In the
United States Court of Appeals
For the Seventh Circuit
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No. 22-2757
BOWE MARVIN,
Plaintiff-Appellant,
v.
DAVID HOLCOMB, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:20-cv-553-MGG — Michael G. Gotsch, Sr., Magistrate Judge.
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ARGUED MAY 24, 2023 — DECIDED JULY 11, 2023
____________________
Before SCUDDER, ST. EVE, and KIRSCH, Circuit Judges.
ST. EVE, Circuit Judge. On April 3, 2015, Bowe Marvin’s
mother called the police to perform a wellness check on her
son, who she thought was suicidal. St. Joseph County Sheriff’s
Deputies David Holcomb, Matthew Corban, and Christopher
Lawson-Rulli arrived at Marvin’s home and found his mother
in the driveway with a bleeding lip. When she told them that
her son had hit her with a chair and caused the bleeding, they
approached the house to speak with Marvin himself. In the
2 No. 22-2757
subsequent altercation, the deputies saw that Marvin had a
knife, pulled him from the doorway, and wrestled him to the
ground. While he resisted, they tased him twice and struck
him several times.
In response, Marvin sued the deputies for unlawful entry
and excessive force in violation of the Fourth Amendment.
The district court granted summary judgment on some of
Marvin’s claims, and a jury returned a verdict for the defendants on the remaining claims. We now affirm.
I. Background
A. Factual History
On April 3, 2015, Bowe Marvin was 21 years old and living
with his father, Greg. That day, Marvin’s mother, Michelle,
drove to Greg’s house to tell Marvin that he needed to move
out and come live with her. This led to a heated argument.
Marvin told her he would not leave his father’s house and became increasingly agitated. In his anger, he broke her sunglasses, flipped an ashtray, and threw a chair across the room,
hitting her in the face and cutting her lip open. Michelle then
left the house and called the police from her truck in the driveway. She asked the police to perform a welfare check on
Marvin, as she was worried he might be suicidal. She also told
the dispatcher that Marvin regularly carried a box cutter.
When the police arrived, they found Michelle in the car in
the driveway. The group included three Sheriff’s Deputies:
David Holcomb, Matthew Corban, and Christopher Lawson-Rulli. They saw Michelle’s split lip and repeatedly asked what
had happened to her. She insisted she was fine and asked
them to go check on Marvin. The deputies explained that they
would not go inside until she told them what had happened
No. 22-2757 3
to her lip. At that point, Michelle told them that her son had
thrown a chair at her. One deputy allegedly said, “I’m taking
him down,” and all three approached the house.
Deputy Corban knocked on the door and Greg answered.
Marvin then came to the door and stood in the doorway. The
deputies asked Marvin several times to leave the house, but
they did not tell him why they were there, that they had spoken to his mother, or whether he was under arrest. They also
repeatedly asked if he had any weapons, and he responded,
“What? What do you mean?” Seemingly amidst this discussion of whether Marvin had a weapon, Greg came up behind
him and removed a knife from Marvin’s back pocket. 1
Seeing that Greg had removed a knife, Lawson-Rulli and
Holcomb grabbed Marvin’s hands and pulled him from the
house. The parties dispute whether Marvin was inside or outside the doorway when this happened—that is, they dispute
whether the deputies had to enter the house to pull him out.
Marvin fell to the ground outside and attempted to stand up.
Corban wrapped his arms around Marvin’s legs, bringing
him back to the ground. Holcomb tased Marvin once; and
when that did not seem to have an effect, he tased him a second time. Simultaneously, the deputies hit him with open
hands and closed fists. When Marvin stopped moving, Corban was able to place him in handcuffs, after which he “was
compliant.” In the district court, Marvin admitted that “[a]t
the time the deputies restrained him, [he] was uncooperative
1It is undisputed that this knife was a box cutter, which Marvin and
his mother have both explained is a common farm tool.
4 No. 22-2757
but he was not threatening or violent.” He claims he suffered
a concussion and a broken toe from the encounter.
B. Pretrial Proceedings
Marvin filed this lawsuit on June 10, 2020. He brought
claims under 42 U.S.C. § 1983 against all three deputies for
unlawful entry and excessive force, in violation of his Fourth
Amendment rights. He also brought excessive force claims
under Indiana state law. At the close of discovery, the deputies moved for summary judgment on all claims. The district
court granted the motion in part and denied it in part. 2
First, the court dismissed the unlawful entry claims
against Corban, because it was undisputed that he had not
helped the other deputies pull Marvin from his house. The
court also dismissed the excessive force claims against
Lawson-Rulli, who was not involved in tasing or hitting
Marvin. The district court concluded that without personal
involvement in the alleged violations, and absent a showing
that the deputies could be vicariously liable as supervisors,
these claims against Corban and Lawson-Rulli could not
survive.
Next, the court considered Marvin’s unlawful entry claims
as to Lawson-Rulli and Holcomb. Taking the evidence in the
light most favorable to Marvin, the court held that a reasonable jury could find that the deputies entered Marvin’s home
to arrest him. Furthermore, drawing all reasonable inferences
in Marvin’s favor, a reasonable person could find that no exigent circumstances justified this warrantless entry because
2 The district court also granted summary judgment on claims against
the Sheriff’s Department, which are not at issue in this appeal.
No. 22-2757 5
the only weapon Marvin was known to have—his box cutter—had just been taken from him. Accordingly, the court denied summary judgment on the claims of warrantless entry,
leaving the issue for trial.
Finally, the court considered the excessive force claim. Because the deputies had probable cause to believe that Marvin
had committed a battery against his mother and that he might
be suicidal, because he admitted he was resisting arrest, and
because he did not respond to the initial use of the taser, the
court determined that Corban and Holcomb’s use of force was
reasonable as a matter of law. With this determination, the
court granted summary judgment to Corban and Holcomb on
Marvin’s excessive force claims, under both § 1983 and Indiana state law.
C. Trial
Marvin’s unlawful entry claims against Holcomb and
Lawson-Rulli proceeded to a jury trial. At the start of the trial,
the district court gave several preliminary jury instructions on
the Fourth Amendment without objection. The court first explained that warrantless entries into the home are presumed
unreasonable without consent, before giving the following instructions:
7. If there is no consent, a warrantless entry is still reasonable when law enforcement officers have probable
cause for an arrest and “exigent circumstances” exist.
Probable cause … for an arrest exists if, at the moment
the arrest was made, a reasonable person in Defendants’ position would have believed that Plaintiff had
committed or was committing a crime. In making this
decision, you should consider what Defendants knew
6 No. 22-2757
and the reasonably trustworthy information Defendants had received.
…
Exigent circumstances include emergency situations in
which a law enforcement officer has a reasonable and
good faith belief that a serious threat to the officer’s
safety or the safety of others is present. The officer may
enter for the purposes of insuring or protecting the of-
ficer’s wellbeing and the wellbeing of others.
The burden is on the Plaintiff to prove that an entry
was unreasonable.
8. Under the Fourth Amendment, the point where the
home begins must be identified by inquiry into reasonable expectations of privacy. A reasonable expectation
of privacy exists when (1) the plaintiff exhibits an actual expectation of privacy (subjective) and, (2) the expectation is one that society is prepared to recognize as
reasonable (objective).
At the close of evidence, the court discussed the final jury
instructions—including the preliminary instructions quoted
above, which had already been read to the jury. At that time,
Marvin’s counsel objected for the first time to the language of
Jury Instruction 8.3 The district court overruled the objection,
and the jury heard these instructions a second time before returning a verdict for the defendants.
3
This instruction was number 8 in the preliminary instructions and
number 9 in the final instructions.
No. 22-2757 7
II. Analysis
On appeal, Marvin challenges both the jury’s decision at
trial and the district court’s grant of summary judgment. Because the jury’s decision informs part of our summary judgment analysis, we begin with the argument for a new trial.
A. Trial and Jury Instructions
Marvin first contends that he deserves a new trial on his
unlawful entry claims because the district court erred in giving Jury Instruction 8. “We review challenges to jury instructions de novo. Nevertheless, the district court is afforded substantial discretion with respect to the precise wording of instructions so long as the final result, read as a whole, completely and correctly states the law.” United States v. Chanu, 40
F.4th 528, 542 (7th Cir. 2022) (cleaned up). “This inquiry requires us to first determine whether an instruction misstates
or insufficiently states the law and, if legally improper, then
to determine whether the instruction could produce prejudice
by … confusing or misleading” the jury. Guzman v. City of Chicago,
689 F.3d 740, 745 (7th Cir. 2012) (citation omitted).
Marvin argues that the language in Jury Instruction 8—
“the point where the home begins must be identified by inquiry into reasonable expectations of privacy”—so misled the
jury as to warrant a new trial. We begin, as Guzman requires,
with the question of whether this instruction accurately states
the law. This is not a clear-cut inquiry. On the one hand, Jury
Instruction 8 is an almost word-for-word quote from this
Court’s opinion in Sparing v. Village of Olympia Fields:
The lines [of when intrusion into a home begins] are
not so clear, however, because exactly where outside
ends and where the home begins is not a point
8 No. 22-2757
immediately obvious. Splitting fractions of an inch can
be a very treacherous endeavor, producing arbitrary
results. But we need not pull out our rulers and begin
to measure. Under the Fourth Amendment, the point
must be identified by inquiry into reasonable expectations of privacy.
266 F.3d 684, 689 (7th Cir. 2001). 4 On the other hand, “more
recent Fourth Amendment cases have clarified that the test
most often associated with legitimate expectations of privacy
… supplements, rather than displaces, the traditional
property-based understanding of the Fourth Amendment.”
Byrd v. United States,
138 S. Ct. 1518, 1526 (2018) (cleaned up);
see also Lange v. California,
141 S. Ct. 2011, 2018 (2021) (the
Fourth Amendment “draws a firm line at the entrance to the
house”) (cleaned up); Florida v. Jardines,
569 U.S. 1, 6 (2013)
(“This right would be of little practical value if the State’s
agents could stand in a home’s porch or side garden and trawl
for evidence with impunity; the right to retreat would be
significantly diminished if the police could enter a man’s
property to observe his repose from just outside the front
window.”); Kyllo v. United States,
533 U.S. 27, 34 (2001)
4 Marvin’s specific argument was that Jury Instruction 8 was inaccurate or misleading because it failed to take into account our ruling in
United States v. Berkowitz. In Berkowitz, we held that when an arrestee opens
the door after police have knocked, he “has not forfeited his privacy interest in the home; he has not relinquished his right to close the door on the
unwanted visitors.” 927 F.2d 1376, 1387 (7th Cir. 1991). But in Sparing, we
considered and applied Berkowitz in crafting the standard outlined above.
266 F.3d at 689–90. To that end, Marvin’s argument is wrong on its face.
Nevertheless, we note our concerns with Sparing above for consideration
at a later date.
No. 22-2757 9
(expressing concerns with “physical intrusion[s] into …
constitutionally protected area[s]”) (cleaned up). This leaves
us skeptical that Sparing’s conception of the threshold of the
home as a malleable concept remains good law. To the
contrary, it seems that the exact physical threshold of the
home is highly relevant to the Fourth Amendment inquiry.
But we need not answer that question today. Turning to
Guzman’s second step, and reading the instructions as a
whole, see Saathoff v. Davis, 826 F.3d 925, 932 (7th Cir. 2016),
we are confident that Jury Instruction 8 was not prejudicial to
Marvin. Holcomb and Lawson-Rulli never argued to the jury
that Marvin had relinquished any expectation of privacy in
his doorway—they argued that exigent circumstances justi-
fied warrantless entry through that doorway. It is unquestionably an accurate statement of the law that exigent circumstances can justify warrantless entry. See Lange, 141 S. Ct. at
2017. And the district court explained as much in Jury Instruction 7. In other words, whether Marvin had relinquished his
right to privacy in the doorway—meaning a warrant would
ordinarily be required for entry—was irrelevant. The sole
point of Holcomb and Lawson-Rulli’s argument was that an
exception to that warrant requirement applied.
Because Marvin has failed to show prejudice, there are no
grounds to overturn the jury’s verdict.
B. Summary Judgment
Marvin’s next arguments focus on the district court’s grant
of summary judgment on two of his claims. “We review [a]
summary-judgment order de novo, construing the evidence
and drawing inferences in [the nonmovant]’s favor.” Pain Ctr.
10 No. 22-2757
of SE Ind. LLC v. Origin Healthcare Sols. LLC, 893 F.3d 454, 459
(7th Cir. 2018) (citation omitted).
1. Use of Force
We now turn to the grant of summary judgment on
Marvin’s excessive force claims. The district court held that
the force used to subdue Marvin was reasonable as a matter
of law, foreclosing both his federal and state law excessive
force claims. 5 On appeal, Marvin insists that there are genuine
issues of material fact regarding the amount of force used and
whether it was justified. 6 In support, he points to the facts
pleaded in his unverified amended complaint. But Marvin appeals a grant of summary judgment. He cannot create a genuine dispute of material fact by relying on allegations; he
must point to admissible evidence in the record. Est. of Perry
v. Wenzel, 872 F.3d 439, 461 (7th Cir. 2017). Because Marvin
5
The Court of Appeals of Indiana has held that the reasonableness
analysis for state law excessive force claims is coextensive with reasonableness under the Fourth Amendment. Brooks v. Anderson Police Dep't, 975
N.E.2d 395, 399 (Ind. Ct. App. 2012) (analyzing use of force under
Ind.
Code § 35-41-3-3(b)). Accordingly, the holdings on his Fourth Amendment
claims are dispositive as to his state law claims.
6He also suggested for the first time at oral argument that the force
used was per se excessive because his arrest was unlawful. Arguments
raised for the first time at oral argument are forfeited. Harden v. Marion
Cnty. Sheriff's Dep't, 799 F.3d 857, 863 (7th Cir. 2015). And at any rate, this
argument is wrong. Marvin cites Carlson v. Bukovic, for this proposition.
621 F.3d 610, 622 n.19 (7th Cir. 2010). But that exact footnote makes clear
that excessive force claims are not determined by presence or lack of probable cause.
Id. They must be considered under the totality of the circumstances,
id., exactly as the district court did in this case.
No. 22-2757 11
has failed to carry that burden, we will not disturb the judgment of the district court.
2. Personal Involvement
Finally, Marvin appeals the district court’s grant of summary judgment in favor of Corban and Lawson-Rulli for lack
of personal involvement in the unlawful entry and use of excessive force, respectively. Marvin contends that this was in
error because both men “witnessed,” “condoned,” and
“failed to act to prevent those violations.” But without an underlying constitutional or statutory violation, there can be no
§ 1983 liability. And we have already explained that Marvin
has shown no viable reason to overturn the jury’s verdict or
the district court’s holding. Accordingly, this argument, too,
must fail.
III. Conclusion
In light of the jury’s verdict on the unlawful entry claims
and Marvin’s failure to create a factual dispute regarding his
excessive force claims, he has failed to prove that the defendants violated his constitutional rights. The judgment of the
district court is
AFFIRMED.
