In the

United States Court of Appeals
                  For the Seventh Circuit

No. 11-3904

S COTT R ABIN ,
                                                     Plaintiff-Appellee,
                                   v.

M ICHAEL F LYNN, T ODD K NEPPER,
JOHN Q UINLAN, et al.,
                                              Defendants-Appellants.


              Appeal from the United States District Court
         for the Northern District of Illinois, Eastern Division.
               No. 1:09-cv-08049—Elaine Bucklo, Judge.



         A RGUED A PRIL 2, 2013—D ECIDED JULY 9, 2013



  Before R OVNER, W ILLIAMS, and SYKES, Circuit Judges.
  W ILLIAMS, Circuit Judge. After the police noticed
Plaintiff Scott Rabin carrying a holstered gun on his hip
in public, he was handcuffed and detained for about one-
and-a-half hours while the officers sought to confirm
the validity of his carrying license. None of the three
detaining officers were familiar with the unique license
Rabin had on hand, one carried primarily by private
detectives and security officers. When it was finally
2                                              No. 11-3904

confirmed that Rabin’s license was legitimate, he was
released. Rabin then sued the individual officers for
unlawful arrest and excessive force, arguing that the
officers should have known what that license was and
should have released him as soon as he presented it. The
district court denied the officers’ motion for summary
judgment to the extent that it sought qualified immunity
for both claims.
  We find that the officers are entitled to qualified immu-
nity on the unlawful arrest claim, because even if the
officers had known what that type of license was, it still
would have been reasonable under clearly established
law for them to detain Rabin while they verified the
legitimacy of a license to carry a deadly weapon. Though
the length of Rabin’s detention was unfortunate, it was
largely caused by the government’s failure to have an
efficient system of license verification. As for Rabin’s
excessive force claims, which allege that the unneces-
sary tightness of the handcuffs exacerbated his pre-
existing medical conditions, the evidence shows that
Rabin only told Deputy Sheriff Todd Knepper about his
medical issues. So while Knepper is not entitled to quali-
fied immunity on that claim, the other two officers
are. Therefore we affirm the district court’s denial of
qualified immunity for Knepper on the excessive force
claim, but reverse the district court’s denial of qualified
immunity for the rest of the claims.


                   I. BACKGROUND
 Because the officers moved for summary judgment,
we construe the facts in favor of the plaintiff. On Decem-
No. 11-3904                                                         3

ber 19, 2009, Plaintiff Scott Rabin, working as a licensed
private investigator, was serving a court order on a regis-
tered corporate agent at an office complex in Buffalo
Grove, Illinois. Deputy Michael Flynn, who was also
serving process in that area, saw that Rabin was wearing
a holstered gun on his hip. Flynn stopped Rabin and
asked if he had a gun. Rabin said yes, explained that he
was a licensed private investigator, and presented a
carrying license called a “tan card” (formally called a
“firearm control card”).1 It is undisputed that Rabin’s tan
card legally authorized Rabin to carry a gun at the time
he was stopped by Flynn. See 225 ILCS 447/35-35.
  Flynn, however, did not know what a tan card was. So
he confiscated Rabin’s gun, which was fully loaded, and
made a radio call to his dispatcher asking him to run
the tan card through a system called LEADS (“Law En-
forcement Agencies Data System”). The dispatcher said
he could not verify the card through LEADS, that the
tan card “might be a concealed carry card,” and that he
would call the “Springfield desk.” After a few minutes,
Flynn called the dispatcher again to see if Springfield


1
  The firearm control card is called a “tan card” because of the
unique tan color of the card. See Haywood v. City of Chicago,

, 715 (7th Cir. 2004) (a “ ‘tan card’ . . . certifies that
the cardholder, being employed by a licensed security
agency . . . and having received firearms training, may carry
a weapon while working or commuting”). Rabin also
presented Flynn a Private Detective License and a Firearm
Owner’s Identification Card, but these cards did not indep-
endently authorize Rabin to carry a firearm and are not
directly relevant to our analysis.
4                                              No. 11-3904

knew anything about the tan card, and was told that it
did not.
  Deputy Sheriff Todd Knepper, who had heard on the
radio that Flynn was with a man with a gun, arrived on the
scene, confirmed that Rabin was the person who was
armed, then handcuffed and searched him. Rabin re-
peated to Flynn and Knepper that he was authorized to
carry the gun, but Knepper also did not know what a
tan card was and put Rabin into the back of Knepper’s
vehicle.
  Deputy Sheriff John Quinlan then arrived in a “cage”
car. Flynn updated him on the situation, but Quinlan
also did not know what a tan card was. Knepper brought
Rabin out of his vehicle and put him in Quinlan’s cage
car for transport to the police station. Rabin then told
the three officers that his handcuffs were “tight.” Quinlan
removed the handcuffs and placed his own handcuffs
on Rabin (the parties agree that switching handcuffs in
this manner is normal when someone is being trans-
ported to the station). Rabin then asked Knepper if the
handcuffs could be left off, told him that he had a “bad
neck” and a “bad hand in the past,” and that the second
pair was even tighter than the first pair. Knepper did not
do anything about the handcuffs, and Rabin was left in
the cage car for about 25 minutes. During this time, Rabin
tried to get the officers’ attention from within the closed
car and yelled a couple times, “Can you please come
here?”, but no one responded. Quinlan then removed
the handcuffs and put Rabin in a non-cage squad car.
Rabin was taken to the Buffalo Grove Police Department,
a 30-minute drive.
No. 11-3904                                             5

  Eventually, the Lake County State’s Attorney’s Office
confirmed that Rabin could lawfully carry the gun. (There
is nothing in the record that explains how exactly
Rabin’s tan card was verified, or how the State’s Attor-
ney’s Office came to be involved in the verification pro-
cess.) Rabin was then released. (Rabin’s brief asserts
that the tan card was verified before his 30-minute trip
to the police station, but none of the brief’s citations
supports such a fact or inference.) Construing the facts
in the light most favorable to Rabin, he was detained for
a total of about an hour-and-a-half, and it is undisputed
that Rabin acted in a cooperative manner during the
entire incident. Afterwards, Rabin allegedly suffered
swelling and bruising to his wrists, muscle spasms in his
neck, and needed to see a hand surgeon. He also had
surgery on his neck to deal with the pains related to
these injuries.
  Rabin sued Flynn, Knepper, Quinlan, and other defen-
dants including Cook County pursuant to 42 U.S.C. § 1983,
for unlawful arrest and excessive force in violation of
the Fourth Amendment. The defendants filed a motion
for summary judgment, which the district court denied
in relevant part, finding that Flynn, Knepper, and Quinlan
were not entitled to qualified immunity. This appeal
concerns solely the district court’s denial of qualified
immunity for the three individual officers.


                     II. ANALYSIS
  “The doctrine of qualified immunity protects govern-
ment officials from liability for civil damages when their
conduct does not violate clearly established statutory
6                                               No. 11-3904

or constitutional rights of which a reasonable person
would have known.” Humphries v. Milwaukee Cnty., 

, 1006 (7th Cir. 2012) (citations and quotation
marks omitted). To be clearly established at the time of
the challenged conduct, the right’s contours must be
“sufficiently clear that every reasonable official would
have understood that what he is doing violates that
right,” and “existing precedent must have placed the
statutory or constitutional question beyond debate.” 

internal quotation marks omitted). This
standard “protects the balance between vindication of
constitutional rights and government officials’ effective
performance of their duties by ensuring that officials can
reasonably . . . anticipate when their conduct may give rise
to liability for damages.” Reichle v. Howards, 

, 2093 (2012) (internal quotation marks and citation
omitted). “[A] court may grant qualified immunity on
the ground that a purported right was not ‘clearly estab-
lished’ by prior case law without first resolving
whether the purported right exists.” 

(citing Pearson v. Callahan, 

, 236
(2009)). The plaintiff carries the burden of defeating the
qualified immunity defense, and we review the district
court’s grant of summary judgment on the basis of quali-
fied immunity de novo. 

here, the denial
of qualified immunity was based on an issue of law,
we have jurisdiction to consider appeals from such
denials. Hernandez v. Cook Cnty. Sheriff’s Office, 

, 912 (7th Cir. 2011).
No. 11-3904                                                    7

    A. The Officers Are Entitled to Qualified Immunity
       On Rabin’s Wrongful Arrest Claim
   Generally speaking, the Fourth Amendment permits
officers to perform an investigatory stop if they have a
reasonable and articulable suspicion of wrongdoing.
Jewett v. Anders, 

, 823 (7th Cir. 2008). In evalu-
ating the reasonableness of an investigatory stop, we
examine whether the “ ‘officer’s action was justified at
its inception’ ” and “ ‘whether it was reasonably related in
scope to the circumstances which justified the interfer-
ence in the first place.’ ” 

v. Ohio, 

, 20 (1968)). When an officer’s use of force during
such a Terry stop becomes so disproportionate to the
purpose of such a stop in light of the surrounding cir-
cumstances—and the purpose may include ensuring
the safety of the officers or others—then the encounter
becomes a formal arrest (which must then be justified
by probable cause). 

United States v.
Adamson, 

, 520 (7th Cir. 2006). “There is no
bright-line rule as to how long an investigative deten-
tion may last; instead we look to whether the police
diligently pursued a means of investigating that was
likely to confirm or dispel quickly their suspicions.” 

2
  The parties frame the dispute as being about whether the
officers’ initial investigatory stop ever became a formal arrest,
but the core of the dispute is really over whether Rabin’s
presentation of his tan card should have been enough to
assure the officers that Rabin was acting lawfully. If it was,
                                                  (continued...)
8                                                  No. 11-3904

  Rabin acknowledges that Flynn’s initial investigatory
stop of Rabin was “justified at its inception” because
Rabin was visibly carrying a weapon, but argues that his
detention became unlawful as soon as he presented his
tan card, because any initial suspicion of wrongdoing or
danger should have been immediately dispelled. He
argues that the officers should have known that the
relevant statute clearly authorizes tan card holders to
carry concealed firearms in public. The defendants
respond that officers cannot be expected to know every
single provision of the law, including obscure exemp-
tions to the unlawful public carrying statute that covers
private detectives, nor should they be expected to antici-
pate affirmative defenses (they assert that the tan card
is like an affirmative defense) that might excuse sus-
pected misbehavior.
  We agree with Rabin that a police officer’s suspicion
of wrongdoing that is premised on a mistake of law
cannot justify a Terry stop. We held in United States v.
McDonald, 

(7th Cir. 2006) that a “police
officer’s mistake of law cannot support probable cause to
conduct a stop,” 

however understandable that
mistake of law might be, and we later applied that rule to


(...continued)
then the officers lacked both reasonable suspicion and
probable cause to continue detaining Rabin, whether or not
Rabin’s detention is considered a Terry stop or a formal
arrest. If not, then reasonable suspicion along with safety con-
siderations may have been enough to justify a Terry deten-
tion while the license was being verified.
No. 11-3904                                                9

the Terry stop context. See, e.g., United States v. Tyler,

, 411 (7th Cir. 2008). This principle, however,
does not help Rabin because it only makes sense in situa-
tions where a reasonable officer would know all the
facts that he or she needs to determine whether the sus-
pected activity is unlawful. For instance, in Pritchard
v. Hamilton Township Bd. of Trustees, 424 Fed. Appx. 492,
506 (6th Cir. May 25, 2011), a case relied upon by both
Rabin and the district court, the officers arrested an
underage individual for consuming alcohol, but knew
full well that he was drinking alcohol with his father. The
Sixth Circuit found that the officers’ ignorance of the
law—that Ohio law allowed underage drinking under
the supervision of a parent—was no excuse for their
arrest given the facts that they knew. See 

If, however, a reasonable officer would not have known
that the supervising adult was actually his parent, it
may not have been unreasonable to temporarily detain
the teenager while reasonable steps were taken to
promptly verify the adult’s parental status.
  In this case, even if the officers should have known
what a tan card was, the officers still did not know (or
have reason to know) all the relevant facts to determine
whether Rabin could lawfully carry a gun in public 3 —
specifically, whether Rabin’s tan card was legitimate.
Under these circumstances, it would not be clearly unrea-
sonable for an officer to believe that releasing an indi-



3
  The relevant events took place before Moore v. Madigan, 

(7th Cir. 2012) was decided.
10                                              No. 11-3904

vidual that may be unauthorized to carry a deadly weapon
would present an unacceptable risk of danger to them-
selves or the public. See 

(“In evalu-
ating whether the force that an officer used to
effectuate the investigatory stop was so disproportionate
to the purpose of such a stop as to convert the
encounter into a full arrest, we consider whether ‘the
surrounding circumstances g[a]ve rise to a justifiable
fear of personal safety’ on the part of the officer . . . .”
(citation omitted)); United States v. Stewart, 

,
1084-85 (7th Cir. 2004) (investigatory stop can be
justified where the suspect is “potentially dangerous”); see
also Schubert v. City of Springfield, 

, 503 (1st
Cir. 2009) (“Just as an officer is justified in attempting
to confirm the validity of a driver’s license, such a
routine check is also valid and prudent regarding a
gun license.”). And though we are troubled by the use
of handcuffs in the context of a Terry stop even after
Rabin’s gun (the primary source of danger) had been
confiscated, an officer could have reasonably believed
under clearly established law at that time that handcuffs
may be used during a Terry stop when dangerous
weapons are generally involved. See, e.g., 

. But see Ramos v. City of Chicago, ___ F.3d ___,

, at *4 (7th Cir. May 24, 2013) (“The
proliferation of cases in this court in which ‘Terry’ stops
involve handcuffs and ever-increasing wait times in
police vehicles is disturbing, and we would caution law
enforcement officers that the acceptability of handcuffs
in some cases does not signal that the restraint is not a
significant consideration in determining the nature of
No. 11-3904                                                    11

the stop.”). Though Rabin’s brief suggests that the
officers should have simply let him go as soon as he
presented his tan card, he fails to point to any case
clearly establishing that officers are required to
take such documents at face value, especially when the
authorization to carry a fully loaded handgun is at
stake. In other words, Rabin does not show that the
individual officers failed to “diligently pursue[] a means
of investigating that was likely to confirm or dispel
quickly their suspicions” that Rabin was not authorized
to carry a gun. 

.
  At oral argument, Rabin’s counsel acknowledged
that officers may reasonably attempt to verify the legiti-
macy of a gun license before releasing a license-holder.
But Rabin asserts that the officers could have instantly
verified the tan card. He says that there is a “publicly
accessible database through which the [tan] card can be
verified within seconds” whose web address “appears
on the face of the [tan] card itself,” and that “Plaintiff
even told the officers to look at the card for the verifying
information, but they refused to do so.” However,
neither of these factual assertions (made at oral argument
and in his brief) are supported by any citations to the
record. Perhaps for good reason, because the photocopy
of the front and back of Rabin’s tan card found in the
record did not have any web address on it at all. See Dist.
Ct. Dkt. Nos. 67-3 at 69-70; 64-1 at 17.4 To the extent



4
  According to that part of the record, Rabin’s Private Investiga-
tor License did include a website, but nothing on that card
                                                   (continued...)
12                                              No. 11-3904

some other part of the record indicates otherwise, it is
counsel’s responsibility to point it out. See Gross v. Town
of Cicero, 

, 702 (7th Cir. 2010) (“As we have
repeated time and again, ‘Judges are not like pigs,
hunting for truffles buried in [the record].’ ” (citation
omitted)). And because the web address was not on
Rabin’s tan card, his assertion that he told the officers to
“look at the card” for the verifying information is irrele-
vant even if it were true.
  We do not intend to suggest that taking one-and-a-
half hours to simply verify a gun license is reasonable
under these circumstances. Cf. Illinois v. Caballes, 

, 407 (2005) (“A seizure that is justified solely by
the interest in issuing a warning ticket to the driver can
become unlawful if it is prolonged beyond the time
reasonably required to complete that mission.”); Arizona
v. United States, 

, 2509-10 (2012) (dis-
cussing whether state law requiring verification of immi-
gration status before release would result in unconstitu-
tional prolonged detention). But there is no evidence
that the individual officers (or their ignorance of the law)
were responsible for the prolonged verification process.
When Flynn was presented with the tan card, he did not
sit there scratching his head, but promptly turned to
other channels in an attempt to verify it. Perhaps the
police department or other relevant government agency



(...continued)
suggested that the tan card could be verified at the website
indicated in the brief.
No. 11-3904                                                  13

should have had a system in place that could more effi-
ciently verify tan cards. But Rabin does not point to
any cases clearly establishing that individual officers are
personally responsible for curing such systemic failures,
which is hard to imagine given that such failures are
likely outside their control. Cf. Thomas v. Cook Cnty.
Sheriff’s Dept., 

, 304 (7th Cir. 2009) (“If, for
instance, the officer had pled an affirmative defense
such as good faith, then the jury might have found that
the plaintiff’s constitutional rights were indeed
violated, but that the officer could not be held liable. In
that case, one can still argue that the City’s policies
caused the harm, even if the officer was not individually
culpable.”); Woodward v. Correctional Med. Servs. of Ill., Inc.,

, 929 (7th Cir. 2004) (employee’s “lack of
training and carelessness” relevant to establishing
liability of employer, even if employee was not found
liable). Rabin correctly notes that under the roughly
analogous circumstances of Schubert, decided after the
events here, the officer let the plaintiff go after a few
minutes as soon as he realized that verifying the gun
license “could take a significant amount of time,” 

, since “Massachusetts did not have a
simple way for police officers to conduct such a check.”

But even if this decision had been issued as of
the time of Rabin’s detention, it does not clearly say
that an officer’s failure to let someone go after a few
minutes under similar circumstances is a constitu-
tional violation. See also Estate of Escobedo v. Bender,

, 781 (7th Cir. 2010) (discussing limited role
of non-controlling precedent in qualified immunity
analysis).
14                                             No. 11-3904

  In sum, given the safety risks at stake, it was rea-
sonable under clearly established law for the officers to
temporarily detain Rabin pending the verification of his
gun carrying license, even if the officers had known
about the tan card exemption under the law. His pro-
longed detention was then caused by systemic failures
outside the individual officers’ control. So the officers
are entitled to qualified immunity on Rabin’s wrongful
arrest claim.


B. Officers Flynn and Quinlan Are Entitled to Qualified
   Immunity On Rabin’s Excessive Force Claim
  Rabin also asserts an excessive force claim against the
officers, alleging that his handcuffs were overly tight
and exacerbated his preexisting medical conditions.
When an officer stops or arrests an individual, some
degree of physical force may be used, but the Fourth
Amendment requires that the degree of force used be
reasonable. Stainback v. Dixon, 

, 772 (7th
Cir. 2009). “In this respect, our cases indicate that an
officer may not knowingly use handcuffs in a way that
will inflict unnecessary pain or injury on an individual
who presents little or no risk of flight or threat of in-
jury.” 

which was decided prior to
Rabin’s detention, we found that the arresting officers
did not use excessive force in that case, but we explained,
“[h]ad the Officers known of a preexisting injury or
medical condition that would have been aggravated
by handcuffing Mr. Stainback, or had Mr. Stainback
communicated to the Officers that he suffered from such
No. 11-3904                                             15

an infirmity, the Officers certainly would have been
obligated to consider that information, together with the
other relevant circumstances, in determining whether
it was appropriate to handcuff Mr. Stainback.” 

   Here, Rabin proffers evidence that he directly told
Officer Knepper about his “bad neck” and “bad hand in
the past” and that the handcuffs were overly tight,5 and
it was undisputed that Rabin was cooperative the entire
time. Given that Rabin was already handcuffed, no rea-
sonable officer who was aware of Rabin’s medical condi-
tions would have believed that exacerbating Rabin’s
medical problems (i.e., by keeping the handcuffs as tight
as they were) was necessary to ensure safety, and that
doing so would be permissible under clearly established
law. Therefore, Knepper is not entitled to qualified im-
munity at this summary judgment stage, and he will
have an opportunity at trial to dispute Rabin’s story or
explain why he did not loosen the handcuffs. Officers
Flynn and Quinlan, however, are entitled to qualified
immunity because there is no evidence that Rabin specifi-
cally made them aware of his medical history, and his
other generalized complaints of pain are insufficient
to show excessive force. See 

(“These generalized complaints, without any elabora-
tion regarding a preexisting injury or other infirmity,
would not have placed a reasonable officer on notice
that Mr. Stainback would be injured by these actions.”).


5
  Rabin’s brief asserts that he told Quinlan about the bad
neck and bad hand injury, but the record citation indicates
that he actually told Knepper about it.
16                                             No. 11-3904

                   III. CONCLUSION
  For the above-stated reasons, we R EVERSE the district
court’s denial of the defendants’ motion for summary
judgment to the extent that it sought qualified immunity
for Flynn, Knepper, and Quinlan for the wrongful arrest
claim and for Flynn and Quinlan for the excessive
force claim. We A FFIRM the district court’s denial of the
motion for qualified immunity for Knepper for the ex-
cessive force claim. And we R EMAND this case for pro-
ceedings consistent with this opinion.




  R OVNER, Circuit Judge, concurring. Given this circuit’s
seemingly broad tolerance for the use of physical
restraints during investigatory detentions, I agree with
my colleagues that it would not have been clear to the
defendants that handcuffing Rabin and placing him in
the back of a squad car constituted an arrest that
required probable cause to believe he had committed a
crime. Consequently, the defendants are entitled to quali-
fied immunity on the wrongful arrest claim. I write sepa-
rately to explain why, in my view, the restraints placed on
Rabin were not justified by the circumstances of this
investigatory detention and transformed the deputies’
No. 11-3904                                                  17

encounter with Rabin from a Terry stop into a wrongful
arrest. As a result of our decision in Moore v. Madigan, 

(7th Cir. 2012), reh’g en banc denied, 

(7th Cir. 2013), the carrying of firearms in public by
private citizens may soon become much more common
than it heretofore has been in Illinois, and if so there are
likely to be many more investigatory stops like this one
to ascertain an individual’s authority to carry a firearm.
Law enforcement agents must understand and respect
the limits on such Terry stops, and we must be clear
on what those limits are.
   The Supreme Court’s decision in Terry v. Ohio recog-
nized a “narrowly drawn” exception to the traditional
rule that seizures of the person must be supported by
probable cause to believe the individual has committed
a crime. 

, 27, 

, 1883 (1968). See
Florida v. Royer, 

, 498-99, 

, 1324-25
(1983); Dunaway v. New York, 

, 208-210, 

, 2254-55 (1979); United States v. Longmire, 

,
417 (7th Cir. 1985). A Terry stop is meant to be a minimal
detention, lasting only so long, and intruding on the
stopped individual’s liberty only so much, as is necessary
for an officer to either confirm or dispel a reasonable
suspicion that the stopped individual “has been, is, or
is about to be engaged in criminal activity.” United States
v. Bullock, 

, 1014-15 (7th Cir. 2011) (quoting
United States v. Vega, 

, 515 (7th Cir. 1995)); see
also United States v. Brignoni-Ponce, 

, 881-82, 

, 2580 (1975); Adams v. Williams, 

,
145-46, 

, 1923 (1972). It is because an in-
vestigatory stop is meant to be brief and minimally intru-
18                                               No. 11-3904

sive that the Supreme Court authorized such a deten-
tion on a showing of reasonable suspicion rather than
probable cause. See United States v. Place, 

, 703,

, 2642 (1983); 

,
99 S. Ct. at 2255-56. The reasonableness, and hence
the lawfulness, of the stop therefore depend in part on
the degree of restraint imposed on the individual.

. “Police restraint may
become so intrusive that, while not technically an arrest,
it becomes tantamount to an arrest requiring probable
cause.” 

(citing United States v. Tilmon, 

, 1224 (7th Cir. 1994)) (internal quotation marks
omitted).
  “Handcuffs are generally recognized as a hallmark of a
formal arrest.” United States v. Newton, 

, 676
(2d Cir. 2004) (coll. cases). Certainly this is true as a
matter of appearance: because handcuffing is a typical
step in effectuating an arrest, people see someone in
handcuffs and reflexively think, “That person is going
to jail.” And no one in handcuffs thinks, “I am free to
leave.” More to the point, he is not free to leave. Short
of locking someone behind bars, there is no more
concrete and effective way to limit his movement and
thereby deprive him of his physical freedom. Once in
cuffs, a person’s ability to terminate the encounter and
continue on his way depends not only on cooperating
with the officer and dispelling his suspicions, but on the
officer’s willingness to remove the handcuffs and
restore his liberty. All of this is doubly true when the
handcuffed individual is placed in the back of a police
No. 11-3904                                                  19

car. 1 See United States v. Smith, 

, 1097 (7th
Cir. 1993) (Once the defendant was patted down,
handcuffed, and told to sit in a specific place by the side
of the road, he “was not free to go anywhere. His move-
ment was curtailed as if he were handcuffed to a chair
in a detective’s office or placed in a holding pen in a
station house or put behind bars.”); United States v.
Brown, 233 F. App’x 564, 567 (7th Cir. 2007) (non-
precedential decision) (“It is obvious that Brown was
seized; his movements were restrained when he sat
handcuffed and locked in the squad car and he clearly
was not free to leave. Moreover, the officers had initially
acquired physical control over him at the time they
tackled him, sprayed him with pepper spray, and cuffed


1
   My focus in this concurrence will be on the use of hand-
cuffs. Rabin, of course, was not only handcuffed but placed in
the back of a caged squad car. Needless to say, placing
someone in the back of a police car against his will is itself
a restraint on his freedom. Much of what I have to say about
the decision to place Rabin in handcuffs will therefore apply
to the additional decision to secure him in the squad car.
There may well be situations in which having someone sit in
a police car will be justified by something other than a need
to restrain him: to protect him from others, to shelter him from
the weather, or to proceed with the Terry stop in a more conve-
nient setting, where the officer questioning the person has
access to a computer terminal, for example. No such justifica-
tion is evident from the facts in this case; it appears that
Rabin was placed in the car solely as a means of restraining
him. That additional restraint only compounded the intrusive-
ness of the encounter.
20                                             No. 11-3904

him. Obviously, any reasonable person in Brown’s posi-
tion at that time in the arrest scenario would have con-
sidered himself or herself restrained, beyond the
limited Terry-like stop, and under ‘arrest.’ ”).
  Nonetheless, beginning with our decision in United
States v. Glenna, 

(7th Cir. 1989), we have
recognized a very limited set of circumstances in which
police may place an individual in handcuffs without
thereby converting a Terry stop into a de facto arrest. Our
holding in Glenna was founded on evidence that gave
police officers reason to be concerned for their safety
as they confronted the defendant and attempted to de-
termine whether he was engaged in a crime. The
police were observing Glenna based on a Teletype
alert indicating that he was involved in a recent drug
deal, that he had $100,000 in cash with him, that he was
armed, and that he also had some type of explosive
device. An officer stopped Glenna when he pulled his
van into a gas station, an environment in which fire-
arms and explosives posed even more of a danger than
they otherwise would. When, early in the encounter,
the officer asked Glenna to produce his identification,
Glenna reached into his pocket and the officer observed
a bulge in the pocket which he correctly suspected might
be an ammunition clip. The officer immediately grabbed
Glenna’s hand and removed the loaded clip from the
pocket. At that point, the officer placed Glenna in hand-
cuffs before frisking him. The patdown revealed that
Glenna also had a small, explosive “cherry bomb” in a
pants pocket. In view of the Teletype indicating that
Glenna was potentially armed and dangerous, coupled
No. 11-3904                                                  21

with the initial discovery of a loaded clip of ammunition
on his person, we concluded that it was reasonable to
believe that Glenna posed a risk to the safety of the officer
who initiated the stop and the others who soon arrived
on the scene. That risk entitled officers not only to hand-
cuff Glenna while he was patted down (whereupon
the “cherry bomb” was discovered) but to keep him in
handcuffs while the officers attempted to confirm or
dispel the suspicions of criminal activity raised by the
Teletype (which efforts ultimately led to the discovery
of a pipe bomb in the van Glenna was driving):
    [W]e are unwilling to hold that under Terry,
    the placing of a suspect in handcuffs without
    probable cause to arrest is always unlawful. If, in
    a rare case, “common sense and ordinary human
    experience” convince us that an officer believed
    reasonably that an investigative stop could be
    effectuated safely only in this manner, see [United
    States v.] Sharpe, 470 U.S. [675] at 685, 105 S. Ct.
    [1568] at 1574 [(1985)], “we will not substitute
    our judgment for that of the officers as to the
    best methods to investigate.” See [United States v.]
    Boden, 854 F.2d [983] at 993[(7th Cir. 

(emphasis in original).
  Subsequent cases have likewise sustained the use of
handcuffs during Terry stops when the circumstances
suggested either that an individual stopped for ques-
tioning might have a weapon or that he might be
involved in criminal activity often associated with vio-
lence. See, e.g., United States v. Smith, 

, 632 (7th
22                                             No. 11-3904

Cir. 2012) (suspected bank robber left alone with
single agent while other agents chased his fleeing ac-
complices); United States v. Hopewell, 498 F. App’x 609,
611 (7th Cir. 2012) (non-precedential decision) (officers
had tip defendant might be concealing gun); 

(officers were searching for drugs, and
drugs are associated with dangerous and violent
behavior and thus warrant extra caution); United States
v. Snowden, 250 F. App’x 175, 181 (7th Cir. 2007) (non-
precedential decision) (agents had reason to believe
defendant was about to engage in substantial drug trans-
action); United States v. Shoals, 

, 853 (7th
Cir. 2007) (per curiam) (“inherent danger” posed by
defendant, who matched late-hour 911 report of indi-
vidual engaging in gunfire, was wearing coat indoors,
and had attempted to hide from police); United States v.
Stewart, 

, 1085 (7th Cir. 2004) (defendant
matched description of armed perpetrator of recent
bank robbery and behaved suspiciously); United States
v. Hendricks, 

, 1004 (7th Cir. 2003) (defendant
took abnormally long time to respond to request for
identification and vehicle registration, he fumbled with
something officer could not see, and ammunition
magazine was found on his person during patdown);
United States v. James, 

, 875 (7th Cir. 1994)
(police had received tip of suspicious activity in hotel
room, a loud argument had been heard there, and gun
and cash were discovered in room), cert. granted & judg-
ment vacated on other grounds, 

, 

(1995).
  A second line of cases has relied on the risk of flight
to justify the use of handcuffs while the detained indi-
No. 11-3904                                             23

vidual is being questioned. See, e.g., 

(officers had reason to believe suspected cocaine
dealer presented flight risk in addition to safety risk,
given his knowledge that police had warrant to search
residence where he made his cocaine sales); United States
v. Carlisle, 

, 756 (7th Cir. 2010) (defendant
attempted to escape house with backpack during drug
sweep); United States v. Wilson, 

, 231-32 (7th
Cir. 1993) (defendant had attempted to flee); Tom v.
Voida, 

, 958-59 (7th Cir. 1992) (defendant
had disobeyed multiple orders to stop).
  These decisions are consistent with our observation
in Glenna that it will be the rare case in which it will be
necessary, and thus consistent with the purpose and
scope of a Terry stop, to temporarily immobilize a
person with handcuffs while a police officer attempts
to confirm or dispel a reasonable suspicion of criminal
activity. There is an obvious dissonance between the use
of handcuffs, which signals an arrest, and a Terry stop,
which is meant to be a modest seizure short of and
distinct from an arrest. Authorizing the use of hand-
cuffs when the purpose of the Terry stop cannot be accom-
plished without them—when the person being ques-
tioned would otherwise flee, or when he would otherwise
pose a danger to the officers doing the questioning—
reconciles the conflict in a logical way. See 

(Flaum, J., dissenting). Those cases should
be few and far between, and the facts justifying the ap-
plication of an arrest-like restraint should be con-
crete and compelling. See United States v. Chaidez, 

, 1197-98 (7th Cir. 1990) (the more intrusive the
24                                              No. 11-3904

seizure, the more justification for the seizure there
must be).
  Yet, despite the limits evident in the foregoing deci-
sions, we occasionally make statements suggesting that
the use of handcuffs during Terry stops is something less
than a rare occurrence requiring particularized factual
justification. We sometimes remark, for example, that the
use of handcuffs by itself does not necessarily transform
an investigatory stop into a de facto arrest, without
adding that handcuffs will be justified only in the
unusual case—almost as if we are indulging a rebuttable
presumption that handcuffs are consistent with a
standard Terry stop. See, e.g., 

;

; United States v. Robinson, 

, 782 n.3 (7th Cir. 1994); 

. On
other occasions we have observed that “[f]or better or
for worse, the trend [of cases granting greater latitude
to employ force during a Terry stop] has led to the permit-
ting of the use of handcuffs, the placing of suspects
in police cruisers, the drawing of weapons and other
measures of force more traditionally associated with
arrest than with investigatory detention,” as if to suggest
that we will, inevitably, continue to broaden the range
of circumstances in which forcible restraint may be
used during Terry stops. 

;

; United States v. Askew, 

,
507 (7th Cir. 2005); see also 

(“The
permissible scope of a Terry stop has expanded in
recent years to include the use of handcuffs and
temporary detentions in squad cars.”). When divorced
from their context, statements along these lines could be
No. 11-3904                                              25

read to imply that we no longer regard the use of hand-
cuffs during Terry stops as the exception but rather
the rule.
  It would be unfortunate (and mistaken) for police
departments and their attorneys to take that message
from our case law. In fact, we have always demanded
that there be some reason for police officers to believe
that handcuffing a stopped individual is necessary to
effectuate the legitimate purpose of an investigatory
detention, be it to prevent an uncooperative person
from fleeing or to preserve officer safety. Even the one
case in this line that represents a departure from its
predecessors ultimately makes this same point. In
United States v. Yang, 

, 950 (7th Cir. 2002), we
sustained the use of handcuffs while a defendant
suspected of attempting to smuggle opium into the
country was transported from a domestic airport
terminal to the international terminal for questioning.
We candidly acknowledged that the circumstances
were different from those in prior cases, in that the de-
fendant did not pose a threat to the officers questioning
him nor did he pose a flight risk. 

Yet,
logistically it was necessary for investigative purposes
to transport the defendant by van to the international
terminal, where drug testing equipment was available.
And the ride from terminal to terminal took the
defendant across the airport tarmac, a highly-restricted
area in which the presence of any unauthorized, unre-
strained individual posed a safety risk. 

eralized but heightened need for safety in an especially
sensitive environment thus supported the use of hand-
26                                              No. 11-3904

cuffs notwithstanding the absence of any indication
that this defendant in particular posed a threat. In that
regard, circumstances warranting the temporary use of
handcuffs in Yang were “quite unique.” 

in distinguishing our other cases, ultimately confirms
that the range of circumstances in which handcuffs may
be used is narrow. Even if those circumstances have
turned out to be not quite as rare as we envisioned in
Glenna, they are nonetheless limited and definite.
  However, given our failure as a court to make explicit
the limits which I believe are implicit in the facts and
rationale of our decisions, along with our occasionally
uncabined language regarding the use of handcuffs
during Terry stops, I must join my colleagues in holding
that the defendants here are entitled to qualified im-
munity. The defendants are entitled to such immu-
nity unless the right they are accused of violating was
clearly established at the time of their actions, e.g.,
Hernandez v. Sheahan, 

, 817 (7th Cir. 2013); and
whether that right was clearly established must be an-
swered with reference to the specific facts of the case
rather than at a high level of generality, e.g., Surita v.
Hyde, 

, 868 (7th Cir. 2011); Borello v. Allison,

, 750 (7th Cir. 2006); Carlson v. Gorecki, 

, 466 (7th Cir. 2004). Thus, the question is not
whether it was clear, in December 2009, that Rabin had
a Fourth Amendment right not to be arrested absent
probable cause to believe he had committed a crime;
that much is beyond dispute. The question, rather, is
whether it would have been clear to a reasonable police
officer that handcuffing someone in the course of a Terry
No. 11-3904                                             27

stop initiated to determine that person’s authority to
carry a firearm in public—when the firearm has al-
ready been taken from him—transformed the stop into a
de facto arrest requiring probable cause. I agree that the
answer to that question is “no.” Determining whether
and when an investigatory detention becomes an arrest is
a highly fact-dependent inquiry. E.g., 

. We have described the line between the two as
“dim and wavering.” United States v. Lechuga, 

, 1039-40 (7th Cir. 1991). And I can identify no
prior case making clear that the use of handcuffs in
the scenario presented here would take an investigatory
detention across that difficult-to-discern boundary. In
view of our statements about the “trend” toward
allowing the use of handcuffs and other forcible
restraints during Terry stops, and our continuing reaf-
firmation that the use of handcuffs will not necessarily
transform such a stop into an arrest, I believe that a
reasonable officer could have thought the use of
handcuffs was consistent with the permissible purpose
and scope of the stop, particularly one involving a fire-
arm. Officer safety has been a recurring theme in our cases
sustaining the use of handcuffs during investigatory
detentions. And although Rabin claimed a legal right to
carry his firearm—which he had readily surrendered to
Flynn at the beginning of the encounter—an officer
might have reasonably thought that he was free to hand-
cuff any individual being investigated for the possible
illegal possession of a weapon in the name of safety,
without transforming the investigatory stop into an arrest.
  That said, I am compelled to point out that none of the
concerns we have previously cited to authorize the use
28                                              No. 11-3904

of handcuffs during a Terry stop was present here. The
sole basis for the detention of Rabin was his carrying of
a firearm. There was no report or ground on which to
suspect that he had misused the weapon or committed
any crime apart from the (potentially) illegal possession
of a firearm in public; the police stopped Rabin on no
basis other than the fact that he had a gun. He exhibited
no suspicious, evasive, or aggressive behavior. He was
calm and cooperative, responded appropriately to
Flynn’s inquiries, and presented to Flynn evidence of
his identity, his status as a licensed private investigator,
and his authority to carry a firearm. Knepper would
later confirm that Rabin had served a court order on a
tenant of the building, just as he had represented to
Flynn. Whatever risk to officer safety Rabin’s possession
of the weapon might have posed at the outset of the
encounter was eliminated when Flynn took possession
of the weapon. Nothing suspicious was discovered
during the subsequent frisk of Rabin’s person. Apart
from the possibility that Rabin’s possession of the weapon
in public might have been illegal (notwithstanding his
Firearm Control Card or “Tan card”), there was no basis
to believe that he posed an independent threat to the
officers. Rabin never made any attempt to flee. In short,
there was no need to handcuff Rabin and then secure
him in a police car in order to effectuate the purpose of
the Terry stop; the notion that physical restraint was
justified became altogether spurious once other deputies
had joined Flynn at the scene. Rabin’s authority to carry
the firearm could have been ascertained without
handcuffing him and locking him away in a caged
squad car.
No. 11-3904                                                 29

   To conclude otherwise would be to suggest that
carrying a firearm in public will routinely justify not
only a Terry stop but the highly intrusive, physical
restraint on liberty that handcuffing represents. I can,
of course, appreciate the need for police caution in ap-
proaching someone they know or suspect is armed. But
if the carrying of concealed firearms in Illinois is on the
verge of being legalized broadly, as our decision in
Moore may portend, then the possession of a gun in
public cannot by itself be reason to suspect that a
stopped person poses a danger that justifies an arrest-
like restraint. Once such an individual claims the right
to lawfully carry the firearm, presents documentation
to that effect, and has surrendered the firearm to the
officer without incident while his authority is being
checked, I can see no need for physical restraint absent
some additional information suggesting he or she poses
a potential danger to the officer or is about to flee.
Short of jailing a person, I can imagine no greater intrus-
ion on his freedom than placing him in manacles and
installing him in the back of a caged police car. See 

, 88 S. Ct. at 1873 (“ ‘No right is held more
sacred, or is more carefully guarded, by the common law,
than the right of every individual to the possession and
control of his own person, free from all restraint or the
interference of others, unless by clear and unquestionable
authority of law.’ ”) (quoting Union Pac. R.R. Co. v. Botsford,

, 251, 

, 1001 (1891)); Arizona v.
Evans, 

, 23, 

, 1197 (1995) (Stevens,
J., dissenting) (citing the mistaken arrest, handcuffing,
and search of an individual in a public street as an
“offense to the dignity of the citizen”); Love v. City of
30                                             No. 11-3904

Port Clinton, 

, 167 (Ohio 1988) (“The acts
of subduing and handcuffing are undoubtedly offensive
to a reasonable sense of personal dignity.”) (internal
quotation marks omitted). Allowing such restraints to
be imposed absent some indicia of danger would be a
heavy tax on the right to carry a firearm; a right that
comes at such an expense arguably is no right at all.
  A final word about the length of the stop in this case.
Rabin was detained for 90 minutes, which was far too
long given the purpose of the stop. Cf. 

, 103 S. Ct. at 2645-46 (90-minute detention of de-
fendant’s luggage was excessive under Terry: “we
have never approved a seizure of the person for the
prolonged 90-minute period involved here and do not
do so on the facts presented by this case”). The delay
in releasing Rabin was due to the fact none of the
three deputies knew what a Tan card was and no one
(including the dispatcher) knew how to verify
Rabin’s authorization to carry a firearm. This pervasive
ignorance suggests a failure on the part of their em-
ployer to train them adequately. I presume that this
case represents an aberration, and that if and when the
carrying of firearms by private citizens becomes more
common in Illinois, confirming an individual’s authority
to carry a firearm in public will become a routine and
quick task. (I also presume that Illinois will issue a more
reliable means of identifying those authorized to carry
weapons; the Tan card, which does not bear a photo-
graph of the bearer, is little more reliable and secure
from forgery than a library card.) Still, there will no
doubt be future instances in which there is some discrep-
ancy in the gun holder’s identification or there is some
No. 11-3904                                                  31

system failure that makes it impossible for an officer to
promptly confirm an individual’s authorization to carry
a firearm. As my colleagues point out, Rabin’s counsel
conceded at oral argument that the defendants could
properly detain Rabin until such time as they confirmed
the legitimacy of his Tan card. That concession makes
it unnecessary for us to decide in this case whether
the deputies were obligated to release Rabin once it
became clear that they could not quickly ascertain
whether he was legally authorized to carry a gun. I would
just note, as my colleagues do, that authorities in this
situation always have the option of releasing the indi-
vidual and retaining his firearm while they investigate
his authority to carry the gun. See, e.g., Schubert v. City of
Springfield, 

, 503 (1st Cir. 2009) (when, after
five minutes of checking, officer was unable to confirm
validity of detainee’s gun license due to lack of centralized
database, officer told detainee he was free to go and
could retrieve his gun and gun license from the police
department at a later time). Detaining an individual’s
firearm typically will not interfere with his freedom to
the extent that detaining a traveler’s luggage might, cf.

, 103 S. Ct. at 2645, and would
be consistent with the Supreme Court’s admonition that
“the investigative methods employed should be the
least intrusive means reasonably available to verify or
dispel the officer’s suspicion in a short period of time.”

, 103 S. Ct. at 1325-26.
  It is for these reasons that I concur in the court’s decision.

                             7-9-13