MARCUS D. TORRY, LATRELL Q. GOSS, and WILLIAM I. ROBERTS v. CITY OF CHICAGO, et al.
No. 18-1935
United States Court of Appeals For the Seventh Circuit
ARGUED APRIL 9, 2019 – DECIDED AUGUST 2, 2019
Before KANNE, BARRETT, and BRENNAN, Circuit Judges.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:15-cv-8383 — John Robert Blakey, Judge.
Before us, the plaintiffs have repeatedly suggested that the defendants’ failure of memory is a concession of liability. In other words, they maintain that if a police officer doesn‘t remember a stop now, reasonable suspicion could not have justified it at the time. But the Fourth Amendment does not govern how an officer proves that he had reasonable suspicion for a Terry stop; he can rely on evidence other than his memory to establish what he knew when the stop occurred. The police report demonstrates that King knew that the suspects in the shooting had been identified as three black men driving a grey car, and the cell-phone video shows him giving the shooting as the reason for the stop. We agree with the district court that the officers are entitled to qualified immunity.
I.
On the morning of September 23, 2014, a drive-by shooting occurred about half a mile from Manley High School, which is located on West Polk Street in Chicago. Sergeant Robert King was on duty that day as a “school sergeant” — an officer who responds to and investigates violence near schools within his beat. A police report detailing the chronology of events related to the shooting shows that King responded to the shooting and that three descriptions of suspects were received while he was assisting.1 One identified the suspects’ vehicle
Shortly past noon on that same day, Marcus Torry and William Roberts picked up Latrell Goss, Torry‘s brother, in a grey Ford Fusion sedan. Goss‘s car had broken down on West Polk Street; Torry and Roberts met him at his car and then drove him west on West Polk to an auto parts store. They passed Manley High School as they drove to the store, and they passed it again when they returned the same way. As they went by the school for the second time, they were pulled over by three police officers — King, Jacek Leja, and Justin Raether. Torry captured video of the ensuing encounter on his cell phone camera. Like the district court, we draw our de-scription of the encounter primarily from the video, supplementing it with other undisputed facts and drawing all inferences in the plaintiffs’ favor.2
After Torry pulled over, King approached his window and asked for his license and registration. Torry asked why he had been stopped, and King replied that “this was about your third pass by this school.” Torry protested that he had not driven by the school three times and handed over his license and registration. King told him not to argue; Torry demanded King‘s badge number.
King told Torry to step out of the car and reached for the handle of the driver‘s door, which prompted Torry to ask if he was under arrest. King didn‘t directly answer the question but said, “Sir, get out of the car please. Sir, this is a Terry stop, I have the right to search the car, get out of the car.” Torry, protesting that he had done nothing wrong, failed to comply with multiple commands that he exit the vehicle. King told Torry, “If you don‘t get out of the car, I will remove you from the car,” and Torry replied, “I‘m gonna remove myself but I just don‘t want to get — y‘all get me, shoot me, or kill me for something I didn‘t do wrong.” King responded, “Yes, sir, absolutely; hands up, don‘t shoot, there you go.” Neither King nor the other officers had a gun out, but Torry feared police brutality.
Torry testified that when he finally removed his seatbelt, King “just grab[bed] me out of the car.” King ordered Torry to “come on out, sir,” as Torry repeatedly exclaimed, “Please don‘t shoot.” King walked Torry to a squad car, saying, “Let‘s go back to my car, sir, right over here,” and placed him inside. Goss testified that an officer grabbed him out of the car too, but neither Goss nor Roberts were placed in a squad car. After the plaintiffs had been repeatedly ordered to leave the car but before they had complied, one of the officers shook a can of mace, although he never used it.
After placing Torry in the back of his squad car, King sat in the front for a few minutes while he ran Torry‘s name through a warrant check. Torry demanded to know why he had been pulled over, and King explained that Torry had “cruised this street here around the school,” which was an area of “safe passage” and “the
Roughly ten minutes into the stop and eight minutes after putting Torry in the squad car, King retrieved Torry and walked him back to his own car. Torry asked if he was under arrest, to which King answered, “If you were under arrest, you‘d be in handcuffs.” Torry got in his car, and King returned his license and registration. Shortly after, one of the officers said to Goss that “you don‘t want anything to do with him,” and — in response to an unintelligible reply — said, “Yeah, c‘mon, jump in the car ... yeah we‘ll give you a ride home.” Goss testified that the officers had told him to get in their car to return to his disabled car.
Free to leave, Torry and Roberts pulled back onto West Polk Street. Torry continued his video recording, narrating that the officers were driving behind his car. Goss, riding in the back seat of Leja and Raether‘s car, testified that those officers debated pulling Torry over again “to mess with him.” But the officers dropped Goss off at his car and nothing else happened.
One year later, Torry, Goss, and Roberts sued the three officers under
Based on that report and his review of Torry‘s video, King testified by affidavit that the dispatches would have alerted him that the suspects were three black men driving a grey car, and, as the video reflected, that he told Torry — who was driving a grey car with three black male occupants
II.
The primary theme of the plaintiffs’ argument is that proving reasonable suspicion for the stop requires the officers to have at least some independent memory of what they knew at the time. The plaintiffs particularly object, therefore, to the district court‘s reliance on indirect evidence — the police report and King‘s affidavit — to conclude that the officers had reasonable suspicion to pull them over. They offer four reasons why the district court was wrong to consider this evidence: first, the officers submitted it in response to the plaintiffs’ motion for summary judgment rather than in support of their own motion; second, King‘s affidavit was a sham because it contradicted his prior testimony; third, the police report was hearsay; and fourth, King‘s lack of memory precludes him from relying on the collective knowledge doctrine. None of these arguments succeeds.
To begin with, it doesn‘t matter that the officers submitted the report and affidavit in their response to the plaintiffs’ motion for summary judgment rather than in support of their own motion. In adjudicating a motion for summary judgment, “[a] court need consider only the cited materials, but it may consider other materials in the record.”
The plaintiffs’ next argument — that the court should have excluded King‘s affidavit as a sham — fares no better. According to the plaintiffs, King made several admissions during discovery that effectively conceded his liability, and his affidavit contradicts these admissions because it explains why King had reasonable suspicion for the stop. Thus, they insist, the court was obligated to exclude the affidavit as a sham. See Bank of Illinois v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1168 (7th Cir. 1996) (“[P]arties cannot thwart the purposes of Rule 56 by creating ‘sham’ issues of fact with affidavits that contradict their prior depositions.”). The premise of the plaintiffs’ argument is flawed, however, because King‘s affidavit does not contradict his prior admissions. King never conceded that he stopped the plaintiffs unlawfully; he stated that he had no independent memory of the incident. Admitting to a lack of memory is a far cry from admitting that the opposing party‘s version of events is correct. See Brown v. County of Cook, 661 F.3d 333, 338 (7th Cir. 2011). Rather than contradicting his prior admissions, King‘s affidavit explained the newly introduced police report and how it bore on the
The plaintiffs’ next argument — that the police report was inadmissible hearsay — is their most underdeveloped. They insist that the report is hearsay, but they never articulate why any of the statements within the report was offered as proof of the truth of the matter asserted. See
We will assume for the sake of argument that the entries reflecting King‘s response to the shooting were offered for their truth.5 Even if they were, however, the plaintiffs don‘t counter the defendants’ argument that the entire report is admissible under the business records exception. See
The plaintiffs point out that while the police report shows that descriptions of the suspects were transmitted to investigators, it does not expressly note whether the investigators received them. The district court properly concluded, though, that we can impute that knowledge to King via the collective knowledge doctrine. “[W]hen officers are in communication with each other while working together at a scene, their knowledge may be mutually imputed even when there is no express testimony that the specific or detailed information creating the justification for a stop was conveyed.” United States v. Nafzger, 974 F.2d 906, 911 (7th Cir. 1992); see also United States v. Sawyer, 224 F.3d 675, 680 (7th Cir. 2000). That is true even when the communication is by dispatch rather than face-to-face. See Sawyer, 224 F.3d at 680. King‘s presence at and involvement in the shooting investigation — bolstered by his testimony that suspect descriptions are typically shared with officers at the scene and through the Office of Emergency Management and Communications — are enough to attribute the knowledge to him.
Because the report establishes that King was aware of both the shooting and the suspect descriptions, the court appropriately treated those as undisputed facts when considering whether reasonable suspicion for the Terry stop existed.
III.
That brings us to the reasonableness of the stop. The plaintiffs argue that it violated the Fourth Amendment, given that the shooting had occurred several hours earlier and that Torry‘s car was a different model than the one identified in the department‘s transmissions to investigators. The defendants contend that the stop was lawful and that they are in any event entitled to qualified immunity.
Qualified immunity protects government officials from liability for civil damages as long as their actions do not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Figgs v. Dawson, 829 F.3d 895, 905 (7th Cir. 2016) (citation omitted). Thus, to win, the plaintiffs must show not only that the stop was unlawful, but also that the unlawfulness of the stop was clearly established at the time that it occurred. Because the plaintiffs cannot make the latter showing, we need not consider whether the stop violated the Fourth Amendment. See Pearson v. Callahan, 555 U.S. 223, 236 (2009) (“[C]ourts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first ....”).
The “demanding standard” that the law be “clearly established” for liability to attach “protects ‘all but the plainly incompetent or those who knowingly violate the law.‘” District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). For the law to be “clearly established,” existing precedent must have placed the unlawfulness of the stop “beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). It is usually necessary to identify an instance in which “an officer acting under similar circumstances was held to have violated the Fourth Amendment,” though in the “rare ‘obvious case‘” the violation may be sufficiently clear “even though existing precedent does not address similar circumstances.” Wesby, 138 S. Ct. at 590 (alteration in original) (citations omitted).
The general rule established by Terry v. Ohio is that officers may conduct a brief investigatory stop if they reasonably suspect that an individual has committed or is about to commit a crime. 392 U.S. 1, 20–22 (1968). Reasonable suspicion is a lower standard than probable cause. See Navarette v. California, 572 U.S. 393, 397 (2014). It‘s a “commonsense, nontechnical [standard] that deal[s] with ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.‘” Ornelas v. United States, 517 U.S. 690, 695 (1996) (citation omitted). It is judged holistically, based on “the sum of all of the information known to officers at the time of the stop.” See Matz v. Klotka, 769 F.3d 517, 523 (7th Cir. 2014).
The plaintiffs do not contend that this is the rare case in which the facts establish a blatant violation of Terry‘s rule even though there is no case on point. See Wesby, 138 S. Ct. at 590. Instead, they identify two cases that they say clearly established the illegality of this Terry stop: Gentry v. Sevier, 597 F.3d 838 (7th Cir. 2010), and United States v. Packer, 15 F.3d 654 (7th Cir. 1994). In Gentry, a police officer stopped someone after hearing a dispatch report that a suspicious person was pushing a wheelbarrow. 597 F.3d at 842–43. In Packer, police officers stopped a vehicle‘s occupants based on a citizen‘s report that a suspicious vehicle was parked along the street at one o‘clock in the morning. 15 F.3d at 658. Neither report provided any facts concerning any crime that the people stopped were suspected of committing — they were stopped just because they looked suspicious. In both cases, therefore, the officers “lacked the minimal detail of information that would point to any arguably particularized suspicion of criminal conduct.” Green v. Newport, 868 F.3d 629, 634 (7th Cir. 2017) (citation omitted).
Neither Gentry nor Packer speaks to a situation like this one, where the plaintiffs partially matched the description of suspects involved in a drive-by shooting. When the officers in this case stopped the plaintiffs, they knew that three black men in a grey car were suspected of committing a nearby shooting earlier that day. The plaintiffs matched this description in number, race, and car color. Cf. United States v. Lenoir, 318 F.3d 725, 729 (7th Cir. 2003) (“[P]olice observation of an individual, fitting a police dispatch description of a person involved in a disturbance, near in time and geographic location to the disturbance
We‘ll begin with the variation between Torry‘s car and the descriptions of the suspects’ car. Under our precedent, an imperfect match between a suspect and a description does not necessarily make an officer‘s suspicion unreasonable. See, e.g., D.Z. v. Buell, 796 F.3d 749, 754 (7th Cir. 2015) (finding reasonable suspicion to stop an individual “who somewhat matched the description of the suspect”). And the significance of the imperfect match may have been lessened here because there were multiple reports giving conflicting information about the suspects’ grey car. One report identified it as a Nissan, without giving a model; another identified it as a Nissan SUV; and a third identified it as a Trailblazer (an SUV made by Chevrolet). The fact that the reports’ descriptions of the car were consistent only as to its grey color gave the officers some reason to pay more attention to the color than to the make or model. No clearly established law holds that this kind of variation makes an officer‘s suspicion unreasonable under the Fourth Amendment.
As for the time and place discrepancies, past cases have not established that they‘re enough to defeat reasonable suspicion. In United States v. Tilmon, for example, we found a stop reasonable based on the “match of a unique automobile with a driver fitting the general description of the bank robber,” even though the stop occurred two hours after and fifty miles away from the robbery. 19 F.3d 1221, 1225 (7th Cir. 1994). This stop occurred four hours after but only a half-mile away from the shooting and within the “safe passage” area surrounding Manley High School.
Finally, the officers’ suspicion was not based solely on the descriptions of the suspects. The plaintiffs had also passed by the same area multiple times, behavior that could suggest that they were casing it in preparation for further criminal activity related to the dispute underlying the shooting. Cf. Green, 868 F.3d at 634 (circling an auto parts store‘s parking lot multiple times near the close of business contributed to an officer‘s reasonable suspicion). Taking all of this evidence together, a reasonable officer could have concluded that the investigative Terry stop of the plaintiffs comported with the Fourth Amendment. See Anderson v. Creighton, 483 U.S. 635, 641 (1987).
IV.
Finally, the plaintiffs argue that even if the stop was initially justified, it exceeded its appropriate bounds and turned into a de facto arrest. They argue that taking Torry‘s identification and placing him in the back of the squad car was more intrusive than was warranted for the Terry stop, and thus transformed the encounter into an arrest without probable cause.
The district court concluded both that the scope of the stop was lawful and that the officers were entitled to qualified immunity regardless. The plaintiffs challenge only one of those holdings: the lawfulness of the stop. Because they do not challenge the district court‘s alternative holding that the defendants are entitled to qualified immunity, they have forfeited this argument.
***
Because the defendants are entitled to qualified immunity, the judgment of the district court is AFFIRMED.