerting authorities
during the incident, at 22:26:52. Paramedics arrived about 11
minutes after Pobjecky shot Michael.
Pobjecky claims he did not see Michael prostrate on the
sidewalk outside the pizzeria’s front door until after police
arrived. But Horton claims it is reasonable to infer Pobjecky
knew Michael’s location, and we accept that at this stage.
There is no dispute Pobjecky shot Michael three times in
the lower back. An autopsy showed the bullets travelled
upward through Michael’s body, fracturing ribs, damaging
multiple organs including his heart, and killing him. Horton
claims Michael could have survived his wounds without
treatment for five to forty minutes. Horton claims Weidner
called 911 seven minutes after Pobjecky shot Michael, and
paramedics arrived four minutes later. Marie’s Pizza was
very close to a hospital.
Coates was the only assailant to bring a gun into the
pizzeria that night. But Pobjecky did not know that, and had
no way to know that. Pobjecky fired the only shots in the
10 No. 17‐1757
pizzeria that night. He shot all four assailants, and only in the
back parts of their bodies. He never identified his office or
gave any verbal warnings or commands before shooting.
Tarara had Coates’s gun during much of the incident, but
never fired it.
All three surviving assailants were convicted of felony
murder.
II. Procedural Posture
Horton, as administrator of Michael’s estate, sued
Winnebago County Sheriff’s Deputy Pobjecky; Winnebago
County, Illinois; and Winnebago County Sheriff Gary
Caruana. Count I brought a claim under 42 U.S.C. § 1983
against Pobjecky and the Sheriff for excessive force. Count II
brought a claim under § 1983 against Pobjecky for failure to
provide medical care. Counts III, IV, and V brought state‐law
claims against Pobjecky and the Sheriff. Count VI brought
state‐law indemnification claims against the County and the
Sheriff.
The district court granted summary judgment for
Defendants on all claims.
III. Discussion
We review a grant of summary judgment de novo,
construing the facts and making reasonable inferences in
favor of the nonmovant. W. Side Salvage, Inc. v. RSUI Indem.
Co., 878 F.3d 219, 222 (7th Cir. 2017). We may affirm on any
ground supported in the record, as long as that ground was
adequately addressed below and the nonmovant had an
opportunity to contest the issue. Cardoso v. Robert Bosch Corp.,
427 F.3d 429, 432 (7th Cir. 2005).
No. 17‐1757 11
Summary judgment is appropriate only “if the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a). The parties must support their assertions
that a fact cannot be or is genuinely disputed by citing to
“particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made
for purposes of the motion only), admissions, interrogatory
answers, or other materials … .” FED. R. CIV. P. 56(c)(1); see
Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). We view
the facts in the light most favorable to Horton and draw
reasonable inferences in his favor. Anderson, 477 U.S. at 255;
Yahnke, 823 F.3d at 1070.
As below, Horton argues on appeal that genuine issues of
material fact preclude summary judgment. The district court
recognized that the parties presented different versions of the
facts, but agreed with Defendants that the factual disputes
were immaterial.
A. Excessive Force
Sometimes a police officer’s use of deadly force is
reasonable and therefore constitutional. A police officer’s use
of deadly force on a suspect is a seizure within the meaning
of the Fourth Amendment, so the force must be reasonable to
be constitutional. Scott v. Edinburg, 346 F.3d 752, 755 (7th Cir.
2003). The Supreme Court set out the fundamental
framework for analyzing excessive‐force claims in Tennessee
v. Garner, 471 U.S. 1 (1985), and Graham v. Connor, 490 U.S. 386
(1989). See County of Los Angeles, Calif. v. Mendez, 137 S. Ct.
1539, 1547 (2017). Graham and Garner stand for the proposition
that a suspect has a constitutional right not to be shot by an
12 No. 17‐1757
officer unless he “reasonably believes that [the suspect] poses
a threat to the officer or someone else.” Weinmann v. McClone,
787 F.3d 444, 450 (7th Cir. 2015).
Thus, a police officer may constitutionally use deadly
force to defend himself and others in certain situations. “It is
clear that, when an individual threatens a police officer with
a deadly weapon, the officer is permitted to use deadly force
in self‐defense if the use is consistent with the principles set
forth in Tennessee v. Garner.” Scott, 346 F.3d at 757. When an
officer reasonably believes an assailant’s actions place “him,
his partner, or those in the immediate vicinity in imminent
danger of death or serious bodily injury, the officer can
reasonably exercise the use of deadly force.” Sherrod v. Berry,
856 F.2d 802, 805 (7th Cir. 1988) (emphasis omitted). An
officer does not violate the Fourth Amendment by firing at a
suspect when the officer “reasonably believed that the suspect
had committed a felony involving the threat of deadly force,
was armed with a deadly weapon, and was likely to pose a
danger of serious harm to others if not immediately
apprehended.” Ford v. Childers, 855 F.2d 1271, 1275 (7th Cir.
1988).
As a form of defense of others, a police officer also may
sometimes constitutionally use deadly force to prevent
escape.
Where the officer has probable cause to believe
that the suspect poses a threat of serious
physical harm, either to the officer or to others,
it is not constitutionally unreasonable to
prevent escape by using deadly force. Thus, if
the suspect threatens the officer with a weapon
or there is probable cause to believe that he has
No. 17‐1757 13
committed a crime involving the infliction or
threatened infliction of serious physical harm,
deadly force may be used if necessary to
prevent escape, and if, where feasible, some
warning has been given.
Tennessee v. Garner, 471 U.S. 1, 11–12 (1985).
Determining whether the force was reasonable under the
Fourth Amendment requires “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.” Graham v. Connor, 490 U.S.
386, 396 (1989) (internal quotation marks omitted). This
reasonableness test “requires careful attention to the facts and
circumstances of each particular case, including the severity
of the crime at issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest by
flight.” Id. “The operative question in excessive force cases is
‘whether the totality of the circumstances justifie[s] a
particular sort of search or seizure.’” Mendez, 137 S. Ct. at 1546
(quoting Garner, 471 U.S. at 8–9).
The test is objective reasonableness. Graham, 490 U.S. at
396. A plaintiff must show the officer’s use of force was
objectively excessive from the perspective of a reasonable
officer on the scene under the totality of the circumstances. Id.
at 396–97; Bell v. Irwin, 321 F.3d 637, 639 (7th Cir. 2003).
We evaluate excessive‐force claims for objective
reasonableness based on the information the officers had at
the time. Mendez, 137 S. Ct. at 1546–47. “What is important is
the amount and quality of the information known to the
14 No. 17‐1757
officer at the time he fired the weapon when determining
whether the officer used an appropriate level of force.”
Muhammed v. City of Chi., 316 F.3d 680, 683 (7th Cir. 2002)
(citation omitted).
The actual officer’s subjective beliefs and motivations are
irrelevant. Scott, 346 F.3d at 756. “An officer’s evil intentions
will not make a Fourth Amendment violation out of an
objectively reasonable use of force; nor will an officer’s good
intentions make an objectively unreasonable use of force
constitutional.” Graham, 490 U.S. at 397.
Also, we must refuse to view the events through
hindsight’s distorting lens. Id. at 396. We must consider the
totality of the circumstances, including the pressures of time
and duress, and the need to make split‐second decisions
under intense, dangerous, uncertain, and rapidly changing
circumstances. See Ford, 855 F.2d at 1276. We must recognize
that in such circumstances, officers often lack a judge’s luxury
of calm, deliberate reflection. “The calculus of reasonableness
must embody allowance for the fact that police officers are
often forced to make split‐second judgments—in
circumstances that are tense, uncertain, and rapidly
evolving—about the amount of force that is necessary in a
particular situation.” Graham, 490 at 396–97.
Judges view facts from afar, long after the gunsmoke
cleared, and might take months or longer to decide cases that
forced police officers to make split‐second decisions in life‐ordeath
situations with limited information. “We as judges have
minutes, hours, days, weeks, even months to analyze,
scrutinize and ponder whether an officer’s actions were
‘reasonable,’ whereas an officer in the line of duty all too
frequently has only that split‐second to make the crucial
No. 17‐1757 15
decision.” Ford, 855 F.2d at 1276 n.8. The events here unfolded
in heart‐pounding real time, with lives on the line. Pobjecky
lacked our luxury of pausing, rewinding, and playing the
videos over and over.
Of course, the fluid nature of these situations also
highlights the limited scope of the constitutional permission
to use deadly force. Even though an officer may in one
moment confront circumstances in which he could
constitutionally use deadly force, that does not necessarily
mean he may still constitutionally use deadly force the next
moment. The circumstances might materially change. “When
an officer faces a situation in which he could justifiably shoot,
he does not retain the right to shoot at any time thereafter
with impunity.” Ellis v. Wynalda, 999 F.2d 243, 247 (7th Cir.
1993).
Finally, it bears noting that the availability of less severe
alternatives does not necessarily render the use of deadly
force unconstitutional. The Fourth Amendment does not
require “the use of the least or even a less deadly alternative
so long as the use of deadly force is reasonable under
Tennessee v. Garner and Graham v. Connor … .” Plakas v.
Drinski, 19 F.3d 1143, 1149 (7th Cir. 1994).
The relevant question is whether Pobjecky reasonably
believed Michael posed a threat of death or serious bodily
injury based on the information Pobjecky had during the
robbery. The district court accurately summarized the salient
facts. The incident lasted only about 45 seconds from the
moment the first assailant entered the pizzeria to the moment
Pobjecky locked the door. Pobjecky had limited time to react
to four assailants attempting to commit an armed robbery.
Pobjecky had to react to a struggle over a loaded gun. After
16 No. 17‐1757
Coates made threats with a gun, Pobjecky reasonably
assumed the three other assailants, including Michael, might
be armed. As the district court correctly observed, we may not
consider the fact that it turned out Michael was unarmed
because Pobjecky did not know that, and had no reasonable
way to know that, at the time. “Knowledge of facts and
circumstances gained after the fact (that the suspect was
unarmed) has no place in the trial court’s or jury’s proper
post‐hoc analysis of the reasonableness of the actor’s
judgment.” Sherrod, 856 F.2d at 805. As long as the assailants
were moving inside the pizzeria, they posed a threat.
Considering the facts in the light most favorable to Horton,
no reasonable jury could find Pobjecky’s belief that Michael
might be armed was unreasonable. Michael participated in an
armed robbery while wearing a sweatshirt allowing easy
concealment of a gun.
The district court compared this case to Ford, where we
examined the totality of the circumstances known to the
officer at the time and found no Fourth Amendment violation
when the officer fired on a suspect because the officer
“reasonably believed that the suspect had committed a felony
involving the threat of deadly force, was armed with a deadly
weapon, and was likely to pose a danger of serious harm to
others if not immediately apprehended.” Ford, 855 F.2d at
1275. The district court reasoned that here the case in favor of
the officer is even stronger than it was in Ford because there
the officer did not see a weapon and was not present during
the felony, but here Pobjecky witnessed the commission of a
dangerous felony, saw Coates make threats with a gun, and
was out‐numbered by the assailants, all of whom Pobjecky
reasonably thought might be armed.
No. 17‐1757 17
Horton attempts to distinguish Michael from the other
three assailants. Michael’s hoodie was a different color. He
wore no mask. He entered last. He had no gun, never fought
over a gun, and never said anything threatening. Horton goes
so far as to characterize Michael as a mere “observer.” But
these distinctions ultimately make no difference. There is no
dispute Michael participated in the armed robbery. Pobjecky
was an off‐duty, initially unarmed officer under immense
pressure, facing multiple moving assailants over a short
period of time. He had no reason to think that the color of
Michael’s hoodie or his lack of a mask distinguished him as
harmless. Pobjecky had no way to know Michael entered the
pizzeria last, and such knowledge is irrelevant anyway.
Pobjecky had no way to know Michael was unarmed. Michael
participated in an armed robbery and wore clothing that
could conceal a gun or other weapon. Pobjecky reasonably
assumed Michael posed an imminent threat of death or
serious injury, even though he did not fight over a gun or say
anything threatening.
Horton argued below, and on appeal, that Michael
surrendered before or while Pobjecky shot him. Horton
points to a footage frame showing Michael’s arm elevated
near the door as Pobjecky points a gun at him. But the district
court correctly noted Horton takes this frame out of context.
In context, the video shows Michael elevated his arm quickly
to open the door while he moved toward it. In any event,
“[n]ot all surrenders, however, are genuine, and the police are
entitled to err on the side of caution when faced with an
uncertain or threatening situation.” Johnson v. Scott, 576 F.3d
658, 659 (7th Cir. 2009). No reasonable jury would conclude
the shooting was unreasonable on the basis of the footage
frame when viewed in context.
18 No. 17‐1757
Horton also argued below, and on appeal, that Pobjecky
never gave any warnings before shooting. But the district
court correctly observed that Garner requires an officer to
warn “where feasible” but does not require an officer to warn
under all circumstances. Garner, 471 U.S. at 11–12. Given the
desperate circumstances Pobjecky faced, and the limited time
he had, no reasonable juror could conclude he should have
stopped to identify his office or warn the assailants before
shooting them to defend himself and others.
Horton argues we cannot justify the shooting based on the
goal of preventing escape because Pobjecky testified he did
not think Michael was fleeing. But even if Pobjecky
subjectively did not intend to prevent Michael from escaping
by shooting him, that does not mean it was objectively
unreasonable to shoot Michael to prevent him from escaping.
The video shows Michael moving toward the exit as Pobjecky
shoots him. Even if Michael had already crawled past
Pobjecky, it was still reasonable for Pobjecky to shoot him in
the back to prevent escape. Moreover, the goals of selfdefense
and defense of others remained valid even after
Michael crawled past Pobjecky because for all a reasonable
officer could have known Michael could have turned and
produced a gun in a flash given all the facts and
circumstances. In sum, even if Pobjecky only shot Michael in
the back as he crawled away, this shooting would still have
constituted a reasonable prevention of escape, despite
Pobjecky’s testimony, and this shooting would still have
constituted a reasonable act in defense of self and others.
Horton argues we cannot justify the shooting based on the
goals of self‐defense or defense of others because the evidence
viewed in his favor shows Michael did not pose an imminent
No. 17‐1757 19
threat of death or serious physical injury to anyone. Horton
argues that if Michael were inclined to harm anyone, and
were capable of doing so, he would have done so before he
was shot. Horton also argues Pobjecky did not perceive
Michael to be a threat because he was “so unconcerned” about
Michael that he turned his back to Michael, who was only a
few feet away, before shooting him. We disagree. What
matters is whether a reasonable officer on the scene would
have perceived Michael as posing an imminent threat of death
or serious physical injury. Even in the light most favorable to
Horton, the answer is yes. There is no reason to think
Pobjecky should have assumed Michael was harmless
because if he had a gun, he would have used it sooner. A
reasonable officer need not risk his life and the lives of others
on such speculation. And there is no reason to think Pobjecky
knew where Michael was at all times. Besides, given the
varied and changing positions of the assailants after Pobjecky
got hold of Tarara’s gun, Pobjecky could not give his full
attention to all the assailants at once. Turning toward one
required turning away from another.
Horton recognizes that perhaps Pobjecky could have
constitutionally shot Michael at some earlier stage of the
encounter. But Horton insists that the shooting was no longer
permissible after the struggle for the guns was over, Coates
was neutralized, Bellmon and Brandon had left, and Michael
was crawling away from Pobjecky, who never identified his
office or told Michael to stop. But this ignores the totality of
the circumstances. As shown in the video, during an armed
robbery Michael approached Pobjecky generally from
behind, in close quarters, and Pobjecky turned to confront the
threat and immediately shot Michael. When he shot Michael,
20 No. 17‐1757
Pobjecky did not know the total number of assailants, and he
reasonably assumed all might be armed and dangerous.
Viewing the facts and drawing inferences in Horton’s
favor, and considering the totality of the circumstances, we
agree that the four assailants placed the lives of Pobjecky and
others in objectively grave danger, and that Pobjecky’s
response with deadly force was reasonable. Michael
participated in an armed robbery. After approaching
(although not directly participating in) a struggle for a loaded
gun, Michael advanced toward Pobjecky generally from
behind, in close quarters, as other assailants occupied various
positions. Pobjecky immediately shot him.
Pobjecky objectively had reason to think Michael was
armed and dangerous, and posed an imminent threat of death
or serious bodily harm to Pobjecky and the community.
Under immense pressure, and with limited time, Pobjecky
responded to the armed siege with reasonable, appropriate,
and justified force, in compliance with the Fourth
Amendment. No reasonable jury could find otherwise.
Michael’s death is deeply regrettable. It is tragic. But the tragic
flaw rests with the assailants, not with Pobjecky.
B. Failure to Provide Medical Care
Michael lived briefly after the shooting. Horton claims
Michael might have survived had he received medical care
sooner. Horton argues Michael’s wounds might have been
survivable without treatment for five to forty minutes.
Horton notes paramedics arrived only four minutes after
Weidner’s 911 call, but Weidner did not make that call until
seven minutes after Pobjecky shot Michael. Horton argues
that had Pobjecky called 911 within a minute after shooting
No. 17‐1757 21
Michael, the paramedics could have arrived early enough to
save Michael’s life, or at least to alleviate his excruciating
pain. As it happened, the paramedics arrived eleven minutes
after Pobjecky shot Michael, which was too late to save him.
The Fourth Amendment’s objective reasonableness
standard applies here, too. Sallenger v. City of Springfield, Ill.,
630 F.3d 499, 503 (7th Cir. 2010). Horton had to show
Pobjecky’s response to Michael’s medical needs was
objectively unreasonable, and that Pobjecky’s response
caused harm. Ortiz v. City of Chi., 656 F.3d 523, 530 (7th Cir.
2011).
The district court considered the four‐factor
reasonableness test articulated in Ortiz, found no
constitutional violation, and granted summary judgment to
Defendants. Ortiz provides four factors to determine whether
an officer’s actions regarding medical care were objectively
unreasonable: (1) whether the officer had notice of the
medical needs; (2) the seriousness of the medical needs; (3)
the scope of the requested treatment; and (4) police interests
that might inhibit providing treatment. Ortiz, 656 F.3d at 530.
“[T]he Fourth Amendment’s reasonableness analysis
operates on a sliding scale, balancing the seriousness of the
medical need with the third factor—the scope of the
requested treatment.” Williams v. Rodriguez, 509 F.3d 392, 403
(7th Cir. 2007).
As the district court recognized, in the light most favorable
to Horton, Pobjecky knew Michael had serious medical needs.
But the third and fourth factors outweigh the first and second.
Pobjecky reasonably feared for his life and the lives of others.
After exhausting his ammunition neutralizing the assailants
at least temporarily, he locked the front door. He did not
22 No. 17‐1757
know whether some assailants were regrouping or
summoning reinforcements. He then did what a reasonable
police officer in that situation would do: he instructed Tarara
to call 911. Tarara had trouble getting through, so Weidner
called. Pobjecky also called a dispatcher on his direct line. The
record shows 911 received a call at 10:34 p.m. reporting an
armed robbery and injuries from gunshots, and the first
responders arrived at the scene at 10:38 p.m.
The law does not require, and Horton cannot expect,
Pobjecky to do anything more. It was objectively reasonable
for Pobjecky to stay inside the locked pizzeria awaiting help.
It is objectively unreasonable to demand him to venture into
the night with an empty gun, risking further onslaught,
braving the hazards Michael and the other assailants created,
to administer treatment to Michael. The district court
properly concluded a reasonable jury could not find Pobjecky
should have unlocked the door, exited, and provided medical
care. Pobjecky did not violate the Constitution.
C. Monell Claim
Horton also brought a Monell claim against the Sheriff,
claiming deficiencies in the policies, procedures, customs, and
practices of the Sheriff caused the shooting of Michael. The
district court properly granted summary judgment for the
Sheriff regarding the Monell claim predicated on excessive
force because Pobjecky did not use excessive force. The
district court also noted that any Monell claim predicated on
failure to provide medical care would also fail because
Pobjecky did not violate the Constitution in this regard either.
“[A] municipality cannot be liable under Monell when there is
no underlying constitutional violation by a municipal
employee.” Sallenger, 630 F.3d at 504.
No. 17‐1757 23
As we affirm the district court’s grant of summary
judgment for Pobjecky regarding the claims for excessive
force and failure to provide medical care, we also affirm the
district court’s grant of summary judgment regarding the
Monell claim.
D. State‐Law Claims
Horton also brought one claim under the Illinois Wrongful
Death Act and two claims under the Illinois Survival Act
against Pobjecky and the Sheriff. After granting Defendants
summary judgment regarding the federal claims, the district
court chose not to relinquish supplemental jurisdiction over
the state‐law claims.
Pobjecky and the Sheriff claimed immunity against the
state‐law claims pursuant to the Illinois Local Government
and Governmental Employees Tort Immunity Act, which
grants public employees immunity from liability for any “act
or omission in the execution or enforcement of any law unless
such act or omission constitutes willful and wanton conduct.”
745 ILCS 10/2‐202. The district court correctly concluded that
since Pobjecky’s actions were objectively reasonable, they
cannot be willful and wanton, so Defendants were entitled to
immunity, and the state‐law claims failed.

Outcome: Even in the light most favorable to Horton, Officer
Pobjecky acted reasonably when confronted with a perilous,
life‐threatening situation. He did not violate the Constitution.
We affirm the district court.
AFFIRMED.

Plaintiff's Experts:

Defendant's Experts:

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