Qualified Immunity After Prolonged Standoffs: No Clearly Established Fourth Amendment Bar to Warrantless Arrest or 40mm Foam Rounds Absent Closely Analogous Precedent

I. Introduction

In Frederick Jackson v. City of Madison (7th Cir. May 28, 2026), Frederick D. Jackson sued the City of Madison and several police officers under 42 U.S.C. § 1983 after a late-night standoff ended with police forcibly breaching the home he was occupying and shooting him multiple times with “non-lethal” 40 millimeter foam rounds before arresting him. Jackson alleged Fourth and Fourteenth Amendment violations, principally challenging (1) his warrantless in-home arrest and (2) the use of force when Officers Joseph Weberpal and Rene Gonzalez fired foam rounds at him.

The central appellate issues were whether officers lacked probable cause or exigent circumstances for a warrantless in-home arrest, and whether the foam-round shots constituted excessive force under clearly established law sufficient to overcome qualified immunity.

II. Summary of the Opinion

The Seventh Circuit affirmed summary judgment for defendants. It held:

  • Failure to intervene and property damage claims were waived due to undeveloped appellate briefing and related defects (including causation and standing problems for property damage).
  • Probable cause existed to arrest Jackson for Wisconsin disorderly conduct and reckless endangerment based on the totality of what officers heard and observed that night, plus information relayed from the command post.
  • Even if exigent circumstances were debatable after a multi-hour standoff, officers received qualified immunity because no binding precedent clearly established that exigency “dissipates” in the particular context presented.
  • As to excessive force, the court held qualified immunity applied to the three 40mm foam-round shots because Jackson failed to identify a sufficiently similar case placing the unlawfulness of this force “beyond debate” under the circumstances.

A concurrence (Jackson-Akiwumi, J.) agreed judgment was compelled, emphasizing the Supreme Court’s “recent decision in Zorn v. Linton, 146 S. Ct. 926, 929 (2026)” and highlighting the tension between qualified immunity’s “clearly established” requirement and constitutional accountability.

III. Analysis

A. Precedents Cited

1. Standards of review, waiver, and the role of the record

  • James v. Hale, 959 F.3d 307 (7th Cir. 2020) and Palmer v. Franz, 928 F.3d 560 (7th Cir. 2019): de novo review of summary judgment.
  • McCottrell v. White, 933 F.3d 651 (7th Cir. 2019) and Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986): view facts in the nonmovant’s favor; no credibility weighing.
  • United States v. Berkowitz, 927 F.2d 1376 (7th Cir. 1991), plus Hernandez v. Cook Cnty. Sheriff’s Off., 634 F.3d 906 (7th Cir. 2011), Fields v. City of Chicago, 981 F.3d 534 (7th Cir. 2020), and Moderson v. City of Neenah, 137 F.4th 611 (7th Cir. 2025): undeveloped arguments are waived even if constitutional.
  • Cooper v. Retrieval-Masters Creditors Bureau, Inc., 42 F.4th 675 (7th Cir. 2022), quoting Williams v. Dieball, 724 F.3d 957 (7th Cir. 2013), and Yee v. City of Escondido, 503 U.S. 519 (1992): arguments (including new factual theories) raised first on appeal are waived.
  • Neita v. City of Chicago, 148 F.4th 916 (7th Cir. 2025), Williams v. Airborne Exp., Inc., 521 F.3d 765 (7th Cir. 2008), and Keller v. United States, 58 F.3d 1194 (7th Cir. 1995): parties are bound by admissions/stipulations in the summary-judgment record.

These authorities mattered because the panel rejected several of Jackson’s appellate theories as waived (or contradicted by his own admissions), narrowing the case to qualified immunity analysis on the surviving claims.

2. Failure to intervene and property damage under § 1983

  • Lanigan v. Vill. of East Hazel Crest, 110 F.3d 467 (7th Cir. 1997) (quoting Yang v. Hardin, 37 F.3d 282 (7th Cir. 1994)): elements of a failure-to-intervene claim (knowledge of a constitutional violation plus a realistic opportunity to stop it).
  • Colbert v. City of Chicago, 851 F.3d 649 (7th Cir. 2017): Fourth/Fourteenth basis for property damage claims and the need to show causation connecting named officers to the damage.
  • Smith v. Rowe, 761 F.2d 360 (7th Cir. 1985) (quoting Crowder v. Lash, 687 F.2d 996 (7th Cir. 1982)): supervisory liability requires deliberate/reckless disregard and direction/knowledge/consent—mere command presence is not enough.
  • Darif v. Holder, 739 F.3d 329 (7th Cir. 2014): new arguments in reply are waived.
  • United States v. Rodriguez, 888 F.2d 519 (7th Cir. 1989): Fourth Amendment analysis generally is not driven by “niceties of property or marital law.”

The court used these cases to dispose of claims without reaching merits: Jackson’s briefing was skeletal, and his property theory also collided with a basic standing/cognizable-interest problem (the house belonged to Sherry).

3. Probable cause and hindsight limits

  • Abbott v. Sangamon County, 705 F.3d 706 (7th Cir. 2013) (quoting Carmichael v. Vill. of Palatine, 605 F.3d 451 (7th Cir. 2010)): totality-of-circumstances test; objective “reasonable, prudent person” standard based on what officers perceived at the time.
  • Guzman v. City of Chicago, 565 F.3d 393 (7th Cir. 2009): no hindsight in probable-cause determinations.
  • United States v. Hansmeier, 867 F.3d 807 (7th Cir. 2017) (citing Devenpeck v. Alford, 543 U.S. 146 (2004)): later-discovered facts cannot create or undermine probable cause.
  • United States v. Reed, 443 F.3d 600 (7th Cir. 2006): later evidence of guilt/innocence does not retroactively validate/invalidate probable cause.
  • Sroga v. Weiglen, 649 F.3d 604 (7th Cir. 2011): reinforces time-of-arrest focus.
  • Hunter v. Bryant, 502 U.S. 224 (1991), via Abbott: qualified immunity protects reasonable mistakes about probable cause (“arguable probable cause”).

These authorities guided the court to uphold probable cause notwithstanding Jackson’s later acquittal and later investigation results, and also to reject his “officers lied” theory (waived and contradicted by his admissions).

4. Warrantless in-home arrest, exigent circumstances, and standoffs

  • Payton v. New York, 445 U.S. 573 (1980) and Steagald v. United States, 451 U.S. 204 (1981): warrantless in-home arrests are presumptively unconstitutional absent consent or exigent circumstances.
  • Minnesota v. Olson, 495 U.S. 91 (1990): overnight guests have Fourth Amendment protection in the home; also a key comparison point on whether exigency existed in a surrounded-residence scenario.
  • Jones by Jones v. Webb, 45 F.3d 178 (7th Cir. 1995): even with exigency, the arrest must be supported by probable cause.
  • Fitzgerald v. Santoro, 707 F.3d 725 (7th Cir. 2013) (quoting Michigan v. Tyler, 436 U.S. 499 (1978)): definition of exigency—compelling need and no time for a warrant; also recognizes objectively reasonable fear of self-harm/violence as possible exigency.
  • United States v. Diaz, 814 F.2d 454 (7th Cir. 1987) (quoting United States v. Acevedo, 627 F.2d 68 (7th Cir. 1980)) and United States v. Rivera, 248 F.3d 677 (7th Cir. 2001): exigency requires weighing urgent risks against the home’s strong privacy interest; government bears a heavy burden.
  • Welsh v. Wisconsin, 466 U.S. 740 (1984) (quoting United States v. U.S. District Court (Keith), 407 U.S. 297 (1972)): exigent circumstances are “few” and “carefully delineated.”
  • Brigham City v. Stuart, 547 U.S. 398 (2006): emergency aid exception for seriously injured/threatened persons.
  • Kentucky v. King, 563 U.S. 452 (2011): the Constitution does not impose a duty to seek a warrant “at the earliest possible time.”
  • Sheik-Abdi v. McClellan, 37 F.3d 1240 (7th Cir. 1994): once lawfully inside, a separate warrant is not necessarily required to effect an otherwise lawful arrest within.
  • Fisher v. City of San Jose, 558 F.3d 1069 (9th Cir. 2009) (en banc): persuasive authority holding that once exigency justifies warrantless seizure in the home and police are actively completing the arrest, an arrest warrant need not be obtained during the ongoing standoff process.
  • United States v. Walker, 143 F.4th 889 (7th Cir. 2025): reinforces home-related Fourth Amendment protections (cited with Olson).

Olson and Fisher framed the “clearly established” problem: the law did not decisively answer whether a multi-hour standoff with an allegedly armed, intoxicated suspect eliminates (or preserves) exigency for a warrantless in-home arrest. The panel treated that uncertainty as dispositive under qualified immunity.

5. Qualified immunity and the “clearly established” requirement (majority and concurrence)

  • Ashcroft v. al-Kidd, 563 U.S. 731 (2011): two-prong qualified immunity framework; courts may resolve on “clearly established” alone.
  • District of Columbia v. Wesby, 583 U.S. 48 (2018) (quoting Saucier v. Katz, 533 U.S. 194 (2001)): the right must be defined with high specificity; “especially important in the Fourth Amendment context.”
  • Mullenix v. Luna, 577 U.S. 7 (2015) (per curiam): reiterates specificity and difficulty of applying doctrine to fast-moving facts.
  • Sabo v. Erickson, 128 F.4th 836 (7th Cir. 2025) (en banc) (quoting Malley v. Briggs, 475 U.S. 335 (1986)): qualified immunity protects all but the plainly incompetent or knowing lawbreakers; “beyond debate” standard.
  • McGrath v. Gillis, 44 F.3d 567 (7th Cir. 1995) (quoting Rakovich v. Wade, 850 F.2d 1180 (7th Cir. 1988) (en banc)): courts may consult available decisional law beyond binding precedent to evaluate clarity.
  • Anderson v. Creighton, 483 U.S. 635 (1987) and Reichle v. Howards, 566 U.S. 658 (2012): reinforce that illegality must be apparent in light of existing law.
  • Zorn v. Linton, 146 S. Ct. 926 (2026): emphasized in the concurrence as “cement[ing]” the heightened requirement that plaintiffs identify prior cases sufficiently advising officers that conduct was unconstitutional in similar circumstances.

The majority’s operative rule is conventional but applied rigorously: absent a closely fact-matched precedent, qualified immunity shields officers even where constitutional doubt is plausible. The concurrence reads Zorn v. Linton as sharpening that approach into near-case-on-all-fours necessity, highlighting systemic implications.

6. Excessive force, less-lethal munitions, and body-camera evidence

  • Graham v. Connor, 490 U.S. 386 (1989): objective reasonableness factors (severity, immediate threat, resistance/flight).
  • Becker v. Elfreich, 821 F.3d 920 (7th Cir. 2016) (quoting Payne v. Pauley, 337 F.3d 767 (7th Cir. 2003)): excessive force when greater force than reasonably necessary to make arrest.
  • Siler v. City of Kenosha, 957 F.3d 751 (7th Cir. 2020) (quoting Horton v. Pobjecky, 883 F.3d 941 (7th Cir. 2018)): reasonableness judged from officer perspective amid duress and rapid change; if material facts undisputed, reasonableness is a question of law.
  • Cibulka v. City of Madison, 992 F.3d 633 (7th Cir. 2021) (quoting Weinmann v. McClone, 787 F.3d 444 (7th Cir. 2015)): to show clearly established law in excessive force, plaintiff typically needs a closely analogous case; “plainly excessive” without analog is rare.
  • White v. Pauly, 580 U.S. 73 (2017) and Kisela v. Hughes, 584 U.S. 100 (2018) (per curiam): insist on similar-facts precedent; excessive-force outcomes are highly fact-dependent.
  • Phillips v. Community Ins. Corp., 678 F.3d 513 (7th Cir. 2012): non-lethal rounds are high-end less-lethal force and “not to be deployed lightly”; denied qualified immunity where officers fired multiple non-lethal bullets at a non-threatening, non-fleeing, highly intoxicated driver whose threat was substantially contained.
  • Omdahl v. Lindholm, 170 F.3d 730 (7th Cir. 1999): discusses bean bag rounds and the lethal/non-lethal categorization’s relevance for immunity analysis.
  • Mercado v. City of Orlando, 407 F.3d 1152 (11th Cir. 2005): example of courts looking to non-lethal-force caselaw for non-lethal force contexts.
  • Estate of Escobedo v. Bender, 600 F.3d 770 (7th Cir. 2010): denied qualified immunity where officers used extreme tear gas and flash-bang tactics in a suicidal-person scenario; distinguished here because threats and tools differed.
  • Miller v. Gonzalez, 761 F.3d 822 (7th Cir. 2014), Johnson v. Scott, 576 F.3d 658 (7th Cir. 2009), and Dockery v. Blackburn, 911 F.3d 458 (7th Cir. 2018): significant force is barred against a subdued, passively resisting suspect; but “active resistance” can include belligerent noncompliance, affecting both merits and clearly established analysis.
  • Pam v. City of Evansville, 154 F.4th 523 (7th Cir. 2025): where conduct lies on the “hazy border,” an on-point analog is needed to defeat qualified immunity.
  • Smith v. Finkley, 10 F.4th 725 (7th Cir. 2021) (quoting Scott v. Harris, 550 U.S. 372 (2007)): courts may reject a party’s narrative if “blatantly contradicted” by unambiguous video evidence.

The heart of the force analysis was the gap between broad principles (“don’t use significant force on passive resistance”) and the Supreme Court’s and Seventh Circuit’s insistence on factually similar precedent for qualified immunity. The panel found Phillips v. Community Ins. Corp. instructive but materially distinguishable because Jackson was believed armed, near potential weapons, and in close proximity to officers, unlike the stationary driver whose threat was “substantially contained.”

B. Legal Reasoning

1. Waiver as a merits gatekeeper

The decision illustrates how appellate waiver doctrine can be outcome-determinative in civil-rights litigation. By invoking United States v. Berkowitz and its progeny, the court required Jackson to engage the doctrinal elements of failure-to-intervene claims (Lanigan v. Vill. of East Hazel Crest) and causation/standing for property damage (Colbert v. City of Chicago). Bare assertions and “skeletal” citations (including to Smith v. Rowe) were insufficient.

2. Probable cause: objective, time-of-arrest, and insulated from later events

For probable cause, the court applied the objective “totality” lens from Abbott v. Sangamon County and rejected hindsight attacks under Guzman v. City of Chicago, United States v. Hansmeier, Devenpeck v. Alford, and United States v. Reed. Jackson’s acquittal and later investigatory gaps (e.g., lack of shell casings) were legally irrelevant to what officers reasonably believed that night.

Critically, the court also relied on record admissions—binding under Neita v. City of Chicago and Williams v. Airborne Exp., Inc.—that multiple officers heard “pop” sounds interpreted as gunshots and relayed those impressions to Sergeant Loredo. That foreclosed Jackson’s late-breaking fabrication theory.

3. Exigent circumstances vs. qualified immunity: the court chooses the “clearly established” off-ramp

On the warrantless in-home arrest, the court accepted the constitutional framework of Payton v. New York and Steagald v. United States, recognized Jackson’s Fourth Amendment standing as an overnight guest under Minnesota v. Olson, and articulated the “heavy burden” and narrowness of exigency under Welsh v. Wisconsin, Fitzgerald v. Santoro, United States v. Diaz, and United States v. Rivera.

But rather than definitively declaring whether five hours of standoff time extinguished any “now or never” urgency, the panel affirmed on qualified immunity grounds. Under Ashcroft v. al-Kidd, it could (and did) avoid resolving the constitutional merits because Jackson could not identify precedent establishing that “exigent circumstances dissipate” in a multi-hour standoff involving an allegedly armed and dangerous suspect. The comparison between Minnesota v. Olson (no exigency found on its facts) and Fisher v. City of San Jose (exigency sufficient across a prolonged standoff) underscored uncertainty—uncertainty that, under District of Columbia v. Wesby and Sabo v. Erickson, accrues to the officer’s benefit.

4. Excessive force: “closely analogous” precedent requirement controls the outcome

The court evaluated the foam rounds under Graham v. Connor and Seventh Circuit excessive-force standards (Becker v. Elfreich; Siler v. City of Kenosha). Yet the dispositive question was qualified immunity, not abstract reasonableness. The panel treated “less-lethal” rounds as serious force (per Phillips v. Community Ins. Corp.), but concluded Jackson lacked a White v. Pauly/Kisela v. Hughes-type analogous case “squarely governing” his facts.

The court distinguished Phillips because Jackson was believed armed, was close to officers, could potentially access weapons from inside the home, and displayed belligerent noncompliance. Even if the third shot (as Jackson framed it) came at a moment of relative stillness, the court found that the scenario fell within the “hazy border” of Pam v. City of Evansville, making a close analog necessary to overcome immunity.

C. Impact

  • Prolonged standoff arrests: The opinion strengthens the practical reality that, absent Supreme Court or tightly analogous circuit precedent, plaintiffs will struggle to defeat qualified immunity when police act without an arrest warrant during multi-hour barricade incidents involving perceived firearms risk. The majority’s use of Fisher v. City of San Jose as persuasive “other law” signals that courts may treat standoff dynamics as a domain of doctrinal uncertainty—an uncertainty that favors officers under Wesby.
  • Less-lethal munitions litigation: By distinguishing Phillips v. Community Ins. Corp. and rejecting non-lethal analogs that do not match close-proximity, indoor, suspected-armed-standoff facts, the decision may narrow the range of cases in which plaintiffs can successfully argue that 40mm impact munitions violate clearly established law.
  • Appellate briefing discipline: The waiver holdings reinforce that civil-rights appellants must develop element-by-element arguments (failure to intervene; causation; standing) and preserve factual theories in the district court, or risk losing claims irrespective of factual sympathy.
  • Qualified immunity’s trajectory: The concurrence’s reliance on Zorn v. Linton frames this case as part of a broader doctrinal shift toward demanding near-identity in precedent, potentially leaving novel constitutional fact patterns unremedied.

IV. Complex Concepts Simplified

  • 42 U.S.C. § 1983: A federal statute allowing individuals to sue state/local officials for violating federal constitutional rights.
  • Probable cause: Not proof beyond a reasonable doubt—just enough objective facts that would lead a reasonable person to believe a crime occurred (Abbott v. Sangamon County).
  • Exigent circumstances: A narrow exception allowing warrantless home entry when there is an urgent need and no time to obtain a warrant (e.g., emergency aid, hot pursuit) (Fitzgerald v. Santoro; Welsh v. Wisconsin).
  • Qualified immunity: Even if a right was violated, officers are not liable unless prior case law made it clear—at a high level of factual specificity—that their conduct was unlawful (District of Columbia v. Wesby; Sabo v. Erickson), a point the concurrence ties to Zorn v. Linton.
  • “Clearly established” law: A plaintiff generally must point to precedent where an officer in similar circumstances was held to violate the Constitution (White v. Pauly; Kisela v. Hughes).
  • Waiver on appeal: Courts will not address arguments that are conclusory, undeveloped, or raised too late (United States v. Berkowitz; Cooper v. Retrieval-Masters Creditors Bureau, Inc.).
  • Video evidence control: If body-camera video clearly contradicts a party’s version of events, courts may rely on the video (Smith v. Finkley; Scott v. Harris).

V. Conclusion

Jackson v. City of Madison is a qualified-immunity-driven decision: the panel did not need to declare definitively whether a five-hour standoff eliminated exigency or whether the third foam-round shot was unconstitutional. Instead, it held that Jackson could not overcome the “clearly established” barrier because existing precedent did not place the challenged conduct beyond debate in a sufficiently similar factual setting. The concurrence underscores the systemic consequence of that approach—especially in light of Zorn v. Linton—namely, that novel fact patterns may evade constitutional adjudication and civil remedies even when the underlying police conduct appears difficult to justify on first principles.