Willie Jacobs and Linda Siller, Plaintiffs-Appellants,
v.
City of Chicago , a municipal corporation; the estate of Sergeant Michael Garner; Officers Quintero, Buckner, McLean, Keith, and Garrido; and Metropolitan Enforcement Group Officers Huff, Martin, Sowinski, and McIntyre, Defendants-Appellees.
No. 99-2507
In the United States Court of Appeals For the Seventh Circuit
Argued January 14, 2000
Decided June 1, 2000
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 C 0954--Charles R. Norgle, Sr., Senior Judge. [Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted]
Before Flaum, Easterbrook, and Ripple, Circuit Judges.
Flaum, Circuit Judge.
Willie Jacobs and Linda Siller brought claims under 42 U.S.C. sec. 1983 against the City of Chicago and several individual Chicago police officers (the "Defendant Officers"), alleging violations of their Fourth Amendment right to be free from unreasonable searches and seizures and excessive use of force. The district court dismissed the complaint under Federal Rule of Civil Procedure 12(b)(6), finding that the defendants enjoyed qual ified immunity for all of the claims brought against them. For the reasons stated herein, we reverse and remand.
I. BACKGROUND1
Plaintiffs Willie Jacobs and Linda Siller live in Apartment #2 at 15138 Lincoln Avenue in Harvey, Illinois. There are three apartments in the building at this address. The wall next to the door of each apartment is marked by the word "Apt." followed by a number. Each apartment has its own separate outside entrance and its own doorbell. There are two gas meters located on the outside of the building providing service to the first and second floor apartments. The three apartments are each billed separately for electricity and telephone service. Apartment #2 is located on the second floor and has an outside entrance at the side of the building.
On February 18, 1997, defendant Officer Quintero of the Chicago Police Department obtained a search warrant for "Troy," a 30-year-old black male, and a single family residence at 15138 Lincoln Avenue in Harvey. The warrant was issued based on information, provided by a confidential informant, that а large amount of cocaine base was being sold out of the building.
Later that afternoon, the Defendant Officers went to the apartment building at 15138 Lincoln Avenue. They executed the warrant on the first floor apartment, which is entered through a door at the front of the building. The owner of the building Marie Golden lived in this apartment. She informed the officers that there were two other apartments in the building, that no one named Troy lived in the building, and that she did not know anyone named Troy. Golden also told the officers that someone named Jacobs lived in the upstairs apartment and that Jacobs was ill, having recently returned from the hospital. The Defendant Officers searched Golden's apartment.
The Defendant Officers then went back outside the building and around to the side entrance of Apartment # 2. They broke down the door without knocking or announcing that they were police officers executing a search warrant. An officer approached plaintiff Jacobs, a sixty- yеar-old man, and pointed a gun at his head. The officers then asked Jacobs if he was Troy, the thirty-year-old man who was the subject of the search warrant. Jacobs responded that he was not Troy and that no one named Troy lived in the apartment. Jacobs provided the officer with identification and told the officer that he needed to sit down because he felt faint. The officer kept the gun at Jacobs' head for over ten minutes while the other Defendant Officers began searching Jacobs' apartment. During the search, several items of furniture and many of the plaintiffs' personal belongings were damaged. One of the Defendant Officers claimed to have found a small amount of cocaine on a dresser in a bedroom used by Jacobs' grandchildren. The Defendant Officers then continued to search Jacobs' apartment for over three hours, detaining Jacobs in his home throughout the search. During this time, the Defendant Officers called in a canine unit to assist with the search, but the dog did not indicate the presence of any drugs in the apartment or on Jacobs' person.
Jacobs alleges that he suffered severe emotional injury as a result of the Defendant Officers' search of his apartment, their detention of him during the search, and their use of force by holding a gun to his head for several minutes. Shortly after this incident, Jacobs suffered a heart attack. Linda Siller was also an occupant of the apartment. She returned home after the search had been completed to find her property damaged. No one was arrested or prosecuted as a result of the search of the apartment building.
Jacobs and Siller filed suit under 42 U.S.C. sec. 1983 against the City of Chicago and the Defendant Officers, claiming that their Fourth Amendment rights were violated by the search of their apartment and the seizure of Jacobs as well as by the excessive use of force against Jacobs. The district court dismissed plaintiffs' complaint under Rule 12(b)(6), finding that the defendants enjoyed qualified immunity for all of the claims brought by the plaintiffs. Jacobs and Siller now appeal.2
II. DISCUSSION
The plaintiffs appeal the district court's dismissal of their complaint under Rule 12(b)(6) on the ground that the defendants are entitled to qualified immunity for all of the claims brought against them. We review the district court's dismissal de novo. See Payton v. Rush-Presbyterian St. Luke's Medical Center,
A. Consideration of Matters Outside of Complaint
The plaintiffs first contend that the district court erred when it considered several photographs of the apartment building, submitted by the defendants and the plaintiffs, and a copy of a police report, submitted by the defendants, in ruling on the defendants' motion to dismiss.
Federal Rule of Civil Procedure 12(b) states:
If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgement and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
By the plain language of this rule, when the defendants submitted photographs of the apartment building and a copy of a police report and the plaintiffs submitted their own photographs in response, the district court was obligated to either not consider the extraneous submissions in ruling on the motion or to convert the motion to one for summary judgment and provide the parties with an opportunity to submit supplementary materials. See Carter v. Stanton,
The error committed by the district court may constitute grounds for reversal. See id.; Travel All Over the World, Inc. v. Saudi Arabia, 73 F.3d 1423, 1430 (7th Cir. 1996). However, rather than remand for the district court to reconsider its opinion without looking at matters outside of the compliant, our usual practice is to determine whether the error was harmless by conducting our own de novo analysis of the complaint under the Rule 12(b)(6) standard without considering the extraneous materials relied upon by the district court. See General Elec. Capital,
State officials who occupy positions with discretionary or policymaking authority and are aсting in their official capacity may have qualified immunity for claims alleging that the state officials violated the constitutional rights of a plaintiff. Siegert v. Gilley,
To evaluate a claim of qualified immunity, we engage in a two-step analysis. First, we determine whether the plaintiffs' claim states a violation of their constitutional rights. Then, we determine whether those rights were clearly established at the time the violation occurred. See Wilson, 119 S.Ct. at 1697; Khuans v. School Dist. 100, 123 F.3d 1010, 1013 (7th Cir. 1997). If the rights were clearly established, the official may be liable for monetary damages and the suit proceeds to the next stage. If the rights were not clearly established, then the official is immune from suit and the claim is dismissed. See Richardson v. McKnight,
It is the plaintiffs' burden to demonstrate that a constitutional right is clearly established. Kernats v. O'Sullivan,
In this case, plaintiffs allege that the defendant Chicago police officers violated their clearly established Fourth Amendment rights. Police officers conducting a search are state officers with discretionary authority who are acting in their official capacity and may be protected by qualified immunity in suits challenging the constitutionality of their actions. See Anderson, 483 U.S. at 641.
C. Search
1. Constitutionality of Search
a. Validity of Search Warrant
Plaintiffs first argue that the search of their apartment violated their Fourth Amendment rights because it was not conducted pursuant to a valid search warrant. They allege that the warrant was invalid because it did not particularly describe the place to be searched.
A warrant is valid under the Fourth Amendment only where it is based "upon probable cause, supported by Oath or affirmation, and particularly describ[es] the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. Where a warrant fails to dеscribe with particularity the place to be searched, it is void. See Horton v. California,
The warrant in this case authorized the search of a single-family residence located at 15138 Lincoln Avenue in Harvey, Illinois. In fact, the building located at this address is a multi-unit building consisting of three separate residential apartments. Thus, on its face, the warrant does not describe the place to be searched with particularity. In addition, from the аllegations pled in the complaint, there is no indication that a neutral magistrate found either that there was probable cause to suspect illegal activity was being conducted in the plaintiffs' apartment or that Troy, the target of the search warrant, had access to the entire apartment building. However, "[t]he validity of the warrant must be assessed on the basis of the information that the officers disclosed, or had a duty of discover and to disclose, to the issuing Magistrate." Garrison,
B. Execution of Search Warrant
Plaintiffs next argue that even if the warrant was valid when it issued, the Defendant Officers violated their Fourth Amendment rights in the manner in which they executed that warrant.
In Maryland v. Garrison, the Supreme Court held that the search of Garrison's apartment was valid even though it was based on a warrant that was later discovered to be overbroad where the officers believed in good faith that the entire third floor of the building that was described in their search warrant was a single apartment and they discovered contraband in Garrison's apartment before becoming aware that there were in fact two apartments on the third floor. 480 U.S. at 80-81. However, the Court also stated that
[i]f the officers had known, or should have known, that the third floor contained two apartments before they entered the living quarters on the third floor, and thus had been aware of the еrror in the warrant, they would have been obligated to limit their search to [the search target's] apartment. Moreover, as the officers recognized, they were required to discontinue the search of respondent's apartment as soon as they discovered that there were two separate units on the third floor and therefore were put on notice of the risk that they might be in a unit erroneously included within the terms of the warrant.
Id. at 86-87. Similarly, in United States v. Higgins, we held that a search was unconstitutional where the officers executed an overbroad warrant, which failed to indicate which of three apartments located in the basement of an apartment building was to be searched, by searching all of the apartments until they found the one they were looking for.
In this case, the Defendant Officers were executing a search warrant issued for the entire building located at 15138 Lincoln Avenue. According to the allegations pled in the complaint, this building consists of three apartments, each accessed through a separate external entrance marked by the word "Apt." and followed by a number. A separate doorbell is located next to the entrance to each apartment, and there are two gas meters located on the outside of the house providing separate service to the first and second floor apartments. The plaintiffs' apartment was on the second floor and could not be reached from the first floor apartment by any means other than by exiting the first apartment, going around to the side of the building, and entering through a separate door. The Defendant Officers in this case executed the warrant first on the ground floor apartment. They were told by thе landlord who was occupying that apartment that the building contained multiple units and that the second floor apartment was occupied by a man named Jacobs. After learning this information, the Defendant Officers exited the first floor apartment, went around the outside of the building, and entered the plaintiffs' apartment by breaking down a locked door marked with the words "Apt. 2."
Taking these allegations as true, it appears that reasonable officers should have discovered before entering plaintiffs' apartment that the building at 15138 Lincoln Avenue was a multi-unit building consisting of separate apartments and that the warrant they were executing was overbroad. At the moment the Defendant Officers discovered the defect in the description of the place to be searched, they were obligated to cease that search if they could not determine which apartment was properly the subject of the warrant. The Defendant Officers concede in their briеf before this Court that they did not know which apartment was occupied by Troy at the time they conducted the search. Furthermore, there is nothing in the allegations of the com plaint that would have led a reasonable officer to conclude that plaintiffs' apartment was the appropriate target of the search. Because the search of plaintiffs' apartment occurred after it appears from the allegations in the complaint that a reasonable officer would have discovered a fatal defect in the warrant, we cannot conclude that the search was a valid execution of that warrant. See United States v. Ramirez,
C. Warrantless Search
The Defendant Officers finally argue that even if the search was not validly conducted pursuant to a warrant, it was proрerly executed as a warrantless search. The Defendant Officers assert that they were faced with exigent circumstances because during drug raids such as this one there is a strong probability that evidence will be destroyed. They further argue that they had probable cause to believe that Troy, the target of the search, was occupying one of the apartments in the building, and that because they had no reason to believe that it was not plaintiffs' apartment, they were justified in searching that apartment.
Where law enforcement officers have probable cause to believe that illegal activity is being conducted in a particu lar place and exigent circumstances exist, a warrantless search may be valid. See United States v. Marshall, 157 F.3d 477, 481-82 (7th Cir. 1998). Exigent circumstances may include the probability that evidence will be destroyed before a valid search warrant can be obtained from a neutral magistrate. Id. at 482. However, the bare fact that оfficers are executing a warrant to search for illegal narcotics is not sufficient to constitute exigent circumstances. Specific facts indicating that evidence is likely to be destroyed must be present in order for exigent circumstances to exist. See Richards v. Wisconsin,
The allegations as pled in the plaintiffs' complaint give no indication that exigent circumstances existed in this case. There are as yet no facts on the record that would support a reasonable officer's conclusion that evidence of a crime was in imminent danger of being destroyed inside the plaintiffs' apartment at the time the Defendant Officers' conducted the search.
More importantly, probable cause, as used in this context, means that the officers must have cause to believe that illegal activity is taking place in a particular location. See Butler, 71 F.3d at 248; Hinton,
Taking the allegations presented in the complaint as true, we cannot conclude that the search conducted in this case was made pursuant to a valid execution of a warrant or was a proper warrantless search. Therefore, on the current record, it appears that the search of plaintiffs' apartment violated their Fourth Amendment rights.
2. Clearly Established Law
We now consider whether the Defendant Officers' conduct violated clеarly established law.
At the time the search in this case was conducted, it was clearly established that a warrant is fatally overbroad when it authorizes the search of an entire multi-unit building where the officers do not have probable cause to believe either that there is illegal activity occurring in each separate unit of the building or that the entire building is under the "dominion and control" of the person targeted for the search. See Garrison,
As discussed above, based on the allegations in the complaint, it appears that the Defendant Officers should have known before entering the plaintiffs' apartment that 15138 Lincoln Avenue was not a single-family residence and that plaintiffs' apartment was a dwelling unit separate from the other apartments in the building. In addition, no facts are alleged that would permit the inference that the Defendant Officers suspected plaintiffs' apartment was controlled by Troy, the target of the search. It appears from the complaint that the Defendant Officers should have been aware that the warrant was overbroad, and there is no indication that the officers were certain that plaintiffs' apartment was the proper subject of the search. In fact, according to the complaint, the Defendant Officers chose to execute the seаrch warrant first on the ground floor apartment and proceeded to search plaintiffs' apartment only after they did not find what they were looking for in the first place they chose to search. Furthermore, there does not appear to be any independent probable cause for the Defendant Officers to believe that the plaintiffs' apartment in particular was the location of illegal activity.
From the facts pled in the complaint, we cannot conclude that the Defendant Officers in this case did not conduct a fishing expedition strikingly similar to the one we declared unconstitutional in Higgins.
D. Seizure
Plaintiff Jacobs next argues that the Defendant Officers violated his clearly established Fourth Amendment rights when they detained him for over three hours during the search of his apartment.
A person who is not free to leave his home while officers are conducting a search is "seized" for Fourth Amendment purposes. Michigan v. Summers, 452 U.S. 692, 696 (1981). An official seizure is ordinarily unreasonable unless it is supported by probable cause, even where nо formal arrest is made. See id.; Dunaway v. New York,
However, where a search is illegal and not supported by probable cause, the justification for using the search as the foundation for the seizure disappears because it was the connection of the individual with a location suspected of harboring criminal activity that provided the reasonable basis for the seizure. See Florida v. Royer,
As discussed above, on the facts alleged in the complaint, the search of the plaintiffs' home appears to be illegal and without probable cause. In addition, taking the allegations pled as true, the Defendant Officers in this case did not appear to have probable cause to believe that Jacobs was engaged in any illegal activity. The Defendant Officers were looking for a thirty-year-old man named Troy. Even if the officers had been justified in briefly detaining the-sixty- year-old Jacobs to ascertain if he were Troy, the manner in which the seizure is alleged to have been conducted, by breaking down the door to Jacobs' home and holding a gun to his head, and the three-hour duration of the seizure, do not appear on the facts presently alleged to be reasonable efforts to obtain this information. See Royer,
At the time the search of Jacobs' apartment was conducted, it was clearly established that a citizen may not be detained by law enforcement officials without probable cause. It was further clearly established that an illegal search does not confer probable cause to detain the subject of the search while it is being carried out. See Summers, 452 U.S. at 696. Therefore, we hold that, under the allegations presented in the complaint, the Defendant Officers do not enjoy qualified immunity to Jacobs' claims that their unlawful seizure of his person violated his Fourth Amendment rights.
E. Use of Force
Plaintiff Jacobs also asserts that the Defendant Officers violated his Fourth Amendment rights when one of the officers placed a gun tо Jacobs' head for over ten minutes during the initial period of the search of his apartment.
While "the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it," Graham v. Connor, 490 U.S. 386, 396 (1989), the Fourth Amendment prohibits the use of excessive force during the execution of a seizure, id. at 395 (holding that the Fourth Amendment's objective reasonableness test is the appropriate standard for evaluating excessive force claims). In order to decide whether the amount of force used during a seizure is "excessive," we examine the totality of the circumstances to determine whether the intrusion on the citizen's Fourth Amendment interests was justified by the countervailing government interests at stake. See Lanigan v. Village of E. Hazel Crest, 110 F.3d 467, 475 (7th Cir. 1997). The Fourth Amendment test is an objective one, where the officer's subjective good or bad intentions do not enter into the analysis. See Graham,
According to the allegations pled in the complaint, plaintiff Jacobs was sitting at home alone in his apartment behind a locked door when one of the Defendant Officers broke down his door, entered his apartment without warning and pointed a gun at Jacobs' head. The officer kept the gun pointed at Jacobs for over ten minutes, even after ascertaining that Jacobs was not the person he was looking for, and during which time Jacobs did nothing more threatening than provide the officer with his identification and ask the officer for permission to sit down. As discussed above, at the time the Defendant Officers entered Jacobs' apartment, they do not appear to have had probable cause to suspect Jacobs had committed any crime or to believe that any criminal activity was being conducted in Jacobs' apartment. Taking these facts as true, it appears that the Defendant Officers' use of force against Jacobs while executing an allegedly illegal search of his home and an allegedly unlawful seizure of his person was out of proportion to any danger that Jacobs could possibly have posed to the officers or any other member of the community. We, therefore, cannot conclude that, considering only the allegations pled in the complaint, the Defendant Officers' use of force did not violate Jacobs' Fourth Amendment rights.
At the time the Defendant Officers used force against Jacobs in this case, it was clearly established that "police officers do not have the right to shove, push, or otherwise assault innocent citizens without any provocation whatsoever." Clash v. Beatty,
III. CONCLUSION
For the reasons stated herein, we Reverse the district court's dismissal of plaintiffs' claims and Remand this case for further proceedings consistent with this opinion.
Notes:
Notes
Because this case was dismissed under Rule 12(b)(6), we take all of the plaintiffs' allegаtions as true for purposes of this opinion.
The district court dismissed the City of Chicago as a defendant in this matter because the plaintiffs failed to allege any policy or practice of constitutional violations that would render the city liable for the Defendant Officers' actions in this case. See Monell v. Dep't of Soc. Servs.,
We note that the dismissal of a sec. 1983 suit under Rule 12(b)(6) is a delicate matter that district courts should approach carefully. On one hand, courts have been admonished that qualified immunity is the ability to be free from suit, not merely a defense from liability, and that, therefore, the question of immunity should be decided at the earliest possible stage. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit,
The Supreme Court has recognized the tension in this area but has declined to address this issue. See Leatherman,
From the allegations in the complaint, it appears that simple investigation procedures, such as contacting the gas, electric, or telephone company, would have revealed that the residence at 15138 Lincoln Avenue is a multi-unit apartment building. We note that officers seeking a search warrant relying on information provided by a confidential informant are under an obligation to take reasonable steps to confirm that information before using it in an affidavit in support of the warrant. See Illinois v. Gates,
Plaintiffs also argue that the search was unconstitutional because the Defendant Officers entered their apartment by breaking down the door without knocking or announcing that they were police officers executing a search warrant. It is well-established that "the Fourth Amendment incorporates the common law requirement that police officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible entry." Richards, 520 U.S. at 387; Wilson v. Arkansas,
The allegations in the complaint state that one of the Defendant Officers claims to have discovered contraband in one of the bedrooms of Jacobs' apartment. The discovery of this contraband does not provide probable cause for the seizure of Jacobs because, under the facts pled in the complaint, that seizure occurred immediately upon the Defendant Officers' entry into the apartment and before any contraband that may have been linked to Jacobs was found. See Royer,
While it is not indicated in the complaint that the officer pointing the gun at Jacobs' head threatened to pull the trigger, it is a reasonable inference from the facts alleged that the act of pointing a loaded weapon at a person in the circumstances presented here carries with it the implicit threat that the officer will use that weapon if the person at whom it is directed does not comply with the officer's wishes.
Easterbrook, Circuit Judge, concurring in part and concurring in the judgment.
I join the judgment and all of the opinion other than the portions suggesting that a complaint may be dismissed under Fed. R. Civ. P. 12(b)(6) for failure to state a claim on which relief may be granted when, after receiving an answer and considering evidentiary submissions, the judge believes that the defendants are immune from damages liability. Immunity is an affirmative defense. Gomez v. Toledo,
In Gomez the Supreme Court distinguished immunity from failure to state a claim on which relief may be granted. "By the plain terms of sec.1983, two--and only two--allegations are required in order to state a cause of action under that statute. First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law." 446 U.S. at 640. The complaint in Gomez contained both allegations, and the Court therefore reversed an order dismissing it under Rule 12(b)(6). Crawford-El v. Britton,
It is not possible to exclude use of Rule 12(b)(6), which covers "failure to state a claim upon which relief can be granted". One can imagine circumstances under which the complaint sets out a "claim" within the ambit of Gomez yet narrates facts showing that it is impossible to award relief. For example, a litigant who demands damages from a Member of Congress on account of a speech made on the floor has pleaded himself out of court; it is not necessary for the defendant to assert immunity under Art. I sec.6 cl. 1, because the complaint itself demonstrates that, however strong the claim in the abstract (perhaps the speech slandered a non-public figure), the court is forbidden to redress the injury. See Charles Alan Wright & Arthur R. Miller, 5 Federal Practice and Procedure sec.sec. 1226, 1276 (2d ed. 1990) (discussing built-in defenses). Sometimes a complaint designed to skirt 'round immunity may reveal the claim's substantive weakness and justify dismissal on the merits under Rule 12(b)(6). See Buckley v. Fitzsimmons,
None of this is to deny what many cases have stressed: claims of immunity often justify dismissing a complaint in advance of discovery. But Crawford-El describes how this process should work.
Nothing turns on the choice among Rule 12(b)(6), Rule 12(c), and Rule 56 in this case, because defendants are not entitled to immunity under any standard, but in other cases the choice between decision without evidence (Rule 12) and decision with evidence (Rule 56) could be decisive. Many district judges treat Rule 12(b)(6) as a grant of authority to terminate cases that lack promising futures. We resist this tendency in other corners of the law, e.g., Walker v. National Recovery, Inc.,