Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 1:07-cv-155-RBC-Roger B. Cosbey, Magistrate Judge.
The opinion of the court was delivered by: Wood, Circuit Judge
Before POSNER, RIPPLE, and WOOD,Circuit Judges.
When a suspect waves the white flag of surrender, the use of force in connection with an arrest may, as an objective matter, become unnecessary and inappropriate. Not 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. This case involves Antonio M. Johnson, a suspect in a shooting who fled police first by car and then on foot. He made a last-second surrender when Sergeant Steven Scott and Archer, Scott's German Shepherd police dog, were closing in on him. Archer bit Johnson's left arm, and Scott struck Johnson in the process of handcuffing him.
Johnson filed suit under 42 U.S.C. § 1983 alleging that Scott used excessive force in violation of the Fourth Amendment during the course of the arrest. Scott filed a motion for summary judgment, which the district court granted. Johnson now appeals that decision to this court, and we affirm.
At 1:30 a.m. on January 19, 2006, Johnson arrived at the Paradise Lounge in Marion, Indiana. He smoked some marijuana there and then went on to the dance floor. His entertainment was soon interrupted by John "Toady" Drake, the owner of the Lounge and Johnson's uncle; Drake called Johnson over and informed him that there was a person at the Lounge who intended to shoot him. Drake apparently knew that there was an active warrant out for Johnson's arrest, and so he wanted to warn Johnson that he was calling the police. Although Johnson had no valid driver's license, he drove off in his friend's white Chevrolet Caprice.
At about the same time, Sergeant Scott responded to a dispatch concerning a suspected shooting at the Paradise Lounge. Scott then heard a further transmission that a white Chevrolet Caprice had just left the Lounge's parking lot. Scott soon encountered the Caprice and turned on his emergency lights. Johnson's deposition testimony says all that one needs to know about his response to Scott:
Q: Okay. When the . . . police car, that was operated by Captain [sic] Scott, turned on the . . . emergency lights, did you know that . . . those lights were intended for you?
Q: Okay. So, when you turned and . . . went the other way, you knew that you were evading the police trying to stop you?
During his flight, Johnson ignored a stop sign and exceeded the speed limit, despite icy conditions on the roads. When he encountered a police roadblock, he stopped his car and fled on foot.
Scott jumped out of his squad car to pursue Johnson and released Archer to do the same. Johnson darted into a residential yard and hurtled over a waist-high chain link fence, but then he encountered a five-foot-tall wooden fence that blocked his progress. It was at this ...