On November 19, 2021, the Seventh Circuit Court of Appeals decided Hennings v. Milone[i], which serves as an excellent review of the law related to excessive force.  The relevant facts of Hennings are as follows:

[Officer] Milone joined the pursuit of Hennings who was driving a car that matched the description of one that had been used in an armed robbery an hour earlier. Police cameras captured most of the chase and arrest. Hennings fled from the police at speeds sometimes over 100 miles per hour until he crashed into a taxi, injuring some of the occupants. Milone and his partner were the first to arrive at the wreck. Milone ran toward the car while his partner chased after another person running from the crash. Suspecting that the driver could be armed, Milone approached the car’s driver-side with his gun drawn, yelling that he was “going to shoot.” Hennings swears that, in response, he placed his hands on the steering wheel to show compliance. Milone counters that he could not see Hennings’s hands through the car’s airbags, though he could see Hennings’s body move toward the center console. Regardless, within seconds, Hennings feet were outside the passenger-side door—opposite Milone. Fearing that Hennings was trying to flee, Milone holstered his gun, reached in the driver’s side, and grabbed Hennings by his hair, yelling for other officers to help. In the scuffle of the next few seconds, Milone told Hennings not to flee and tried to pull him out of the car on the driver’s side by holding his hair and punching him in the head. Hennings said “stop, aye, aye, aye . . . man stop.” After about 25 seconds, Hennings broke free of Milone and bolted from the car’s passenger side. He stumbled, and another officer took him to the ground.

After a struggle on the ground, Hennings was arrested. He says that he resisted because he feared for his safety after the encounter with Milone. Milone handcuffed him, exclaiming, “It’s on camera you almost killed somebody.” Hennings alleged that the handcuffs were “smashed on.” The officers kept Hennings pinned to the ground until about a minute later, when Hennings said that he couldn’t breathe and had severe asthma. One officer turned him on to his side to coach his breathing; afterward another group of officers took him to a squad car. Hennings was later taken to a hospital and treated for his injuries from the crash and its aftermath. The injuries included blunt trauma to his abdomen, a closed head injury, chest contusions, and a strained wrist.[ii]

Hennings sued Officer Milone under the Fourth Amendment for using excessive force.  The district court found the officer’s use of force reasonable and granted summary judgment for the officer.  Hennings appealed to the Seventh Circuit Court of Appeals.

The issue before the court was whether a reasonable jury could believe that Officer Milone’s use of force was unreasonable based on the facts of the case.

The court of appeals first noted the applicable legal principles and stated

A court assesses reasonableness under the Fourth Amendment by looking to the totality of the circumstances, including: (1) the seriousness of the crime at issue, (2) whether the suspect poses a threat (Hennings does not contest that Milone reasonably believed that he was armed), and (3) whether the suspect is resisting or fleeing arrest. Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989) (citing Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985)).[iii]

The court noted that the relevant facts of the case were (1) Officer Milone was responding to a dangerous vehicle pursuit with a possible armed robbery suspect, (2) Milone had a reasonable belief Hennings may be armed, and (3) Hennings appeared to be attempting to flee again.

Hennings first argued that a reasonable officer would have recognized that he was trying to surrender.  The court stated that

[A] display of genuine surrender can render a use of force excessive, Johnson v. Scott, 576 F.3d 658, 659 (7th Cir. 2009).[iv]

Hennings bases this argument on two assertions.  First he asserts that he put his hands on the steering wheel to surrender.  The court observed that even if Hennings put his hands on the steering wheel, the officer’s camera shows that Hennings put his feet outside the passenger door of the car, as if to flee.  Second, Hennings asserts that when the officer grabbed his hair, he yelled, “stop, aye, aye, aye…man, stop.” The court of appeals stated that this is not a call of surrender, but rather a call for Officer Milone to stop his attempt to subdue him.  Thus, the court of appeals held that it would be unreasonable to find that these two facts would cause a reasonable officer to believe Hennings was surrendering.

Second, Hennings argued that the force used by Officer Milone, particularly grabbing him by the hair and punching him, was unreasonable.  The court of appeals responded

We also conclude that a jury could not find that the force Milone used briefly to subdue Hennings during the fast-paced events—grabbing his hair and punching him—was unreasonable. Hennings had likely committed a serious offense (recklessly driving), he might be armed, and he appeared to be trying to flee arrest. Milone’s quick decision to grab a reachable, non-threatening part of Milone’s body to quell him, protect himself and others, and prevent flight could not be found to be unreasonable.[v]

The court did note that for non-serious offenses, such force may be excessive, and they noted a situation were person who was compliant and handcuffed was pulled out of a car by her hair.  This was certainly not the case in Hennings incident.

Third, Hennings argued that the court did not consider the severity of his injuries.  The court of appeals noted that the district court did consider the severity of his injuries, and concluded they were reasonable in light of the severity of the crime, the threat, and his flight.  Further, Hennings did not distinguish between injuries he may have received in the car crash and injuries sustained from the use of force, such as the punches.  Lastly, he did not receive injury from the handcuffs being “smashed” on his wrists.

Fourth, Hennings argued that because Officer Milone made the statement, “It’s on camera that you almost killed somebody,” that this shows the use of force was retaliation for his conduct.  The court of appeals noted that the standard under the Fourth Amendment is an objective standard, rather than the subjective (personal) feelings of the officer.  The court stated

[U]nder the Fourth Amendment, an officer’s subjective intent in using force is irrelevant “[o]nly its reasonableness matters.” Richman v. Sheahan, 512 F.3d 876, 882 (7th Cir. 2008).[vi]

Thus, the officer’s intent does not matter if the force used is objectively reasonable, as it was here.

Therefore, the court of appeals affirmed the grant of summary judgment in favor of the officer.



[i] No. 21-1533 (7th Cir. Decided November 19, 2021 Unpublished)

[ii] Id. at 2-3

[iii] Id. at 4 (emphasis added)

[iv] Id. at 5 (emphasis added)

[v] Id.

[vi] Id.

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