TERRELL ESCO v. CITY OF CHICAGO, et al.
No. 23-1304
United States Court of Appeals For the Seventh Circuit
ARGUED DECEMBER 8, 2023 — DECIDED JULY 9, 2024
Bеfore SYKES, Chief Judge, and RIPPLE, and ROVNER, Circuit Judges.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:22-cv-02324 — Elaine E. Bucklo, Judge.
A. Probable cause and the facts
We begin, in a somewhat unusual manner, by setting forth the law, so that we might spotlight the facts relevant to the proper legal question, which, at times, gets lost in the shuffle of Esco‘s allegations. This case evolved from an incident involving Esco and a gun. But this case is not about whether Esco possessed or discarded the gun, or for that matter, whether he definitively committed any crime. Esco has filed a federal
Because this is a suit against the City and several of its police officers for unlawful detention and malicious prosecution, the defendants do not have to prove that Esco possessed the wеapon. The questions in this appeal are whether the officers had probable cause to detain Esco on a weapons charge, and whether they reasonably conveyed information that led to his detention and prosecution. The factual focus, therefore, must be on what reasonable officers would have surmised, given the situation surrounding them—not on proving if Esco was, in actuality, doing what the officers thought he was doing. That is because the determination of probable cause is based on an objective assessment of what a reasonable officer could conclude based on information known to officers at the scene. Moorer v. City of Chicago, 92 F.4th 715, 720 (7th Cir. 2024). “In making that assessment, the court must consider the facts as they reasonably appeared to the arresting officer, seeing what he saw, hearing what he heard, and so forth.” Holmes v. Vill. of Hoffman Est., 511 F.3d 673, 679 (7th Cir. 2007). “An officer has probable cause when, ‘at the time of the arrest, the facts and circumstances within the [officer‘s] knowledge ‘are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstаnces shown, that the suspect has committed an offense.‘” Madero v. McGuinness, 97 F.4th 516, 522 (7th Cir. 2024) (quoting Lawson v. Veruchi, 637 F.3d 699, 703 (7th Cir. 2011)). “This is a ‘common-sense inquiry requiring only a probability of criminal activity,‘” not certainty that a crime has occurred. Braun v. Vill. of Palatine, 56 F.4th 542, 548 (7th Cir. 2022) (quoting Leaver v. Shortess, 844 F.3d 665, 669 (7th Cir. 2016)); Moorer, 92 F.4th at 722.
The relevant facts, therefore, are thоse that shed light on whether the police officers were reasonable in thinking that Esco had likely committed a crime. Gaddis v. DeMattei, 30 F.4th 625, 630 (7th Cir. 2022). And as we noted, that means we must look at the facts known to the officers at the time of Esco‘s arrest, bearing in mind that information that supports probable cause can come from one officer who relays that information to others. United States v. Smith, 989 F.3d 575, 582 (7th Cir. 2021). With that lengthy background legal explanation aside, we recount the facts as follows:
In his complaint, Esco asserted that despite knowing that someone else threw the gun and ran, the officers nevertheless arrested him and falsely stated in their police reports that he possessed the weapon. This, he claims, led to the eventual charges for being an armed habitual criminal, a felon in possession of a firearm, and for aggravated unlawful use of a weapon.3 Although he did not attach any video exhibits to his complaint, Esco alleged that body-worn camera video revealed
We have begun with the facts as alleged in Esco‘s complaint and brief on appeal, (and those that are undisputed), for when we review a district court‘s grant of a motion to dismiss, we accept the well-pleaded facts in the complаint as true and draw reasonable inferences in the plaintiff‘s favor. Bronson v. Ann & Robert H. Lurie Children‘s Hosp. of Chicago, 69 F.4th 437, 448 (7th Cir. 2023). “[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and ‘that a recovery is very remote and unlikely.‘” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). Although we accept the well-pleaded facts, we note that district courts are free to consider “‘any facts set forth in the complaint that undermine the plaintiff‘s claim.‘” Bogie v. Rosenberg, 705 F.3d 603, 609 (7th Cir. 2013) (quoting Hamilton v. O‘Leary, 976 F.2d 341, 343 (7th Cir. 1992)). The court, therefore, may examine exhibits, including video exhibits, attached to the complaint, or referenсed in the pleading if they are central to the claim. Id.; see also Tierney v. Vahle, 304 F.3d 734, 738 (7th Cir. 2002) (explaining that a court may consider exhibits referred to in a complaint, even if not attached to it, lest a “plain-tiff could evade dismissal under Rule 12(b)(6) simply by failing to attach to his complaint a document that proved that his claim had no merit.“).
It warrants emphasizing, however, that a district court deciding a motion to dismiss, may not defy the Supreme Court‘s command to accept all facts in the complaint as true, and instead rely on video evidence unless the video “utterly discredit[s]” the non-movant‘s version of the facts such that there could be no reasonable disagreement about what the video dеpicts. Scott, 550 U.S. at 380. Although the Scott court made its admonishments in the context of summary judgment, those cautions are equally relevant when a district court judge relies on video evidence to rule on a motion to dismiss. Bogie, 705 F.3d at 611 (“We also recognize that any photograph or film shows only one perspective on a scene, so that additional perspectives, such as eyewitness testimony or photographs or films from different angles or different times, might reveal additional facts that would change the legal analysis.“). This court has made clear that video and photographic evidence cannot be used when deciding cases as a matter of law, when the video does not clearly and definitively discredit the non-movant‘s facts. See Kailin v. Vill. of Gurnee, 77 F.4th 476, 481–82 (7th Cir. 2023) (declining to apply the Scott exception when video does not clearly show the events in question); Eagan v. Dempsey, 987 F.3d 667, 691 n.56 (7th Cir. 2021) (noting that the Scott exception is a narrow and pragmatic one reserved only in cases where there is clear and irrefutable video evidence); Ferguson v. McDonough, 13 F.4th 574, 581 (7th Cir. 2021)
We agree with the assessment of both parties and the district court that it was appropriate for the district court to consider the body-worn camera video evidence when considering this motion to dismiss. That video provided the district court with the following factual information: As Officers Lopez, Sеgovia, and Cledon approached the group of individuals in the street, Officer Segovia suddenly exclaimed, “there he is, he threw the gun!” R. 8-1 at 3:00. As the man to whom he was referring ran away and the officers pursued him, Officer Segovia announced on the radio, “we got one running.” R. 8-1 at 3:04. It is undisputed that the man who ran was Esco. Esco Br. at 7 (“Plaintiff acknowledged in his response that BWC footage shows he ran from officers ....“).
As the rest of the officers continued to pursue Esco, Officer Segovia stopped to retrieve the discarded weapon and almost immediately found it under a parked car, announcing into his radio within seconds, “weapon recovered.” R. 8-1 at 3:19. Meanwhile, as Officers Cledon and Lopez pursued Esco on foot, Officer Cledon relayed over his radio, “he‘s running
A few seconds after Officer Lopez arrived at the scene of the arrest, he let an officer on the scene know that his partner, Officer Segovia, had recovered the weapon. As the officers continued to recоunt to one another what had happened, an unknown officer approached Officer Cledon and said, “that‘s not the same guy that they were looking at with the cameras.” R. 8-2 at 4:50. Officer Cledon responded, “he was with him. We got that guy too. We got the gun.” R. 8-2 at 4:52. Officer Lopez then made a phone call to Officer Segovia in which the two exchanged information about what was happening in either location, and Officer Segovia confirmed again that he had recovered the weapon. When the call ended, Officer Cledon сontinued to talk with various officers at the scene of Esco‘s arrest and explained, while gesturing toward Esco, “he walked up to the car. Tossed the gun. He took off running.” R. 8-2 at 5:37. Shortly after finishing the search of Esco, Officer Cledon asked Officer Lopez “this guy just has weed?” to which Officer Lopez responded, “No, he‘s the one that tossed it,” gesturing at Esco. R. 8-2 at 5:58. In sum, by the end of Esco‘s arrest, all of the relevant officers on the scene had heard
Back at the location where the gun was discarded, Officer Segovia relayed to arriving officers that he had “watched the guy put the gun under there,” gesturing to a car. R. 8-1 at 6:09. He repeated the information about seeing Esco put the gun under the car to those officers no less than five times. About a minute later, Officer Segovia answered a phone call and explained: “The guy that ran, that they grabbed, he‘s the one I watched put the gun under the car. I promisе, I saw him right with my eyes.” R. 8-1 at 10:50. The last minutes of Officer Segovia‘s body-worn camera video are filled with his relaying again and again how he watched Esco throw a gun under the car.
Viewed as a whole, the video undoubtedly supports a finding that the officers had probable cause to believe that Esco was the person who possessed and then discarded the weapon. At the moment Officer Segovia excitedly exclaimed to Officers Lopez and Cledon that the man who was running, and whom they were chasing, just discarded a gun, he not only demonstrated his оwn belief that Esco possessed a weapon, but he also relayed to the two other officers information that gave them probable cause to stop Esco. An identification by even one eyewitness who lacks an apparent grudge against the accused person is sufficient to demonstrate probable cause. Moorer, 92 F.4th at 721. And police officers can rely on directions and information transmitted from one officer to the other to establish probable cause. United States v. Hensley, 469 U.S. 221, 233–35 (1985); United States v. Parra, 402 F.3d 752, 764 (7th Cir. 2005). Esco also did not respond to Officer Segovia‘s verbal commands to “come here” and to “stop.” R. 8-1 at 3:02, 3:04. We cannot know whether Esco heard the commands or not, but because the reasonableness of an arrest is evaluated from the viewpoint of the officer, Esco‘s failure to heed his commands factored into his reasonable belief that Esco had committed or was committing a crime. Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (“Headlong flight—wherever it occurs—is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.“)
The video also shows Officer Segovia quickly recovering the weapon under the car without much search, verifying for him that what he thought he saw, did, in fact, happen. Officer Segovia‘s later assertions of certainty, made only minutes after that first exclamation, lend further support to the notion that Officer Segovia firmly believed that Esco possessed a weapon. See, e.g., R. 8-1 at 6:08 (“I watched him put the gun under there“); R. 8-1 at 6:53 (“I saw him put the gun“); R. 8-1 at 7:06 (“I watched him go like this and put it under there, and I said hey, that‘s them, that‘s him“); R. 8-1 at 9:27 (noting that he witnessed Esco “thr[o]w that shit right under the car too“); R. 8-1 at 10:26 (“I could literally see, saw him fucking throw it“). Importantly, he also conveyed this information to the officers at the arrest scene. See R. 8-1 at 10:50 (“The guy that ran, that they grabbed, he‘s the one I watched put the gun under the car. I promise, I saw him right with my eyes.“). He then repeated the story to Officer Lopez several more times when the latter returned to the squad car. In sum, the video provides definitive evidence that Officer Segovia believed that Esco threw the weapon. But more importantly for the objective probable cause standard, it definitively demonstrates that
The video also supports a finding that a reasonable officer hearing, seeing, and knowing what the other officers did, would have had reason to believe that Esco committed a crime. In addition to hearing Officer Segovia yell that the man they were chasing discarded a gun and was running, they heard confirmation that he recovered the weapon, verifying that Officer Segovia was correct about seeing а discarded weapon. The arresting officers found Esco running northbound and matching the description Officer Cledon gave over the radio, thus confirming in their minds that Esco was the same person who had the weapon. Officer Cledon made clear to the arresting officers, “we got the gun.” R. 8-2 at 4:25.
Esco‘s primary support for his theory that the officers knew he was not the person in possession of the gun comes from a statement that can be heard on Officer Cledon‘s body-worn camera video. On that video, an officer not involved in the original sighting оr chase said to Officer Cledon, “hey, that‘s not the same guy that they were looking at with the cameras.” R. 8-2 at 4:50. The defendants concede that this was true; Esco was not the “same guy” that the officers were originally looking at with the POD. There were two distinct crimes with two distinct weapons in this case. The police arrived at North Pine Avenue to investigate one crime involving a man with a weapon, but on route, they came upon a second crime in which a suspect (Esco) threw a weapon under a car and ran. Officer Cledon immediately cleared up the unknown officer‘s confusion saying, “he was with him. We got that guy too. We got the gun.” R. 8-2 at 4:52 (emphasis ours). The unknown officer answered “oh,” without adding any
Esco also argues that Officer Cledon was confused about whether Esco had a gun, because he asked Officer Lopez at the end of the arrest “this guy just has weed?” R. 8-2 at 5:58. See Esco Br. at 15. We cannot know exactly what Officer Cledon meant by his question—whether he was inquiring whether Esco had other drugs too; whether he was clarifying whether the man detained in the squad car was the same man he had been chasing, or something else. We need not resolve whether, during this high adrenaline chase and quick aftermath, there were occasional moments of confusion. Probable cause depends on the totality of the circumstances. Maryland v. Pringle, 540 U.S. 366, 371 (2003). Temporary confusion by a bystanding officer who was not involved in the pursuit and arrest, or requests for assurances about the factual circumstances, factor into an assessment of the totality of the circumstances but cannot upset other clear indicia of probable cause.
Long before his question to Officer Lopez, Officer Cledon appeared confident in his knowledge that Esco tossed the gun and ran, conveying to the other officers that the suspect they chased had a weapon and it had been recovered. See R. 8-2 at 5:37 (Officer Cledon gesturing toward Esco and explaining to the other officers at the scene of the arrest, “he walked up to the car. Tossed the gun. He took off running.“). And any confusion that the unknown officer had about whether Esco had a gun was quickly cleared up. Collectively, therefore, the
B. Malicious prosecution
Esco also makes a claim under the highly disfavored Illinois state tort of malicious prosecution. See Levin v. King, 648 N.E.2d 1108, 1110 (Ill. App. Ct. 1995) (“Illinois courts have long disfavored actions for malicious prosecution“) (citing Schwartz v. Schwartz, 8 N.E.2d 668, 670 (Ill. 1937)). To establish a claim for malicious prosecution, a plaintiff must show: “(1) the commencement or continuance of an original criminal or civil judicial proceeding by the defendant; (2) the termination of thе proceeding in favor of the plaintiff; (3) the absence of probable cause for such proceeding; (4) the presence of malice; and (5) damages resulting to the plaintiff.” Swick v. Liautaud, 662 N.E.2d 1238, 1242 (Ill. 1996); see also Holland v. City of Chicago, 643 F.3d 248, 254 (7th Cir. 2011) (same).
In any event, Esco also failed to prove, as required by step two, that the proceeding terminated in his favor. Prior to any trial on the state court weapons charges, the court granted the State‘s motion to dismiss the charges nolle prosequi. For purposes of Illinois malicious prosecution claims, bare evidence of a nolle prosequi does not establish that the underlying criminal proceeding was terminated in the defendant‘s favor. Swick, 662 N.E.2d at 1242. Esco held the burden to demonstrate that “the nolle prosequi was entered for reasons consistent with his innocence.” Id. at 1243. “The circumstances surrounding the abandonment of the criminal proceedings must compel an inference that there existed a lack of reasonable grounds to pursue the criminal prosecution.” Id. Esco offers nothing more than the bare evidence that the state court entered a nolle prosequi order, without explanation of why the court entered the order. This is insufficient under Illinois law as evidence of a favorable termination of criminal proceedings.
C. The remaining claims
Because Esco‘s Fourth Amendment and state law malicious prosecution claims have been defeated, the claims for indemnification by the City and for respondeat superior also fail. Additionally, the district court did not abuse its