Jacobs, Willie v. City of Chicago

Mitchell, she against his actions tion for however, If, imper- acted for he

will lose. shuffled reasons and then political

missible needs, then her to suit his

things around violated. If rights were Amendment

First mixed, then under were

his motives v. in Rakovich banc decision

court’s en (7th Cir.1987),

Wade, the one established analysis will be

correct Doyle, City School Dist. v. Healthy

in Mt. (1977): must plaintiff constitutionally protected

show that motivating substantial

conduct decision, employer’s public

factor in the (to escape liability) the defendant

and then reached the that it would have

must show decision even absence

same 429 U.S. at conduct.

protected Wade, 568; 850 F.2d at Rakovich Neal, 17 F.3d also Gooden v.

1189. See (7th Cir.1994).

925, 928 affirm the district court’s therefore

We motion deny Judge Randolph’s

decision quali- summary judgment based on the immunity

fied defense.

Affirmed. Siller, and Linda JACOBS

Willie

Plaintiffs-Appellants, CHICAGO, municipal corpo OF

CITY Sergeant

ration; Michael estate Buckner,

Garner; Quintero, Officers Garrido; Keith,

McLean,

Metropolitan Group Of Enforcement Martin, Sowinski, Huff,

ficers

McIntyre, Defendants-Appellees.

No. 99-2507. Appeals,

United States Court

Seventh Circuit.

Argued Jan. 1, 2000.

Decided June (argued),

Meera Werth Office of the Counsel, Corporation Division, Appeals IL, Chicago, for defendants-appellees. FLAUM, EASTERBROOK, Before RIPPLE, Judges. Circuit FLAUM, Circuit Judge.

Willie Jacobs and brought Linda Siller § claims under 42 against U.S.C. City Chicago and several individual Chi- (the cago police officers “Defendant Offi- cers”), alleging violations of their Fourth right Amendment to be free from unrea- sonable searches seizures and exces- sive use of force. The district court dis- missed the complaint under Federal Rule 12(b)(6), of Civil Procedure finding that the enjoyed qualified defendants immunity for all of the brought against claims them. herein, For the reasons stated we reverse and remand.

I. BACKGROUND1 Plaintiffs Willie Jacobs and Linda Siller in Apartment live # 2 at 15138 Lincoln Harvey, Avenue in Illinois. There are apartments three in building at this address. The wall next to the door of each apartment by “Apt.” marked the word by followed number. apartment a Each separate has its own outside entrance and its own two gas doorbell. There are me- ters building located the outside of the providing service to the first and second apartments. floor apartments The three are each billed for separately electricity and telephone Apartment service. #2 is located on the second floor and has an outside entrance at the side of the build- ing. February

On defendant Officer Quintero Chicago Depart- of the Police (ar- Bradtke, James G. Dana L. Kurtz ment obtained a search warrant for gued), Bradtke, IL, male, Chicago, “Troy,” Soule & for 30-year-old a black and a plaintiffs-appellants. single family residence at 15138 Lincoln purposes Because this case was opinion. dismissed under Rule tions as trae for of this 12(b)(6), plaintiffs' allega- we take all of the damaged. of the belongings was is- were One Harvey. in The warrant

Avenue information, claimed to found by a Defendant Officers provided sued based on in cocaine on a dresser a informant, a small of large a amount amount confidential by grandchildren. bedroom used Jacobs’ out of the being sold of cocaine base The Defendant Officers then continued building. apartment for over three search Jacobs’ afternoon, the Defendant Of- Later that hours, home detaining Jacobs his building at apartment to the ficers went time, throughout During search. They Lincoln Avenue. executed Officers called a canine Defendant apartment, the first floor which warrant on search, dog unit to assist with the but the a door at the front of through is entered any drugs presence did not indicate the building building. The owner person. or on apartment in the Jacobs’ apartment. in this She Marie Golden lived alleges that he Jacobs suffered severe were two informed the officers there injury as a result of the Defen- emotional building, that no apartments other apartment, dant Officers’ of his search building, Troy named lived one search, during of him their detention anyone Troy. named that she did not know holding gun by and their use of force that someone also told the officers Golden Shortly his head several minutes. af- upstairs apart- named Jacobs lived incident, a heart ter this Jacobs suffered ill, having and that Jacobs was re- ment occupant attack. was also an Linda Siller cently hospital. returned from the returned apartment. She home af- Defendant searched Golden’s Officers completed ter the search had been to find apartment. property damaged. her No one was ar- The Defendant Officers then went back prosecuted or as a result of the rested building outside the and around to the side apartment building. search of the Apartment They entrance of # 2. broke filed Jacobs and Siller suit under knocking down the door without an- against City Chicago § U.S.C. nouncing police were officers Officers, claiming and the Defendant executing a search warrant. An officer rights their Fourth Amendment were vio- Jacobs, approached plaintiff sixty-year- by lated the search of their man, pointed gun old at his head. as well as the seizure Jacobs if

The officers then asked Jacobs he was against excessive use of force Jacobs. The Troy, thirty-year-old man who was the court plaintiffs’ district dismissed com- subject of the search warrant. Jacobs re- 12(b)(6), plaint under Rule that the finding Troy that he that sponded was not and no enjoyed qualified immunity for defendants Troy apartment. one named lived the all brought by plaintiffs. of the claims the provided Jacobs the officer with identifica- and now appeal.2 Jacobs Siller tion and told the that he officer needed to he sit down because felt faint. The officer II. DISCUSSION kept gun the head for over ten Jacobs’ appeal while the plaintiffs minutes other Defendant Offi- The the district began searching apartment. complaint cers court’s dismissal of their under Jacobs’ 12(b)(6) search, During ground the furni- on the that the defen several items of Rule many qualified immunity plaintiffs’ personal ture and the dants are entitled to City stipulation parties, 2. The district court dismissed the of Chi of the the district court Martin, Huff, cago as a defendant in this matter because the dismissed defendant officers Sowinski, plaintiffs allege any policy prac McIntyre. plaintiffs failed to The do any par- tice of constitutional violations would not contest the dismissal of of these Therefore, city only appeal. the liable we address render for the Defendant Offi ties on Dep’t cers’ actions in this case. See Monell v. the district court’s dismissal of the Servs., 690-91, 658, against remaining 436 98 S.Ct. Defendant Officers on U.S. of Soc. 2018, addition, (1978). immunity grounds. 56 qualified L.Ed.2d 611 on

765 them, brought against ing, by claims submitted all of the defendants and the court’s dismissal de plaintiffs, copy police We review district and a of a report, Rush-Presbyterian v. Payton defendants, novo. See by submitted in ruling on 623, Center, Medical St. Luke’s the defendants’ motion to dismiss. (7th Cir.1999). accept 625 We all of the ' 12(b) Federal Rule of Civil Procedure true and plaintiffs’ allegations as draw all states: inferences their favor. reasonable Gen If, a Corp. asserting v. on motion Capital eral Elec. Lease Resolu defense (6) 1074, Corp., 128 1080 numbered to dismiss for failure of tion F.3d Cir. 1997).3 pleading to state a upon claim which granted, relief can be matters outside op A. Consideration Matters Outside pleading presented are to and not Complaint court, excluded the motion shall plaintiffs first contend that the summary be treated as one for judge- district court erred when it sev disposed provided considered ment and of as 56, photographs eral build- Rule parties given and all shall be decision) added). pealable § (emphasis 3. We note that the dismissal of a 1983 suit Simi- 12(b)(6) a under Rule is delicate matter that larly, we need not address this issue at this approach carefully. district courts should On merely appears time. We note it that in hand, one courts cases, have been admonished that complaint may some be dismissed qualified immunity ability is the to be free 12(b)(6) qualified immunity under Rule suit, merely liability, from not a defense from grounds plaintiff where the asserts the viola- that, therefore, question immunity right tion of a broad constitutional that had possible should be decided at the earliest not been articulated at time the violation stage. County See Leatherman v. Tarrant Nar case, alleged is to have occurred. In that Unit, Intelligence cotics and Coordination claim, may plaintiff while the it stated a 163, 166, 1160, U.S. 113 S.Ct. 122 L.Ed.2d "upon granted" not is one which relief can be (1993); 511, Forsyth, v. Mitchell U.S. may properly purely court address this 526, 2806, (1985); 105 S.Ct. L.Ed.2d 411 12(b)(6). question legal under Rule See 800, 817-18, Fitzgerald, Harlow v. 457 U.S. Williams, v. 490 U.S. Neitzke (1982). 102 S.Ct. 73 L.Ed.2d 396 Our (1989). 109 S.Ct. 104 L.Ed.2d 338 held Court has that resolution of this issue However, cases, many the existence of may appropriate early as un as dismissal qualified depend immunity partic- will on the 12(b)(6). der Rule See Landstrom v. Illinois cases, given ular facts of a case. In those Servs., Dep’t Family Children and plaintiff required initially plead not fac- (7th Cir.1990). hand, On the other anticipate tual and overcome pleading requirements the notice of Rule 8 do course, (Of qualified immunity. a defense of if require plaintiff anticipate that a the as plaintiff go beyond requirements does qualified immunity by sertion of the defen plead of Rule 8 and extensive facts in antici- plead allegations dant and that will defeat pation immunity, may anof assertion of he Britton, immunity. Crawford-El court.) pleading run the risk of himself out of 574, 595, 118 S.Ct. variety The district court then has of means Toledo, (1998); L.Ed.2d 759 Gomez disposal incrementally at its to move the case 635, 639-40, 64 L.Ed.2d qualified forward in order to address the im- munity possible stage, issue at the earliest so Supreme recognized Court has the ten- that a defendant who is immune from suit is sion in area but has declined to address time, put through expense not effort and Leatherman, 166, this issue. See 507 U.S. at defending against upon of a himself claim Pelletier, 113 S.Ct. But see Behrens v. which, ultimately, granted. no relief can be 299, 306-309, 834, 516 U.S. 116 S.Ct. 133 Crawford-El, See 523 U.S. at 118 (1996) (holding L.Ed.2d 773 that “an order (noting may S.Ct. 1584 that the district court rejecting qualified immunity the defense of at reply order a to a defendant's answer under stage summary judg- either the dismissal or the 7(a) Rule or a more definite statement of the stage judgment subject ment is a ‘final’ 12(e)); plaintiff's added); under Rule Elliott v. claim appeal”) (emphasis immediate Thomas, 338, (7th Cir.1991) Mitchell, 527, 937 F.2d 345 472 U.S. at 105 S.Ct. 2806 may (holding (stating summary judgment that the “denial of a defendant's mo- summary judgment granted in the court's discretion with- tion dismissal or on district for ground qualified immunity” ap- permitting discovery). out is an 766 Immunity present all B. opportunity

reasonable Qualified to such a mo- pertinent made material occupy positions officials who State by Rule 56. tion discretionary policymaking or author with in ity acting capacity their official are rule, language of this when By plain immunity may qualified for claims photographs submitted the defendants that the officials violated the alleging state building copy plaintiff. Siegert of a rights constitutional plaintiffs and the submitted police report 231, 226, 1789, 111 S.Ct. Gilley, 500 U.S. response, in photographs their own (1991); 114 L.Ed.2d 277 Harlow v. Fitz obligated district court was to either 800, 815-16, gerald, 457 U.S. 102 S.Ct. in extraneous submissions consider the (1982). 2727, 73 L.Ed.2d 396 These offi the motion or to convert the ruling on liability civil cials “are shielded from for summary judgment one for motion to damages insofar as their conduct does not provide parties opportunity with an statutory con clearly violate established materials. See Car- supplementary submit of which a rights stitutional reasonable Stanton, 669, 671, ter v. 405 U.S. 92 S.Ct. Harlow, person would have known.” (1972). 1232, 31 L.Ed.2d 569 It is evident 818, 2727; U.S. at 102 S.Ct. see Wilson v. photo- court on the that the district relied 603, 1692, 1696, Layne, 526 U.S. 119 S.Ct. report ruling well as the graphs as (1999); Anderson v. L.Ed.2d 818 and that it did not the motion to dismiss 635, 638, 107 Creighton, 483 U.S. S.Ct. summary convert the motion to one for (1987). 3034, L.Ed.2d judgment. We hold that the district qualified To evaluate a claim of reliance on outside the court’s matters immunity, engage two-step analy we complaint ruling on the motion to dis- First, sis. we determine whether miss was error. plaintiffs’ claim states a violation of their Then, The error committed the district rights. constitutional we determine may grounds rights clearly court constitute reversal. those were for whether estab id.; World, at lished the time violation occurred. Travel All Over the Inc. v. Wilson, 1697; Khuans v. Arabia, (7th See 1423, Saudi 73 F.3d School Dist. 123 F.3d Cir.1996). However, than rather remand Cir.1997). clearly If the rights were es opin for the district court to reconsider its tablished, may the official be liable looking ion without at matters outside of monetary damages proceeds and the suit our is to compliant, practice usual de stage. If rights to the next were not termine whether the error was harmless established, clearly then the official im is by conducting analysis our own de novo from claim mune suit and the is dismissed. 12(b)(6) under the Rule stan McKnight, See Richardson dard without considering extraneous 138 L.Ed.2d 540 upon by materials relied court. district Capital, Elec. See General 128 F.3d (“[WJe may harm consider the error plaintiffs’ It is the burden to 12(b)(6) affirm if less and Rule dismissal right demonstrate that a constitutional appropriate would have been without ex clearly Kernats v. O’Sulli established. amination of the extrinsic documenta (7th Cir.1994). van, A Over, tion.”); Travel All 73 F.3d at 1430. clearly right where established is one We will affirm the district court’s dismissal right contours of the sufficient “[t]he [are] only by if we our conducting determine clear that a official ly reasonable would analysis of that own alone doing understand that what he is violates Anderson, 640, plaintiffs upon fail to state a claim right.” 483 at U.S. 3034; Wilson, granted. which relief can be 107 see 119 at S.Ct. S.Ct.

767 right particularity place whether a is scribe with to 1700. To determine be established, searched, clearly we look first control it is void. See Horton v. Califor- precedent nia, 128, and our ling Supreme 2301, Court 496 U.S. 110 S.Ct. In the own circuit decisions on issue. (1990); 110 L.Ed.2d 112 United States v. controlling precedent, we (7th Cir.1970) absence of 232, Higgins, 428 F.2d 234 survey include all relevant (“[P]robable broaden our particular cause and the de- “whether caselaw in order to determine scription place of the to be searched are caselaw there was such a clear trend requirements equal impor- essential say fair that we can with assurance tance.”); Hinton, United States 219 by a recognition right of the control (7th Cir.1955). F.2d 326 We have ling precedent merely question consistently probable held that cause to Brutsche, 881 time.” Cleveland-Perdue apartment search one in a multi-unit build- (7th Cir.1989). In some rare F.2d ing support authorizing does not a warrant cases, violation is where the constitutional Rather, building. search of the entire obvious, may patently plaintiffs not be building “when a is into divided more than any with required present the court unit, one probable residential distinct cases, analogous widespread compliance as cause determination must made for be may pre a clearly apparent with law have Butler, each unit.” United States v. previously being vented the issue from (7th Cir.1995); F.3d see also Ma- Kernats, litigated. See 35 F.3d at 1176. Garrison, 79, 85, ryland v. (1987) (stating 94 L.Ed.2d 72 ease, allege plaintiffs this police that if officers knew or should have Chicago police vio the defendant officers that a building multiple known contains Fourth clearly lated their established units,” “separate dwelling the officers are rights. Amendment Police officers con obligated any to exclude from the warrant ducting a search are state officers with probable units which do not have discretionary authority acting who are search); Hinton, cause to conduct a capacity may protect their official (“For at purposes satisfy- F.2d 325-26 immunity in qualified challeng ed suits Amendment, ing searching the Fourth two ing constitutionality of their actions. apartments building or more in the same is Anderson, at searching no different than two or more 3034. completely separate houses. Probable searching cause must be shown for each C. SEARCH or, case, apartment.”). house each Constitutionality of Search authorizing A of an warrant search Validity a. Search Warrant building fatally entire multi-unit is defec- argue Plaintiffs first the search of tive “when the warrant authorizes the their violated their Fourth search of an entire structure and the offi- rights it was not Amendment because con- do not which unit cers know contains pursuant to ducted a valid search warrant. illegal evidence of conduct.” United They allege that the warrant was invalid Johnson, States v. F.3d particularly because it did not describe the Cir.1994); Higgins, see also 428 F.2d place to be searched. only exceptions gener- 234-35. The to this “(1) al rule are when the officer knows

A warrant is valid under multiple are and believes there there units only Fourth Amendment it is based where unit, or cause, probable cause to search each “upon probable supported by Oath (2) affirmation, targets investigation particularly or describ[es] Johnson, searched, structure.” access to the entire place persons to be and the Const, 694; Hinton, see also things to be seized.” U.S. amend. TV. Where a warrant fails to de- at 326. rights in the manner in in case au Amendment which warrant they of a resi that warrant. single-family search executed

thorized the in at Lincoln Avenue located dence Garrison, Maryland Supreme In the fact, lo building In the Harvey, Illinois. the search of Garrison’s Court held that a multi-unit build address is cated at this though it was was valid even apartment separate consisting of three residential ing on a warrant that was later discov- based face, Thus, its the warrant apartments. on overbroad where the officers ered place the to be searched does not describe in that the entire third good believed faith addition, from the particularity. with in that was described building floor of in there is allegations pled complaint, single apart- warrant was a their search magistrate that a neutral no indication contraband they ment and discovered probable that there was cause found either becoming apartment before Garrison’s illegal activity being con suspect apart- that there were fact two aware or that plaintiffs’ apartment in the ducted at ments on the third floor. 480 U.S. 80- warrant, target the search had Troy, the However, 81, 107 S.Ct. 1013. the Court building. the entire access to that also stated However, validity of the warrant “[t]he known, or the officers had should [i]f on the basis of the infor must be assessed known, the third floor con- disclosed, or had a mation that the officers they apartments tained two before en- disclose, to the duty of and to discover on third living quarters tered the Garrison, issuing Magistrate.” 480 U.S. floor, and thus had been aware of not plaintiffs at 107 S.Ct. 1013. The do warrant, they would have error seeking that the officers the warrant allege obligated to limit their search to been issuing information from the concealed target’s] apartment. More- [the search magistrate they duty were under a over, recognized, they officers as the judge we disclose. Because do required were to discontinue the search validity of a warrant the benefit of “[w]ith respondent’s apartment as soon as id., hindsight”, although we conclude that they sep- discovered that there were two turned out to be overbroad warrant arate units the third floor and there- on particular because it did not describe with put notice of the risk that fore were on to be ity place searched encom in- they might erroneously be in a unit unit, passed separate dwelling plain cluded within the terms of warrant. apartment, tiffs’ for which there was no search, to authorize a it probable cause 86-87, Id. at Similarly, in 107 S.Ct. 1013. was valid at time it was issued based Higgins, States v. United we held that presented on the information the officers where the offi- search was unconstitutional magistrate.4 to the warrant, cers executed an overbroad which apart- failed to indicate which of three b. Execution Search Warrant apart- ments located the basement an searched, if argue building Plaintiffs next that even the ment was to be issued, apartments they all until searching warrant was valid when it the De- looking found the one were for. 428 fendant Officers violated their Fourth complaint, using support it it in an affidavit in of the war- From the Gates, simple procedures, appears investigation rant. See Illinois v. electric, contacting gas, as or tele- such 76 L.Ed.2d 527 company, phone would have revealed that discovery If further reveals that the is a residence 15138 Lincoln Avenue building should have known that the officers apartment building. We note that multi-unit they ap- multiple at the time contained units seeking relying officers search warrant warrant, plied the search the warrant provided by information a confidential infor- Garrison, would be invalid. obligation mant are under an to take reason- 85, 107 S.Ct. 1013. steps able before to confirm information Hinton, 234-35; see also apartment prop- not determine which was F.2d erly subject of an entire the of the warrant. The De- (holding that the search at 326 in apartments was fendant concede their brief building consisting of four Officers be- they the were fore this Court that did not where officers know unconstitutional which, any, apartment occupied by Troy if of the which was to determine unable belonged targets they the of the the time conducted the search. Fur- apartments search). thermore, nothing allega- there is in the complaint tions of the that would have led case, In the Defendant Offi this plain- a officer to conclude that reasonable executing a search warrant is cers were apartment appropriate target tiffs’ was the building located at sued for the entire of the search. Because the search of the According Lincoln Avenue. plaintiffs’ apartment ap- occurred after it in allegations pled the this complaint, in pears allegations complaint from the the apartments, of three each building consists that a reasonable officer would have dis- separate a external en through accessed n warrant, covered a fatal defect the we by “Apt.” the word trance marked that a cannot conclude search was A door by separate followed a number. that warrant. See Unit- valid execution entrance to each bell is located next to the Ramirez, ed States F.3d gas there are two meters apartment, and (“[0]nce (7th Cir.1997) mistake is dis- [a] provid of the house located the outside covered, government cannot use the the first and second ing separate service to authority ... of the warrant to conduct a plaintiffs’ apart apartments. floor The they unsupported ... that search know is and could ment was on the second floor cause.”). by probable apart the first not be reached from floor any by exiting means than by ment other c. Warrantless Search apartment, going around to the the first finally Defendant ar Officers entering through of the building, side validly if the gue that even search was door. The Defendant Officers separate warrant, it pursuant conducted was first' on in this case executed the warrant a warrantless search. properly executed as ground apartment. They floor were they assert that The Defendant Officers occupying landlord who was told exigent circumstances be were faced with building that contained apartment that drug raids such as this one during cause units and that the second floor multiple strong probability that evidence there is a occupied by a man named apartment was destroyéd. They argue will further be information, learning After this Jacobs. they probable cause to believe that had the Defendant Officers exited first search, Troy, target of the around the outside apartment, floor went apartments one of occupying building, plaintiffs’ and entered they had no building, and because by breaking down a locked door apartment it plaintiffs’ reason to believe that was not 2.” “Apt. marked with the words justified searching apartment, they were true, it Taking allegations ap- these as apartment. pears that reasonable officers should offi Where law enforcement entering plaintiffs’ discovered before Lin- cers have cause to believe building probable that the at 15138 in a activity par conducted building illegal being a multi-unit con- coln Avenue was. circumstances ex place exigent and that ticular sisting separate apartments ist, valid. may was over- a warrantless search they executing the warrant were Marshall, At the moment the Defendant Of- See United States broad. Cir.1998). Exigent cir descrip- 481-82 ficers the defect discovered searched, may probability include the they were cumstances place tion of the to be destroyed if evidence will be before obligated to cease that search could that case, L.Ed.2d 564 can be obtained from warrant search valid reveal that Id. at 482. Howev- magistrate. a neutral probable to believe police had cause er, executing officers are fact that the bare Troy conducting named was that a man illegal for narcotics is to search a warrant activity building somewhere in the illegal circum- exigent constitute not sufficient to Avenue. located at 15138 Lincoln Howev that evi- indicating facts Specific stances. er, in presented is no information the there likely destroyed must be dence is to be finding that would a of support exigent in circumstances present order for Troy occupied Apart cause that probable Wisconsin, 520 Richards v. to exist. See illegal activity # 2 or that was occur ment 385, 394, L.Ed.2d 117 S.Ct. U.S. op as ring particular apartment in that (1997). apartments two posed to one of the other in pled plaintiffs’ as the fact, In also located at that address. exigent no indication that complaint give that at Defendant Officers concede in There existed this case. circumstances search, they unable to time of the were no facts on the record that yet are as apartment determine which was the source officer’s con- support would reasonable illegal activity they of the were sent to in evidence of a crime was clusion that Therefore, investigate. we cannot con destroyed danger being imminent inside plain clude that a warrantless search plaintiffs’ apartment the time justified. Ybarra apartment tiffs’ was See conducted the search. Defendant Officers’ v. Illinois, 85, 91, U.S. (“[A] (1979) person’s 62 L.Ed.2d mere importantly, probable More sus propinquity independently to others cause, context, in that as used this means not, pected criminal with activity does that the officers must have cause believe more, give probable out rise to cause illegal activity taking place particu is in a person.”).5 search that Butler, 248; lar location. See 71 F.3d at Hinton, 219 F.2d at 325-26. The fact that Taking allegations presented probable cause to officers have believe that true, complaint as we cannot conclude that may be in a illegal activity taking place the search conducted in this case was general area does not authorize a search of pursuant made to a valid execution of a dwelling within that area every separate warrant or was a proper warrantless activity illegal Therefore, record, until the is discovered. See search. on the current 692; Johnson, Higgins, it that appears plaintiffs’ the search Furthermore, apartment F.2d at 234-35. the burden violated their Fourth Amend- rights. is on the Defendant Officers to show that ment they probable plain had cause to search Clearly 2. Established Law It apartment. plaintiffs tiffs’ is not on apartment that their should show not have We now consider whether Defendant Coolidge searched. been v. New clearly Officers’ conduct violated estab- 443, 455, Hampshire, 403 lished law. 91 S.Ct. argue requirement may give way also was Plaintiffs that the search announce where physical unconstitutional because the Defendant Offi- there a threat of is violence or a apartment by breaking entered their cers reason to believe that evidence will be de- Richards, knocking stroyed. down the door without or announc- 520 U.S. at 117 S.Ct. ("In ing they police executing justify entry, that were officers order to a ‘no-knock’ police suspicion It search warrant. is well-established that must have a reasonable incorporates knocking announcing presence, "the Fourth and Amendment their circumstances, police requirement particular common law officers under the would be futile, entering dwelling dangerous must knock on the door or that it would inhibit identity purpose investigation and by, announce their and be- the effective of the crime for Richards, attempting entry.” example, allowing dence.”). fore forcible the destruction of evi- 1416; above, 520 U.S. at 117 S.Ct. Wilson v. As noted neither of these Arkansas, appears present circumstances to be However, complaint. pled L.Ed.2d 976 the facts the knock case from aware that the warrant was over- in this been time the search

At the broad, that the there is no indication conducted, clearly was estab it case fatally plaintiffs’ apart- overbroad officers were certain that a warrant lished an entire subject the search of of the search. proper it authorizes ment was when do fact, where the officers building complaint, to the according multi-unit either cause to believe probable to execute the not Defendant Officers chose activity occurring illegal there is ground floor warrant first on search building or that of the separate unit each proceeded plain- to search apartment under the “dominion building is the entire only they after did tiffs’ targeted for the person and control” looking were find what Garrison, at search. See 480 U.S. they Further- place chose to search. first 1013; Butler, 249; at 71 F.3d 107 S.Ct. more, any in- appear there does not Johnson, v. 694; United States 26 F.3d at Defen- dependent cause for the probable (7th Cir.1978); Page, 580 F.2d 920 plaintiffs’ dant to believe that the Officers Gusan, 15, 18-19 v. United States 549 F.2d location of apartment particular was the (7th Cir.1977); Higgins, 428 F.2d at 234- activity. illegal Hinton, It 35; 219 at 326. was also complaint, we pled From the facts the where an officer that clearly established the Defendant cannot conclude that Offi- a building that a is mistakenly believes fishing a in this case did not conduct cers that the later discovers single unit but strikingly similar to the one we expedition units, multiple building in fact contains Higgins. 428 declared unconstitutional if the search obligated to cease officer is (concluding that the search F.2d at 234-35 that the unit he is to determine he unable evi- “[i]t [was] was unconstitutional where subject of the properly the searching is is Garrison, could not determine 86-87, dent that the officers at search. See 480 U.S. 692; 1013; Johnson, apartment which was from the warrant 26 F.3d at 107 S.Ct. Hinton, 234-35; they made that de- Higgins, 428 F.2d at 219 and that be searched clearly by searching apartments it estab all Finally, F.2d at was termination 326. they an cannot conduct a that officer one were they lished until discovered the Johnson, of a residence unless see also for”); search 26 F.3d at warrantless looking that there probable he has cause believe that a is unconstitution- (stating 692 search activity particu in that illegal occurring is playing “the officer was in effect al where exigent circumstances lar residence and searching apart- for the one game’ a ‘shell Wisconsin, v. See Welsh present. are illegal activity of four where ment out U.S. At the time the Defen- occurring”). was Higgins, (1984); 428 F.2d at L.Ed.2d in this the search dant Officers conducted Hinton, 234-35; at case, Supreme they on notice from were as well as from precedent, Court above, allega- on the As discussed based caselaw, type of random that Court’s that the complaint, appears it tions in a multi-unit apartments of the search have known be- Defendant Officers should the Fourth alleged here violates building that entering plaintiffs’ apartment fore that, Therefore, hold un- we single- Amendment. Lincoln Avenue was not complaint, in the apart- alleged facts family plaintiffs’ and that der the as residence quali- not have dwelling separate unit from Defendant Officers do ment was claims. building. plaintiffs’ apartments immunity other fied from addition, that would alleged facts are no that the Defendant the inference

permit D. Seizure suspected plaintiffs’ Officers argues next that Plaintiff Jacobs Troy, target by controlled clearly es- violated his Officers complaint Defendant appears It from the search. rights when Fourth Amendment tablished should the Defendant Officers him activity taking detained for over three hours place is the location apartment. of his during found, the search where an individual is the mere presence of the individual in place is person A who is not free to justification seizing no that individual. leave his home while officers are conduct circumstance, In that the foundation for ing a search is “seized” for Fourth Amend seizing the individual must come from an Summers, purposes. Michigan ment independent probable cause determination 692, 696, 101 S.Ct. the individual is involved in illegal (1981). L.Ed.2d 340 An official seizure is (“In activity. See id. the name of investi- ordinarily unreasonable unless it sup gating person who is no more than sus- cause, ported probable even where no pected of criminal activity, police may id.; formal is made. Dunaway arrest ... verify not seek to their suspicions by York, 200, 212-13, New U.S. approach means that the conditions of ar- However, 60 L.Ed.2d 824 “a rest.”); Dunaway, 442 warrant to search for contraband founded (holding S.Ct. 2248 police may probable cause implicitly carries with it seize an individual probable without cause authority the limited to detain the occu in order to upon expedi- ] [an] “embarkf pants premises proper while a tion for evidence in hope the that some- Summers, search is conducted.” 452 U.S. omitted). thing might turn up”) (quotation 705, 2587; 101 S.Ct. see also United Pace, (7th 1218, States v. 1239 above, As discussed on the facts Cir.1990). This is because there is a sub in alleged complaint, the the search of the stantial law enforcement interest in pre plaintiffs’ appears home to illegal be venting flight the of a suspect the event probable addition, without cause. tak incriminating found, evidence is in ing allegations true, the pled as the Defen protecting officers, safety the of the and in dant Officers in appear this case did not to the orderly completion of the search which probable cause to believe that Jacobs by presence facilitated of the sus engaged was any illegal activity. The Summers, pects. 703, 452 U.S. at 101 Defendant Officers were looking for a thir Furthermore, S.Ct. 2587. “the detention ty-year-old man Troy. named Even if the represents only an incremental intrusion justified officers had been in briefly detain personal liberty when the search of a ing the-sixty-year-old Jacobs to if ascertain home has by been authorized a valid war Troy, he were manner which the rant.” Id. alleged conducted, seizure is to have been However, where a illegal search is breaking down the door to Jacobs’ supported not by probable cause, justi- holding head, home and gun to his fication for using the search as the founda- the three-hour seizure, duration of the do tion for the seizure disappears because it appear not on the presently facts alleged was the connection of the individual with a to be reasonable efforts to obtain in location suspected of harboring criminal Royer, 500, formation. See 460 U.S. at activity provided (“The the reasonable basis S.Ct. 1319 scope of the detention for the seizure. See Royer, Florida v. 460 must be carefully to underlying tailored its 491, 499, justification.”). S.Ct. Therefore, L.Ed.2d considering (1983) (construing Summers only as hold- allegations complaint, we ing that “the [search] warrant made the cannot conclude that the seizure and de occupant sufficiently suspect justify to his tention of Jacobs during the three hour seizure”). temporary When there is no search was reasonable and not in violation longer probable cause to believe criminal of his Fourth rights.6 Amendment 6. The in the state that apartment. rooms of discovery Jacobs' The one of the Defendant Officers claims to have provide of this contraband probable does not discovered because, contraband in one of the bed- cause for the seizure of Jacobs under 1997). is an Fourth Amendment test of Jacobs’ the search the time At one, subjec- the officer’s conducted, objective where clearly- it was was not bad do enter good tive or intentions may not de citizen that a established Graham, analysis. 490 U.S. into the See without officials by law enforcement tained Instead, we consid- 1865. clearly at further It was cause. probable severity “the of the such as not er factors search does illegal that an established issue, suspect poses whether the subject crime at to detain probable cause confer safety of the threat out. an being carried immediate it is the search while others, and he is ac- or whether Summers, officers attempting arrest or that, tively resisting Therefore, under the hold we Id. at by flight.” evade arrest complaint, allegations presented consider whether the We also S.Ct. 1865. enjoy qualified do Defendant Officers suspected arrest or citizen under that their un was claims immunity to Jacobs’ crime, armed, or was was committing his person of his violated seizure lawful to interfere with attempting interfering rights. Fourth Amendment or her duties. execution of the officer’s his E. Force Haskins, 966 F.2d Use See McDonald Cir.1992). end, In the 292-93 De- asserts that the also Plaintiff Jacobs to whether inquiry force excessive “looks violated his Fourth fendant Officers suspect force used to seize the offi- rights when one of Amendment he danger in relation excessive head for over gun to Jacobs’ placed cers community the arrest- or to posed period the initial minutes during ten —to Id. at unattended.” ing left officers—if apartment. his search of May, (citing Wilkins an right-to make While “the (7th Cir.1989)). 193 necessarily stop investigatory arrest or allegations pled According to the de right it to use some carries with sit complaint, plaintiff was in the Jacobs or threat thereof gree physical coercion behind in his Connor, ting at home alone it,” 490 Graham to effect of the Defendant when one 1865, a locked door 396, L.Ed.2d 443 386, 104 door, his his entered down prohibits Officers broke (1989), Amendment the Fourth warning pointed and apartment without during exe force of excessive the use kept the 395, at head. officer seizure, gun at 109 Jacobs’ id. S.Ct. of a cution min over ten at Jacobs for gun pointed Amend (holding the Fourth 1865 utes, ascertaining that Jacobs after even test is objective ment’s reasonableness for, and looking was person he was evaluating exces for appropriate standard nothing did time Jacobs during claims). to decide which order force sive the officer threatening provide than during a more of force used whether the amount ask the officer and his identification “excessive,” to with we examine the is seizure discussed sit down. As permission to to determine tality of the circumstances above, Officers the time the Defendant at on the citizen’s the intrusion whether they do not apartment, justified entered interests was Jacobs’ Amendment Fourth to sus cause probable have had appear to countervailing government interests by the or to any crime had committed pect E. Jacobs Village Lanigan at stake. See being activity was any criminal 467, believe that Crest, 475 Cir. 110 F.3d Hazel unconstitutional); Dun illegal was an seizure complaint, seizure pled the facts in the (holding away, U.S. at S.Ct. Of immediately upon the Defendant occurred during an interrogation an conducted entry apartment and before into the ficers’ suspect’s Fourth illegal violated the may detention have been linked any contraband that information rights and that Royer, Amendment 460 U.S. was Jacobs found. be interrogation could not gained (holding search from that a S.Ct. 1319 seizure). the initial given during justify used pursuant to consent conducted apartment. Taking in Jacobs’ conducted evade the officers or to interfere with the true, appears it these facts as execution of their duties. We therefore use of force against that, Defendant Officers’ taking conclude executing allegedly Jacobs while an illegal true, complaint as the Defendant Officers allegedly home and an search his unlaw- are not by qualified immunity shielded person ful seizure of his was out of propor- from Jacobs’ claim of excessive use of any danger possi- tion to that Jacobs could force. posed bly any to the officers or other We, therefore, community. member III. CONCLUSION that, only cannot conclude considering allegations pled complaint, herein, the De- For the reasons stated we Re- fendant Officers’ use of force did not vio- verse the district court’s dismissal of rights. late Jacobs’ Fourth Amendment plaintiffs’ claims this case for Remand proceedings further consistent with this At the time the Defendant Offi opinion. case, against cers used force Jacobs clearly it “police established that offi EASTERBROOK, Judge, Circuit shove, right cers do not have the push, concurring part concurring or otherwise assault innocent citizens with judgment. any provocation out whatsoever.” Clash v. (7th Cir.1996). Beatty, 77 F.3d join I judgment opin- and all of the Furthermore, it was clear that offi “[a]n ion other than the portions suggesting that deadly cer’s use of apprehend force to a complaint may be dismissed under Fed. unreasonable, suspect probable absent 12(b)(6) R.Civ.P. for failure to state a claim suspect cause that the is dangerous or has when, on which may granted relief after McDonald, committed a violent crime.” receiving an answer considering evi- 294-95; see Estate Starks v. submissions, dentiary judge believes (7th Cir.1993) Enyart, 5 F.3d that the defendants are immune from dam- (finding that the amount of force that is ages liability. Immunity is an affirmative constitutionally permitted to execute sei Toledo, defense. Gomez v. zure decreases with the threat of danger L.Ed.2d 572 posed seized). by the being individual It more, What qualified immunity is defeats was also holding established that gun only a particular remedy, money damages. to a person’s head and threatening pull to money Sometimes is the plain- sole relief a trigger deadly is a use of force. See seek, tiff could and if damages are unavail- McDonald, 966 F.2d at 295.7 Under exist able the case should be dismissed. But a ing Seventh Supreme Circuit and Court complaint does not limit the available re- precedent at the time the use of force lief, 54(c), so, see Fed.R.Civ.P. even when case, occurred in appears this it to be qualified immunity damages from is cer- clearly unreasonable for the Defendant Of tain, complaint may pass muster. And ficers to pointed have a weapon loaded at judgment following the answer should period Jacobs for an extended of time 12(c) come 56; under either Rule or Rule they

when allegedly had no reason to sus 12(b)(6) dismissal under Rule improper. pect that a dangerous criminal, he was or indeed that he any had committed crime at Gomez the Supreme Court distin- all, unarmed, Jacobs was and guished when Jacobs immunity from failure to state a had nothing done either to attempt claim on may which relief be granted. “By 7. While complaint it is not indicated person in the presented in the circumstances here pointing gun officer at Jacobs' implicit carries with it the threat that the head pull trigger, threatened to it weapon person is a officer will use that if the at reasonable inference alleged from the facts comply whom it is directed does not with the that the pointing weapon act of a loaded at a officer's wishes.

775 round immuni- designed to skirt only complaint §of two—and terms plain claim’s substantive may reveal ty in order required are two— mer- justify dismissal on the that statute. under of action weakness a cause state 12(b)(6). v. Buckley that some First, allege must Rule under plaintiff its Cir.1994). (7th right. Fitzsimmons, him of a federal deprived has person person Second, allege however, immu- rule, public officials’ he must aAs acted right him of that deprived than ab- who has are rather nity qualified defenses law.” or state territorial color of solute, may under elect to the officials defend com S.Ct. immunity, than to claim rather the merits allegations, contained both in plaint Gomez immunity it do assert when defendants an order reversed therefore and the Court in addition to to consider facts is essential 12(b)(6). Craw Rule dismissing it under complaint. Considerations those in the Britton, 574, 118 S.Ct. U.S. v. defenses other affirmative immunity or ford-El (1998), has since L.Ed.2d 759 until has fore an answer rarely come to the elements not alter the insisted courts in filed this case filed. Defendants been name of § under burdens answer, eviden- to which attached an Tarrant v. Leatherman immunity. 12(b) Cf. says that Rule tiary materials. 1160, 122 163, 113 County, 507 convert judge must circumstances such (no (1993) plead “heightened L.Ed.2d summary request for to a proceedings cases). Any con §in ing standard” judgment. cannot be circuit this trary decisions deny many what cases is to None of this from the the instructions with reconciled immunity often stressed: claims up to Court, face and we should Supreme in advance complaint a justify dismissing do, my colleagues say, as rather than this describes discovery. But 12(b)(6) immunity Crawford-El of Rule that the use work. 523 U.S. process should how that district “delicate matter situations is a answer First is an 118 S.Ct. 1584. Maj op. carefully.” approach should courts 7 or a response a under Rule followed 12(b)(6) a for is mismatch n. 3. Rule un- a more definite statement motion ground always bad almost immunity and 12(e). of Rule is the Second use Rule der dismissal. 26(c) discovery. As or foreclose to curtail Rule use of to exclude possible It is not Thomas, F.2d observed Elliott we to state a 12(b)(6), “failure which covers (7th Cir.1991), anticipat- which 338, 344-46 granted”. relief can upon claim which Craivford-El, Leatherman both ed under imagine can circumstances One right way is the summary judgment “claim” sets out which also immunity. See claims of handle narrates yet of Gomez within the ambit Robinson, 10 Associates, Inc. Triad impossible to award showing that it is facts Cir.1993). District 492, 497 de- litigant who example, relief. For immunity try to resolve sometimes judges of Con- from Member damages mands they be- Rule because under defenses made on the speech of a on account gress discovery before allow must lieve court; it is out himself pleaded floor has summary judgment, ruling on motions assert necessary for the defendant may Defendants this is incorrect. but 1, § Art. I because immunity cl. under any time”. “at summary judgment seek that, itself demonstrates complaint 56(b). immunity doctrines If Fed.R.Civ.P. abstract strong the claim however (or discovery with without require decision non-public speech slandered (perhaps judges discovery), then district limited to redress is forbidden figure), court Rule authority under use their must Wright & Charles Allen injury. (c) 26(b)(2) dis- or eliminate curtail Miller, Practice and 5 Federal Arthur R. affidavits (dis- basis of (2d ed.1990) on the covery and decide 1226, §§ Procedure produced can be defenses). other evidence Sometimes cussing built-in compulsory process. without Immunity Connor, Foster, Gregory Maurice Hubbard, Jerry Patterson, justify does not decision on the basis of Lennell Patterson, Sumrell, Edgar Odell (which instead evidence Williams, Defendants-Appellants. entails) what judgment under Rule 12 or a 97-3132, 97-3159, Nos. 97-3163, 97-3480, pretense that a that meets the 97-3666, 97-3683, 97-3697, 98-1066, 98- standards of doesn’t state a claim Gomez 1265, 98-1310, 98-1981, 98-1991, 98- on which may granted. relief 2362, 98-3115, 98-3625 Nothing turns the choice among Rule United States Appeals, Court of 12(b)(6), 12(c), Rule and Rule 56 in this Seventh Circuit. case, because defendants are not entitled Argued 15, Feb. 2000. immunity standard, any under but in 1, Decided June other cases the choice between decision (Rule 12) without evidence and decision (Rule 56)

with evidence could be decisive.

Many 12(b)(6) district judges treat Rule as

a grant authority to terminate cases lack promising futures. We resist tendency law, other corners of the

e.g., Inc., Walker v. National Recovery, (7th Cir.1999);

200 F.3d 500 Bennett v.

Schmidt, (7th Cir.1998); (7th

Cook v. Winfrey, 141 F.3d 322 Cir.

1998); American Nurses’ Association v.

Illinois, Cir.1986),

and should do so in this corner too. See

also, e.g., King Hishon v. & Spalding, 467 69, 73, 104 S.Ct. L.Ed.2d

(1984); Gibson, Conley 45- 2 L.Ed.2d 80

UNITED America, STATES of

Plaintiff-Appellee, (“Bay-Bay”)

Andrew PATTERSON, Patterson,

Robert Henry Patterson, (“Maine”)

Andrew Patterson, L.

Tyrone Williams, Williams, Andre Baker, Terry

Durwin Clark, Willie

Case Details

Case Name: Jacobs, Willie v. City of Chicago

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jun 1, 2000

Citation: 215 F.3d 758

Docket Number: 99-2507

Court Abbreviation: 7th Cir.