No qualified immunity for officer in diabetic man's claim

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Indiana Lawyer Rehearing

The 7th Circuit Court of Appeals affirmed denial of summary judgment in favor of a police officer in a diabetic man’s claims that the officer used excessive force and injured him while removing him from a car after a diabetic episode.

Police Chief Jerry Price claimed qualified immunity against the Fourth Amendment violation claim by Frank McAllister. McAllister’s blood sugar plummeted while he was driving in Burns Harbor, causing him to get into an accident with two other cars. Calls to 911 reported a possible intoxicated driver; witnesses at the crash saw McAllister staring off into space, twitching, and convulsing as Price arrived at the scene.

McAllister was unable to respond to Price’s request to turn off the car or answer what was wrong with him. Price, believing he was intoxicated, pulled McAllister out of the car, threw him to the ground, and handcuffed him. Price is trained to ask if someone who appears unwell is diabetic, but did not do so until after taking him to the ground. After this, Price found McAllister’s medical alert necklace and released the handcuffs.

McAllister suffered several injuries from the incident, including a bruised lung and a broken hip. He claimed that he wasn’t hurt from the accident.

Price filed an interlocutory appeal to the 7th Circuit once the District Court denied his summary judgment motion on the excessive force issue.

In Frank McAllister v. Jerry L. Price, in his individual capacity, No. 10-1213, the Circuit judges concluded the District Court didn’t err in finding that McAllister’s injuries were relevant to determining whether Price used excessive force or in finding a genuine issue of material fact regarding McAllister’s diabetic condition.

They also found McAllister had enough evidence to create an issue of fact on whether Price’s use of force was reasonable.

“Viewed in the light most favorable to McAllister, the evidence shows that Price ignored obvious signs of McAllister’s medical condition, pulled him out of the car, and took him to the ground with such force that McAllister’s hip was broken and his lung bruised from the force of Price’s knee in his back, not because such force was necessary but because Price was 'angry' with McAllister,” wrote Judge Joel Flaum.

Even if Price was justified in using some force to remove McAllister, using the force involved here against a non-resisting suspect could have been unreasonable given the circumstances. There are other possible interpretations of the evidence, but if believed, it’s sufficient for a jury to conclude it was excessive force, noted the judge.

The judges also concluded that Price’s conduct went beyond the bounds of McAllister’s clearly established Fourth Amendment rights and Price could have inferred his conduct was illegal based on previous cases dealing with excessive force.


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  1. This state's high court has spoken, the fair question is answered. Years ago the Seventh Circuit footnoted the following in the context of court access: "[2] Dr. Bowman's report specifically stated that Brown "firmly believes he is obligated as a Christian to put obedience to God's laws above human laws." Dr. Bowman further noted that Brown expressed "devaluing attitudes towards pharmacological or psycho-therapeutic mental health treatment" and that he made "sarcastic remarks devaluing authority of all types, especially mental health authority and the abortion industry." 668 F.3d 437 (2012) SUCH acid testing of statist orthodoxy is just and meet in Indiana. SUCH INQUISITIONS have been green lighted. Christians and conservatives beware.

  2. It was all that kept us from tyranny. So sad that so few among the elite cared enough to guard the sacred trust. Nobody has a more sacred obligation to obey the law than those who make the law. Sophocles No man is above the law and no man is below it; nor do we ask any man's permission when we ask him to obey it. Obedience to the law is demanded as a right; not asked as a favor. Theodore Roosevelt That was the ideal ... here is the Hoosier reality: The King can do no wrong. Legal maxim From the Latin 'Rex non potest peccare'. When the President does it, that means that it is not illegal. Richard Nixon

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  4. Heritage, what Heritage? The New Age is dawning .... an experiment in disordered liberty and social fragmentation is upon us .... "Carmel City Council approved a human rights ordinance with a 4-3 vote Monday night after hearing about two hours of divided public testimony. The ordinance bans discrimination on the basis of sexual orientation or gender identity, among other traits. Council members Rick Sharp, Carol Schleif, Sue Finkam and Ron Carter voted in favor of it. The three council members opposing it—Luci Snyder, Kevin Rider and Eric Seidensticker—all said they were against any form of discrimination, but had issues with the wording and possible unintended consequences of the proposal." Kardashian is the new Black.

  5. Can anyone please tell me if anyone is appealing the law that certain sex offenders can't be on school property. How is somebody supposed to watch their children's sports games or graduations, this law needs revised such as sex offenders that are on school property must have another non-offender adult with them at all times while on school property. That they must go to the event and then leave directly afterwards. This is only going to hurt the children of the offenders and the father/ son mother/ daughter vice versa relationship. Please email me and let me know if there is a group that is appealing this for reasons other than voting and religion. Thank you.