D. Z. v. Mark Buell , 796 F.3d 749 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 14-1490
D.Z., by his Next Friend,
A. Thompson,
Plaintiff-Appellant,
v.
MARK BUELL,
Defendant-Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 C 7580 — Daniel G. Martin, Magistrate Judge.
ARGUED NOVEMBER 14, 2014 — DECIDED AUGUST 6, 2015
Before BAUER, FLAUM, and TINDER, Circuit Judges.
BAUER, Circuit Judge. Plaintiff-appellant, D.Z., a minor,
filed suit under 42 U.S.C. § 1983, claiming that defendant-
appellee, Evanston Police Officer Mark Buell (“Buell”), violated
his rights under the Fourth Amendment when he detained
D.Z. in connection with a reported burglary. Buell moved for
summary judgment, raising, inter alia, the defense of qualified
immunity. The district court granted Buell’s motion, finding
2 No. 14-1490
that Buell’s stop of D.Z. was supported by reasonable sus-
picion and that, assuming that D.Z.’s detention amounted to a
custodial arrest, Buell was entitled to qualified immunity
because he had arguable probable cause to arrest D.Z. We
affirm.
I. BACKGROUND
On August 30, 2012, a resident in Evanston, Illinois,
reported that she had observed a burglar in her home. She
described the intruder to a police dispatcher as a “young boy,
African American, [wearing] cargo khaki shorts, dark brown
T-shirt or [a] dark shirt.” Additionally, she told the dispatcher
that she had observed the intruder running northbound down
an alley. The dispatcher relayed the description of the intruder
on the police dispatch radio, describing the suspect as a “black
male, probably in his teens, wearing a dark shirt, and khaki
cargo shorts.”
Buell, in addition to several other Evanston police officers,
heard the broadcast while he was driving with a fellow officer,
Russell Brown. Upon hearing the broadcast, which did not
include any detail about the direction of flight that the suspect
took, the officers drove toward the location of the burglary. As
they were searching in the area, one of them noticed an
individual on a bicycle matching the suspect’s description at a
nearby intersection heading east. After notifying the police
dispatcher of the sighting, the officers attempted to catch up to
the cyclist but were unable to do so. Shortly thereafter, the
dispatcher sent out a second description of the suspect,
describing him as “a male, black juvenile with a dark shirt and
khaki, uh, shorts or pants, cargo pants.” Another officer alerted
No. 14-1490 3
dispatch that he had spotted an individual on a bicycle at an
intersection just south of the victim’s house. The officer
stopped the individual and detained him until the burglary
victim could come to the scene for a “show up.” When she
arrived, however, she stated that the person who had been
stopped was not the individual who had entered her home.
The officer radioed to say that no other units were needed, and
the search continued.
Around the same time, Officer Amy Golubski reported a
suspect riding a bicycle near Chute Middle School, which is
located less than a half mile south of the scene of the burglary.
She described the cyclist—D.Z.—as riding a blue bike and
wearing “cargo shorts [unidentifiable] dark navy or black …
[and] a light gray tank top, blue cap.” Golubski was directed
by someone over the radio to “put a stop” on the individual, so
she exited her vehicle and pursued D.Z. on foot. Ultimately,
Golubski was unable to catch up to D.Z., who rode his bike
through the field in front of the school (a shortcut that he
regularly took to get home). Buell heard Golubski on the radio
state that she could not catch the suspect and spotted Golubski
heading back quickly to her car. Both Buell and his partner
stated that Golubski sounded out of breath over the radio,
leading them to believe that D.Z. had tried to evade her.
Buell then attempted to catch D.Z. by turning down a
nearby street. He spotted D.Z. riding his bicycle and turning
into the driveway of a home located less than a half mile from
the victim’s home. Buell stated that he saw D.Z. turn and look
in his direction, before getting off his bike and heading to a
fence at the top of the driveway. Unaware that the residence
was D.Z.’s own, Buell sent out a radio dispatch that the suspect
4 No. 14-1490
was “cutting through the yards,” then exited his vehicle and
pursued D.Z. on foot. Buell stated that he saw D.Z. put his
hands on the fence, which led Buell to conclude that D.Z. was
trying to flee. Buell ordered D.Z. to stop and put his hands up,
an order that D.Z. promptly obeyed, and Buell placed him in
handcuffs. Buell subsequently brought D.Z. to the front of the
driveway and radioed for the burglary victim to be brought to
the scene for another “show up.” The victim arrived shortly
thereafter and stated that D.Z. was not the intruder, at which
point D.Z. was released.
D.Z. brought this action against Buell, pursuant to 42 U.S.C.
§ 1983, alleging that Buell violated his rights under the Fourth
Amendment when he detained him on August 30, 2012. D.Z.
also alleged various state-law claims against Buell and brought
suit against the City of Evanston, alleging a “failure to train”
claim, pursuant to Monell v. Dep’t of Soc. Servs., 436 U.S. 658
(1978), and several state-law claims. D.Z. voluntarily dismissed
his Monell claim against the City of Evanston and moved for
summary judgment on his Fourth Amendment claims against
Buell, which the district court denied. Buell also moved for
summary judgment, raising the defense of qualified immunity
as to D.Z.’s Fourth Amendment claims and state-law immunity
as to D.Z.’s state-law claims. The district court granted Buell’s
motion for summary judgment, finding that Buell had reason-
able suspicion to stop D.Z. and, assuming that D.Z.’s detention
amounted to a custodial arrest, that Buell was entitled to
qualified immunity because he had arguable probable cause to
arrest D.Z. As to D.Z.’s state-law claims against Buell, the
district court declined to exercise supplemental jurisdiction
No. 14-1490 5
and dismissed those claims without prejudice. This appeal
followed.
II. DISCUSSION
D.Z. contends that the district court improperly granted
summary judgment to Buell on his § 1983 claims. He argues
further that the district court erred in not considering the
testimony and affidavits of his proffered expert. We review
de novo the district court’s grant of summary judgment. Catlin
v. City of Wheaton, 574 F.3d 361, 365 (7th Cir. 2009). Summary
judgment is appropriate when, after viewing the facts in the
light most favorable to the non-moving party, the court finds
that there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. We also review
de novo a qualified immunity determination, Siliven v. Ind. Dep’t
of Child Servs., 635 F.3d 921, 925 (7th Cir. 2011), and review the
district court’s decision not to consider the testimony of D.Z.’s
expert witness for an abuse of discretion, Good Shepherd Manor
Found., Inc. v. City of Momence, 323 F.3d 557, 564 (7th Cir. 2003).
A. Qualified Immunity
“Qualified immunity protects public officials from liability
for damages if their actions did not violate clearly established
rights of which a reasonable person would have known.”
Catlin, 574 F.3d at 365. Neither party disputes that D.Z.’s
constitutional right to be free from unreasonable seizure was
clearly established at the time of the incident. Thus, since the
law was clear at the time of the incident, the only question is
whether Buell violated D.Z.’s constitutional rights when he
stopped and detained him on August 30, 2012. The district
court followed the parties’ preference in dividing the analysis
6 No. 14-1490
into whether Buell had reasonable suspicion to stop D.Z., and
the separate question of whether he had probable cause to
arrest D.Z. In the interest of consistency, we will do the same.
The Fourth Amendment prohibits unreasonable searches
and seizures, but police may conduct an investigatory stop of
an individual when the officer has reasonable suspicion that a
crime has occurred. Terry v. Ohio, 392 U.S. 1, 21–22 (1968). Such
stops, referred to as Terry stops, need not be supported by
probable cause; rather, they are permissible as long as officers
have a “reasonable articulable suspicion that criminal activity
is afoot.” United States v. Riley, 493 F.3d 803, 808 (7th Cir. 2007)
(quoting United States v. Lawshea, 461 F.3d 857, 859 (7th Cir.
2006)); see also Terry, 392 U.S. at 21–22. Reasonable suspicion is
more than a hunch—when an officer initiates a Terry stop, he
must be able to point to specific facts that suggest that a
stopped individual has committed, was committing, or is
about to commit an offense. Jewett v. Anders, 521 F.3d 818, 823
(7th Cir. 2008); Lawshea, 461 F.3d at 859.
In evaluating whether an officer had the requisite reason-
able suspicion to support a Terry stop, we must look at “the
totality of the circumstances known to the officer at the time of
the stop, including the experience of the officer and the
behavior and characteristics of the suspect.” Lawshea, 461 F.3d
at 859. For this reason, certain behavior that may seem inno-
cent under some circumstances, may amount to reasonable
suspicion when viewed in the context at play at the time of the
stop. United States v. Grogg, 534 F.3d 807, 810 (7th Cir. 2008)
(citing Lawshea, 461 F.3d at 859). The standard is objective and
asks, “would the facts available to the officer at the moment of
the seizure … warrant a man of reasonable caution in the belief
No. 14-1490 7
that the action taken was appropriate?” United States v. Tilmon,
19 F.3d 1221, 1224 (7th Cir. 1994) (internal citations and
quotations omitted). An officer’s subjective intent does not
factor into this analysis. United States v. Barnett, 505 F.3d 637,
639–40 (7th Cir. 2007).
Given the totality of the circumstances and the information
known to Buell at the time that he stopped D.Z., we agree with
the district court that Buell had reasonable suspicion to initiate
an investigatory stop. Buell responded to a police dispatch that
included five, specific identifying characteristics—race, age,
gender, shirt color, and type of shorts. While D.Z. argues that
this broadcast was too broad, such descriptions are not to be
viewed in isolation—the question of whether reasonable
suspicion exists goes beyond a suspect’s description, and may
include such factors as the temporal and geographic proximity
of the stop to the reported crime, and the behavior of the
suspect.
The evidence shows that within minutes of the police
dispatch, Buell and his partner headed toward the scene of the
burglary to look for the suspect in the area. Not having been
told that the suspect ran northbound down an alley, the
officers spotted an individual just south of the victim’s home
who somewhat matched the description of the suspect and
who was heading east on a bicycle. After relaying this informa-
tion over the radio, Buell, his partner, and other officers in the
area, began their search in the area immediately south of the
victim’s home—not an unreasonable decision, given the fact
that the bicyclist bore a resemblance to the dispatcher’s
description of the suspect and was spotted heading away from
the residence in the immediate vicinity of the victim’s home,
8 No. 14-1490
just minutes after the 911 call. D.Z., who matched most of the
five specific identifying characteristics to some extent, was also
riding his bike that afternoon, less than a quarter mile south of
the victim’s home, minutes after the 911 dispatch. Buell heard
Golubski’s dispatch and knew that she attempted to put a stop
on D.Z. and failed.
Based on a number of his own observations, Buell reason-
ably concluded that D.Z. had tried to evade Golubski. Al-
though it is undisputed that D.Z. was actually unaware that
Golubski tried to stop him, Golubski did not state over the
radio that D.Z. was oblivious to her pursuit, she merely
reported that she could not catch him and that she would have
to “drive around.” Buell testified that he saw Golubski head
quickly back toward her vehicle when she couldn’t reach D.Z.
and believed that she sounded out of breath when she told
dispatch that she was unable to make the stop.1 It is objectively
reasonable for an officer to conclude, based on a fellow officer’s
breathless tone of voice and behavior after unsuccessfully
attempting to stop a suspect, that the suspect was deliberately
trying to evade the officer. Thus, coupled with D.Z.’s character-
istics and proximity to the crime, Buell’s belief that D.Z. had
tried to outrun the police gave him reasonable suspicion to
stop D.Z.
1
Although D.Z. argues that whether Golubski ran or walked back to her
car is a disputed fact, he presents no evidence to support this contention.
We agree with the district court that Golubski’s statements regarding her
attempted stop of D.Z. are not contradictory and that Buell’s contention that
he saw Golubski head quickly to her car is supported by the record.
No. 14-1490 9
We now move on to the separate question of whether or not
Buell had probable cause to arrest D.Z. The Fourth Amend-
ment guarantees the constitutional right to be free from arrest
without probable cause. See Baker v. McCollan, 443 U.S. 137
(1979). “Probable cause is a common-sense determination,
measured under a reasonableness standard.” Humphrey v.
Staszak, 148 F.3d 719, 726 (7th Cir. 1998). A police officer has
probable cause to arrest a suspect if, at the time of the arrest,
the facts and circumstances within the officer’s knowledge are
sufficient to warrant a prudent person in believing that the
suspect has violated the law. Beck v. Ohio, 379 U.S. 89 (1964);
Wagner v. Wash. Cnty., 493 F.3d 833, 836 (7th Cir. 2007) (per
curium). However, even if probable cause is lacking with
respect to an arrest, an officer is entitled to qualified immunity
if his subjective belief that he had probable cause was objec-
tively reasonable. Humphrey, 148 F.3d at 726. Thus, when a
defense of qualified immunity has been raised, we ask whether
“the officer actually had probable cause or, if there was no
probable cause, whether a reasonable officer could have
mistakenly believed that probable cause existed.”
Humphrey, 148 F.3d at 725. In other words, we ask whether the
officer had “arguable” probable cause. Id.
The district court did not address whether Buell arrested
D.Z. or not; rather, it held that, even if an arrest took place,
Buell was entitled to qualified immunity because he had
arguable probable cause to effect an arrest. We agree. Buell’s
pursuit of D.Z. occurred immediately after he mistakenly, but
reasonably, concluded that D.Z. had evaded Golubski. He then
observed D.Z. turn into the driveway of a home, get off of his
bike and head to the fence, which led him to conclude that D.Z.
10 No. 14-1490
was “cutting through the yards.” Finally, he observed D.Z.
place his hands on the fence, which led him to conclude that
D.Z. was going to scale it.2 Under these facts, Buell had
arguable probable cause to effect an arrest. Although D.Z. was
not actually trying to run from the police, Buell’s mistaken
conclusion that he was does not preclude this court from
finding that Buell is entitled to qualified immunity. See Edwards
v. Cabrera, 58 F.3d 290, 293 (7th Cir. 1995) (“Even if probable
cause is lacking with respect to [an] arrest, despite the officers’
subjective belief that they had probable cause, they are entitled
to immunity as long as their belief was objectively reason-
able.”). Since we find that Buell reasonably believed, based on
the behavior he observed, that D.Z. was trying to evade the
police, Buell is entitled to qualified immunity.
2
D.Z. argues that the question of whether or not his hands were on the
fence, as Buell maintains and Brown corroborated, is in dispute. We
disagree. D.Z. argues that “[t]here is no plausible explanation as to why [he]
would have needed to place his hands on top of a fence” because the latch
was on the outside, facing him. However, D.Z. is silent on the issue of
whether he did, in fact, put his hands on the fence at any time before Buell
ordered him to stop. It is D.Z.’s responsibility to come forth with specific
facts demonstrating that a genuine issue of material fact exists for trial, and
he may not rely upon mere allegations and bare assertions to do so. See
Wollin v. Gondert, 192 F.3d 616, 621 (7th Cir. 1999). Because he failed to
present such evidence, even when the evidence is viewed in the light most
favorable to D.Z., there is no basis to dispute that Buell saw D.Z. place his
hands on the fence prior to the stop.
No. 14-1490 11
B. Excluded Expert Testimony
D.Z. argues that the district court erred in not considering
the statements of his proffered expert witness on summary
judgment. Courts have wide discretion in deciding whether to
admit expert testimony as part of summary judgment. Lewis v.
CITGO Petroleum Corp., 561 F.3d 698, 704–05 (7th Cir. 2009).
The district court disregarded the expert’s statements for
several reasons, the first of which being that D.Z. failed to
discuss the expert’s opinions in his brief below. Although D.Z.
cited to the expert’s report and deposition, the court found that
he did so without any specificity or discussion. Because courts
are “not required to scour the record looking for factual
disputes … [or] to piece together appropriate arguments,”
Little v. Cox’s Supermarkets, 71 F.3d 637, 641 (7th Cir. 1995)
(internal quotations and citations omitted), the district court
declined to consider D.Z.’s expert’s statements.
The district court’s decision does not constitute an abuse of
discretion. At the summary judgment level, “the district court’s
role in deciding the motion is not to sift through the evidence,
pondering the nuances and inconsistencies, and decide whom
to believe.” Waldridge v. American Hoechst Corp., 24 F.3d 918,
920 (7th Cir. 1994). The court is only tasked with deciding
whether, based on the evidence of record, there is any material
dispute of fact that requires a trial. Id. As D.Z.’s failure to cite
to the expert’s testimony with specificity left the district court
to sift through hundreds of pages of expert testimony, it was
not improper for the district court to decline to consider the
expert’s statements.
AFFIRMED