Rice claims that he is entitled to further proceedings because “two salient facts remain in dispute which cannot free the police officers from the burden of trial: 1) what was used to strike the Plaintiff, and 2) how hard he was struck.” The district court agreed. In reality, however, no dispute exists. Rice bears the burden to prove that the police officers used excessive force, but he fails to set forth any evidence that the force used was excessive.
See Brownell, 950 F.2d at 1293 (“a party who bears the burden of proof on a particular issue ... must set forth specific facts showing that there is a genuine issue of material fact.... [t]hus, in the absence of any evidence of specific wrongdoing, [the plaintiff's] excessive force claim is speculative and does not raise any material issue of fact for trial.”) Rice does not even speculate about the manner in which he was hit. He asserts only that he was hit with enough force to knock him down. If he did inquire of the police officers during discovery about their knowledge of what hit him, he does not share their answer with this court. If mere speculation cannot create a question of fact precluding summary judgment,
Harrington v. New England Mutual Life Ins. Co., 873 F.2d 166, 169 (7th Cir.1989), neither can a refusal to speculate. Just because an unfortunately (perhaps purposely) unclear record leaves open a universe of possibilities about the manner of Rice's recapture does not mean a trial is necessary to sort through the hypothetical possibilities. Under the facts as presented, the police officers are entitled to qualified immunity because they had no reason to believe they were violating Rice's constitutional rights.