Horace E. SMITH, II, M.D., Plaintiff-Appellant, v. CITY OF CHICAGO, a municipal corporation, Milton M. Scott, employee of the Police Department of the City of Chicago, a municipal corporation and Randall Darlin, employee of the Police Department of the City of Chicago, a municipal corporation, Defendants-Appellees.
No. 99-2965.
United States Court of Appeals, Seventh Circuit.
Argued May 31, 2000. Decided March 6, 2001.
Benna R. Solomon (argued), Liza M. Franklin, Adrienne Hiegel, Office of the Corporation Counsel, Appeals Division, for defendants-appellees.
Before FLAUM, Chief Judge, and BAUER and WOOD, Jr., Circuit Judges.
BAUER, Circuit Judge.
Smith sued defendants, in relevant part, for unreasonable search and seizure, use of excessive force, and battery, arising from a May 1996 traffic stop. After some to and fro-ing, the case is before us again, so a thumbnail sketch of the facts and case history is needed.
The district court entered summary judgment in defendants’ favor on all counts, and Smith appealed. Defendants motioned this Court for a limited remand to allow the district court to listen to an audio tape recording of the conversation between the officers and the dispatcher during this incident. A transcript of the conversation was already part of the record. The tape became critical, however, because a dispute arose as to whether the officers had played their siren while following Smith. Smith is adamant that he did not hear the siren. He claims that he did not know that the men in the car trailing him were police officers because they were plain-clothed and drove an unmarked car. The officers contend that they followed Smith after he had violated a traffic law and played the siren, but that Smith refused to pull over. Smith, although driving within the speed limit, did not stop for twelve blocks until marked police cars pulled in front of him. On December 2, 1999, we granted defendants’ motion, ordering the district court to consider: (1) whether a copy of the tape had been tendered to it; and (2) if a genuine issue of material fact existed as to whether the officers played their siren prior to the investigative stop.
On February 24, 2000, defendants filed a memorandum in light of our remand order asking the district court to consider the tape in deciding on summary judgment. The defendants noted that Smith objected to its admission because there were gaps and pauses in it and it was unclear whose siren was audible on the tape. In response, defendants pointed to the following: (1) an affidavit signed by Officer Darlin, one of the arresting officers, swearing that he had listened to the tape, that the voice on it was his, and that the siren heard on it sounded like the one from the car on that day; (2) an affidavit signed by Thomas Dugan, an employee of the City of Chicago Office of Emergency Communications, swearing that the office records all conversations between police and dispatchers and maintains these tapes in its ordinary course of business, that he had listened to the tape, that the office had made the tape from a master tape in its regular business practice, and that the recording had no “gaps” or “unexplained pauses,” and that the siren had to have come from the officers’ car since it was only audible when the officers spoke; and (3) deposition testimony of Officer Scott, another one of the arresting officers, recounting that Darlin had activated the siren while following Smith and that it remained on for twelve blocks. Defendants argued that Smith offered no evidence creating a genuine issue of material fact as to whether the siren was played. The only evidence Smith asserted was that he did not hear the siren. On March 1, 2000, Smith filed a memorandum in response. Smith argued that the tape was inadmissible because it had not been tendered to the court, the tape had gaps and pauses, and no foundation or authentication of the tape was presented.
The district court‘s order, issued on March 9, 2000, which strictly adhered to the language of our December 2nd order,
Upon reading the district court‘s order, we realized the ambiguity in our December 2nd order and set out to clarify it. On June 27, 2000, we issued an order directing the district court to supplement the record with the tape, listen to it, and redetermine the grant of summary judgment. Pursuant to this clearer directive, the district court, on October 12, 2000, issued an order stating that it had supplemented the record with the tape and listened to it. The court noted that the tape contained a recording of the conversation between the officers and dispatcher regarding a car that refused to pull over. Throughout the tape, a siren is clearly audible as the officers speak. (We too have listened to the tape and agree with the district court that a siren is clearly playing as the officers are speaking.) The district court noted that the defendants had offered the tape as authentic and had indicated that the siren was theirs. The court again found that no genuine issue of material fact existed since Smith merely asserted that he did not hear the siren and offered no evidence that the tape was not what the defendants claimed it to be. Therefore, the district court decided that summary judgment was still warranted in defendants’ favor.
Today we consider two issues raised by Smith. First, he raises questions about the tape‘s authenticity and admissibility, and second, he alternatively argues that even if the tape was properly admissible, it did not eliminate disputes as to genuine issues of material fact.
I. Admissibility and Authenticity of the Audio Tape Recording
In granting summary judgment, a ”court may consider any material that would be admissible or usable at trial,” including properly authenticated and admissible documents or exhibits.” Woods v. City of Chicago, 234 F.3d 979, 988 (7th Cir.2000) (quoting Aguilera v. Cook County Police & Corrs. Merit Bd., 760 F.2d 844, 849 (7th Cir.1985) and citing Martz v. Union Labor Life Ins. Co., 757 F.2d 135, 138 (7th Cir.1985)). Audio tape recordings are generally admissible as evidence whether in original or duplicate form. See United States v. Carrasco, 887 F.2d 794, 802 (7th Cir.1989). However, a duplicate may be inadmissible if “a genuine question is raised as to the authenticity of the original....”
To authenticate a tape in a criminal case the government must prove by clear and convincing evidence that the tape is a true, accurate, and authentic recording of the conversation, at a given time, between the parties involved. See id. We have assumed, but not decided, that the proponent in a civil case for admission of a tape bears the same burden. See id. We decline to squarely decide the question again today, resting on the same assumption. Clear and convincing evidence of the truth, accuracy, and authenticity of a tape may be shown in two ways. The proponent may show the tape‘s chain of custody. See United States v. Brown, 136 F.3d 1176, 1181 (7th Cir.1998). If no proof as to chain of custody is rendered, the tape may be admissible if a foundation as to the
Our second remand ordered the district court to admit the tape into the record and consider it in its decision. In so doing, the district court found that the tape was authentic and admissible because the proponents laid a proper foundation. They did so by submitting both Darlin‘s affidavit, which included eyewitness statements identifying his voice and siren, and Dugan‘s affidavit, which included chain of custody statements about how the tape was recorded and handled in the office. Thus, based on these attestations, the district court appropriately shifted the burden to Smith to show inauthenticity, because once the foundation is laid by clear and convincing evidence, the opponent of admission has the burden to rebut. See United States v. Blakey, 607 F.2d 779, 787 (7th Cir.1979). The district court properly found that Smith presented no evidence “to dispute that the recording is what the defendants claim[ed] it to be.” Smith‘s only rebuttal is that he did not hear the siren, therefore there may have been a problem with the fidelity of the siren system or the siren was not played. Smith‘s contentions are merely “general, conclusory allegations based upon mere suspicions,” which are not enough to rebut the proponent‘s foundation. Id. (quotation omitted). Stated another way, “[m]erely raising the possibility (however hypothetical) of tampering is not sufficient to render evidence inadmissible.” Brown, 136 F.3d at 1182 (citation omitted). Therefore, it was appropriate to admit the tape in determining summary judgment, and the district court correctly found that the tape was authentic and admissible. Smith raises an assortment of other arguments regarding the authenticity and admissibility of the tape, however, we decline to address them for they are without merit.
II. Review of the Summary Judgment Grant
We review the district court‘s grant of summary judgment de novo, construing all facts and drawing all reasonable inferences from the record in the light most favorable to the nonmovant. Summary judgment is proper when the record reveals no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. See
A. Unlawful Search and Seizure Claim
Smith claims that the officers violated his rights by searching him and the car‘s glove box, passenger compartment, and trunk. The district court held that the defendants were entitled to qualified immunity because a reasonable person would not find that the officers violated Smith‘s clearly established constitutional rights. Police officers are entitled to qualified immunity for actions taken during a stop or arrest “‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.‘” Rice v. Burks, 999 F.2d 1172, 1174 (7th Cir.1993) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Qualified immunity is dissolved, however, if a plaintiff points to a clearly analogous case establishing a right to be free from the specific conduct at issue or when the conduct is so egregious that no reasonable person could have believed that it would not violate clearly established rights. See Saffell v. Crews, 183 F.3d 655, 658 (7th Cir.1999).
The defendants acquired reasonable suspicion to conduct an investigatory stop of Smith when they believed that he had committed a traffic offense and then would not pull over for twelve blocks while the officers played their siren. When the dispatcher misinformed the officers that Smith had thirteen
Smith‘s main contention is that such a search was unlawful because he committed a minor traffic violation. This contention is wholly wrong because it ignores many facts, namely Smith‘s refusal to pull over, his invalid proof of insurance, and the thirteen aliases he was said to have. All of these facts combined gave the officers probable cause to arrest him and conduct a search incident to that arrest. Therefore, the officers did not violate Smith‘s clearly established rights.
Smith also contends that a search was unnecessary because “a reasonable officer would have immediately known that he had pulled a physician and minister from his vehicle, and that Dr. Smith was not a threat and posed no danger.” We disagree. Despite the fact that Smith is a minister and physician, the officers had probable cause to arrest and search him. Even though Smith was driving a church-owned car and had hospital records in the backseat, the officers were reasonable in disregarding these clues as to Smith‘s identity since they were informed, albeit incorrectly, by the dispatcher that he had thirteen aliases. Besides, to hold that the officers should have stopped searching Smith because he is a minister or physician would be sanctioning stereotyping of the most pernicious sort. We agree with, and affirm, the district court‘s decision that the defendants are entitled to qualified immunity and summary judgment on this claim.
B. Excessive Force Claim
Whether an officer used excessive force during an arrest is determined under the “objective reasonableness” standard. We assess whether an officer‘s actions were objectively reasonable “in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). We consider “the severity of the crime at issue, whether the suspect pose[d] an immediate threat to the safety of the officers or others, and whether he [was] actively resisting arrest or attempting to evade arrest by flight.” Id. at 396, 109 S.Ct. 1865. We balance the amount of force used in relation to the danger posed to the community or to the arresting officers. See Jacobs v. City of Chicago, 215 F.3d 758, 773 (7th Cir.2000).
Smith asserts that he did not commit a traffic violation, he did not know that the men following him were police officers, and he did not hear the siren. However, these factual disputes are of no
C. Battery Claim
A battery occurs when one “intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual.”
The district court held that the evidence did not support a finding that Darlin‘s actions in effectuating the arrest were willful and wanton. The court reasoned that pulling a suspect from a car, pushing him against the car, and pinning his arms behind his back to handcuff him were all reasonable actions to take when arresting a potentially dangerous suspect. While ostensibly not pleasant, being handcuffed in this manner does not rise to the level of willful and wanton conduct. While determining whether one‘s actions are willful and wanton is a question of fact, the court determined that Smith‘s factual claims were insufficient to support his claim. We agree with the district court‘s grant of summary judgment on this basis.
Therefore, we find the admission of the audio tape recording appropriate and AFFIRM the grant of summary judgment in defendants’ favor on all counts.