Jewett, Terrance v. Anders, Dale ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2982
TERRANCE JEWETT,
Plaintiff-Appellee,
v.
OFFICER DALE ANDERS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 04 C 867—Charles N. Clevert, Jr., Judge.
____________
ARGUED SEPTEMBER 27, 2007—DECIDED APRIL 11, 2008
____________
Before BAUER, RIPPLE and KANNE, Circuit Judges.
RIPPLE, Circuit Judge. Terrance Jewett filed this action
under 42 U.S.C. § 1983 against Officer Dale Anders, a
Milwaukee police officer. He alleges that Officer Anders
unlawfully arrested him and used excessive force in
effectuating the arrest in violation of the Fourth Amend-
ment, as made applicable to the states by the Fourteenth
Amendment. He also alleges that Officer Anders de-
prived him of liberty without due process of law in viola-
tion of the Fourteenth Amendment. Officer Anders
filed a motion for partial summary judgment on the
unlawful arrest and deprivation of liberty claims. He also
2 No. 06-2982
asserted qualified immunity with respect to these allega-
tions. The district court denied his motion. Officer Anders
then timely filed an interlocutory appeal in this court.
For the reasons set forth in this opinion, we reverse
the judgment of the district court.
I
BACKGROUND
A.
In this interlocutory appeal from a denial of qualified
immunity on summary judgment, we have jurisdiction to
consider only the purely legal question of whether, for
purposes of Officer Anders’ qualified immunity defense,
a given set of facts demonstrates a violation of clearly
established constitutional law. Leaf v. Shelnutt, 400 F.3d
1070, 1078 (7th Cir. 2005). Accordingly, we must rest our
analysis on the facts asserted by the plaintiff, Mr. Jewett,
see Knox v. Smith, 342 F.3d 651, 656 (7th Cir. 2003) (noting
that, where “one side concedes the other’s facts as to
what happened,” the qualified immunity question becomes
a question of law), or assumed by the district court in its
denial of summary judgment, Washington v. Haupert, 481
F.3d 543, 549 n.2 (7th Cir. 2007) (explaining that we may
“take, as given, the facts that the district court assumed
when it denied summary judgment” (quoting Johnson v.
Jones, 515 U.S. 304, 319 (1995))); McKinney v. Duplain, 463
F.3d 679, 688 (7th Cir. 2006); Leaf, 400 F.3d at 1078-79.
On December 21, 2003, the Milwaukee Police Depart-
ment was investigating an attempted homicide that had
occurred the previous day. In connection with this investi-
gation, Officer Dale Anders was ordered to meet several
No. 06-2982 3
other officers at the Wal-Mart store on Capitol Drive and
60th Street. The officers were under instructions to appre-
hend Andre Thompson, who worked in the automotive
department of the Wal-Mart. The Milwaukee police
suspected that Thompson had been the perpetrator of
the previous day’s shooting; the officers had been ad-
vised that Thompson was armed.1
Officer Anders and his partner, both of whom were
in full police uniform, arrived at the Wal-Mart in a
marked police vehicle. Officer Anders parked the squad
car in a position west of the store. While in the Wal-Mart
parking lot, he observed an individual peer out of a
door located at the south side of the Wal-Mart building.
Shortly thereafter, he observed a young black male exit
the Wal-Mart through a door located on the north side
of the building; this individual subsequently was identified
as Terrance Jewett. This sequence of events caused Officer
Anders to become suspicious. Believing that Mr. Jewett
might be Thompson, Officer Anders started following
him in the marked police car. As Officer Anders neared,
Mr. Jewett turned and ran back toward the Wal-Mart.
Upon seeing Mr. Jewett run, Officer Anders exited his
vehicle and ordered him to stop. Officer Anders claims that
he identified himself as a police officer; Mr. Jewett main-
tains that he heard someone yelling for him to stop but that
the individual did not identify himself as a police officer.
1
Officer Anders submitted an affidavit to the district court
stating: “Officers had been advised that we were to proceed to
[the Wal-Mart] to look for and apprehend one Andre Thompson,
who had a birth date of January 24, 1981, and who had a
physical description of being a black male, 6’3” tall, and
approximately 216 pounds.” R.27 ¶ 4, at 1.
4 No. 06-2982
Mr. Jewett continued running until he reached the Wal-
Mart door and then started to pound frantically on it.
Having caught up with Mr. Jewett, Officer Anders
claims that he believed that he and his partner were in a
dangerous situation. Mr. Jewett had failed to obey his
commands. Moreover, the Officer believed that Mr. Jewett
was Thompson and, on the basis of the earlier briefing,
that he was armed. Consequently, Officer Anders sought
to bring Mr. Jewett within his physical control by perform-
ing a “wall stun” on Mr. Jewett: he placed his hands
against the middle of Mr. Jewett’s back and pushed his
chest against the door. R.26 ¶ 31. Officer Anders then put
his forearms under Mr. Jewett’s armpits and pulled him
toward the ground. When he had Mr. Jewett face down on
the ground, Officer Anders grabbed Mr. Jewett’s hands,
brought them behind his back and handcuffed him.
Once he had secured Mr. Jewett in handcuffs, Officer
Anders conducted a search of his person. The Officer
retrieved Mr. Jewett’s identification from his pocket, which
identified him as Terrance Jewett rather than Andre
Thompson. Officer Anders placed Mr. Jewett inside the
squad car. At this point, Sergeant Pamela Holmes arrived
on the scene and spoke briefly with Mr. Jewett. Officer
Anders confirmed Mr. Jewett’s identification and issued
him a municipal citation for obstructing a police officer
based on Mr. Jewett’s failure to obey his commands to
stop.2 Officer Anders then released Mr. Jewett. According
to Mr. Jewett, the incident lasted approximately thirty
2
Mr. Jewett was cited for violating Milwaukee Code of Ordi-
nances § 105-138, entitled “Resisting or Obstructing an Officer.”
The citation eventually was dismissed by the City of Mil-
waukee on its own motion.
No. 06-2982 5
to forty minutes; Officer Anders claims that Mr. Jewett
was detained for twenty minutes.
B.
Mr. Jewett filed this section 1983 action against Officer
Anders. Specifically, Mr. Jewett claims that Officer Anders
arrested him unlawfully and used excessive force to
effectuate the arrest in violation of the Fourth Amend-
ment, as made applicable to the states by the Fourteenth
Amendment. Mr. Jewett also claims that Officer Anders
deprived him of liberty without due process of law in
violation of the Fourteenth Amendment.3 Officer Anders
moved for summary judgment on qualified immunity
grounds and on the merits with respect to all claims
except for the excessive force claim. The district court
denied his motion.
The district court determined that there was no evidence
that Officer Anders had the physical description of the
suspected perpetrator of the December 20th attempted
homicide that he was investigating. The district court
noted that
[i]n his affidavit, Officer Anders states that “Officers
had been advised that we were to proceed to [Wal-
Mart], to look for and apprehend one Andre Thomp-
3
Mr. Jewett’s complaint states: “Plaintiff was denied his
right to due process not to be deprived of liberty without due
process of law when he was shoved against a door, searched,
thrown to the ground, tightly cuffed, and forced to sit on his
hands in a squad car even after the officers were aware that
he was not involved in any crime.” R.1 ¶ 44.
6 No. 06-2982
son, who had a birth date of January 24, 1981, and
who had a physical description of being a black male,
6’3” tall, and approximately 216 pounds.”
R.37 at 4 n.1. The court ruled, however, that this asser-
tion constituted inadmissible hearsay. As a result, it
determined that Officer Anders had no other basis for
comparing Mr. Jewett’s physical characteristics with the
description of Thompson. The district court then con-
cluded that Officer Anders did not have probable cause
to arrest Mr. Jewett solely based on Mr. Jewett’s location,
the automotive department of Wal-Mart and his attempt
to escape after being commanded to stop by Officer
Anders. The court accordingly denied Officer Anders’
motion for summary judgment on the unlawful arrest
claims.
Next, the district court analyzed whether Officer Anders
was entitled to qualified immunity. The court set forth
the appropriate standard under Saucier v. Katz, 533 U.S.
194, 202 (2001). It ruled that Mr. Jewett had a clearly
established constitutional right to be free from arrest
without probable cause and that Officer Anders had not
presented sufficient evidence to enable the court to decide
that he did not violate that right. The district court accord-
ingly denied Officer Anders’ motion for summary judg-
ment.
II
DISCUSSION
A. Standard of Review
We review de novo a district court’s denial of summary
judgment on qualified immunity grounds. Sullivan v.
No. 06-2982 7
Ramirez, 360 F.3d 692, 696 (7th Cir. 2004). In conducting
our review, we do not evaluate the weight of the evid-
ence, judge the credibility of witnesses or determine the
ultimate truth of the matter; rather, we determine whether
there exists a genuine issue of triable fact. Anderson v.
Liberty Lobby, 477 U.S. 242, 249-50 (1986). Summary judg-
ment is proper if “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled
to a judgment as a matter of law.” Magin v. Monsanto Co.,
420 F.3d 679, 686 (7th Cir. 2005) (citing Fed. R. Civ. P. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
B. Interlocutory Jurisdiction
Although a district court’s denial of summary judg-
ment usually is an unappealable interlocutory order, an
“exception to this general rule exists for a district court’s
denial of qualified immunity on summary judgment.”
White v. Gerardot, 509 F.3d 829, 833 (7th Cir. 2007). In
reviewing a district court’s denial of qualified immunity,
we cannot “make conclusions about which facts the
parties ultimately might be able to establish at trial.” Leaf,
400 F.3d at 1078. Nor may we “reconsider the district
court’s determination that certain genuine issues of fact
exist.” Id. Our interlocutory jurisdiction extends only to
those “abstract issues of law,” Johnson, 515 U.S. at 317,
which do not “depend on the outcome of a disputed factual
question.” Leaf, 400 F.3d at 1078. In sum, this “[c]ourt’s
jurisdiction extends to interlocutory appeals . . . challeng-
ing a district court’s determination that a set of facts
demonstrate a violation of ‘clearly established’ constitu-
tional law and preclude the defendants from proffering
8 No. 06-2982
a qualified immunity defense.” Borello v. Allison, 446 F.3d
742, 747 (7th Cir. 2006) (internal quotation marks and
citation omitted).
Because of this limitation on our interlocutory jurisdic-
tion, our review of a denial of qualified immunity is
framed either by the facts as assumed by the district
court or by the facts as set forth by the plaintiff. White,
509 F.3d at 833-34. Here, Officer Anders is not challenging
the district court’s determination about the sufficiency
of the evidence, and he has accepted the facts as assumed
by the district court and as set forth by Mr. Jewett. There-
fore, because Officer Anders has made legal arguments
based on these facts, see id. at 835-37, we are satisfied
that we have jurisdiction over the case.
C. The Qualified Immunity Framework
The doctrine of qualified immunity shields from liability
public officials who perform discretionary duties. Belcher v.
Norton, 497 F.3d 742, 749 (7th Cir. 2007). Public officials,
police officers among them, often are called upon to
make difficult decisions in high pressure and high risk
situations. Inevitably, some of those decisions will be
mistaken. Subjecting police officers to liability for each
reasonable but ultimately mistaken decision would result
in “unwarranted timidity,” would deter talented candi-
dates from becoming police officers and would result in
lawsuits that distract officers from their duties. Malinowski
v. DeLuca, 177 F.3d 623, 626 (7th Cir. 1999) (citing Richard-
son v. McKnight, 521 U.S. 399, 409, 411 (1997)). At the same
time, there remains a “need to vindicate constitutional
violations by government officials who abuse their offices.”
Gregoire v. Class, 236 F.3d 413, 417 (8th Cir. 2000). The
No. 06-2982 9
doctrine of qualified immunity strikes a balance between
these conflicting concerns: It shields from liability police
officers “who act in ways they reasonably believe to be
lawful.” Anderson v. Creighton, 483 U.S. 635, 641 (1987).
Qualified immunity provides “ample room for mistaken
judgments,” and it protects all but the “plainly incompe-
tent or those who knowingly violate the law.” Hunter v.
Bryant, 502 U.S. 224, 227, 229 (1991) (quoting Malley v.
Briggs, 475 U.S. 335, 343 (1986)); Clash v. Beatty, 77 F.3d
1045, 1048 (7th Cir. 1996) (noting, in the excessive
force context, that the “police cannot have the specter of
a § 1983 suit hanging over their heads when they are
confronted with a dangerous fugitive, possible escapee, or
as long as their behavior falls within reasonable limits”).
The Supreme Court of the United States has articulated
a two-part test for qualified immunity: (1) whether the
facts, taken in the light most favorable to the plaintiff,
show that the defendant violated a constitutional right;
(2) whether that constitutional right was clearly estab-
lished at the time of the alleged violation. Saucier, 533 U.S.
at 201. Stated another way, qualified immunity will
shield Officer Anders if he can “demonstrate that he was
performing a discretionary function and that a reasonable
law enforcement officer would have believed that, at the
time he acted, his actions were within the bounds of the
law.” Belcher, 497 F.3d at 749; Saffell v. Crews, 183 F.3d 655,
658 (7th Cir. 1999).
Qualified immunity is an affirmative defense. Sparing
v. Vill. of Olympia Fields, 266 F.3d 684, 688 (7th Cir. 2001).
However, once the defense is raised, it becomes the plain-
tiff’s burden to defeat it. Mannoia v. Farrow, 476 F.3d 453,
457 (7th Cir. 2007); Spiegel v. Cortese, 196 F.3d 717, 723 (7th
Cir. 1999). If the plaintiff cannot establish that the facts,
10 No. 06-2982
taken in the light most favorable to the plaintiff, show
that the defendant violated a constitutional right—the first
step in the Saucier analysis—our inquiry ends, and sum-
mary judgment for the defendant is appropriate.
D. Officer Anders’ Detention of Mr. Jewett
We now turn to the first step in the Saucier analysis and
explore whether Officer Anders violated the constitu-
tional rights of Mr. Jewett.
The first issue that we must decide is whether Officer
Anders’ detention of Mr. Jewett constitutes an investiga-
tory Terry stop or a complete arrest. If Mr. Jewett’s deten-
tion constituted only an investigatory stop, the Fourth
Amendment requires the lower standard of reasonable
suspicion. United States v. Kirksey, 485 F.3d 955, 957-58
(7th Cir. 2007); see also Terry v. Ohio, 392 U.S. 1 (1968).4 If
Mr. Jewett was arrested, then the Fourth Amendment
requires the presence of probable cause. United States v.
Adamson, 441 F.3d 513, 519-20 (7th Cir. 2006). There is no
bright-line that separates a Terry investigatory stop from
a formal arrest. United States v. Vega, 72 F.3d 507, 515 (7th
Cir. 1995). The distinction hinges on the intrusiveness of
the detention, id., which is a “flexible and highly fact-
intensive” inquiry. United States v. Stewart, 388 F.3d 1079,
1084 (7th Cir. 2004). In denying Officer Anders qualified
4
Qualified immunity protects those officers who make a
reasonable error in determining whether there is reasonable
suspicion to conduct a Terry stop. Lindsey v. Storey, 936 F.2d
554, 559 (11th Cir. 1991); see also Feathers v. Aey, 319 F.3d 843, 850-
51 (6th Cir. 2003); Smith v. City of Chicago, 242 F.3d 737, 742-
43 (7th Cir. 2001).
No. 06-2982 11
immunity, the district court assumed that the detention
was an arrest.
We begin by examining whether Officer Anders’ actions,
as alleged by Mr. Jewett, can be characterized as a con-
stitutional investigatory stop authorized by Terry. Mr.
Jewett had a right to be free from a Terry stop unless
Officer Anders had reasonable suspicion. Terry, 392 U.S. at
30. To conduct a Terry stop, an officer must be “aware of
specific and articulable facts giving rise to reasonable
suspicion.” United States v. Tilmon, 19 F.3d 1221, 1224 (7th
Cir. 1994). Reasonable suspicion is more than a hunch but
less than probable cause and “considerably less than
preponderance of the evidence.” Illinois v. Wardlow,
528 U.S. 119, 123 (2000); United States v. Lenoir, 318 F.3d 725,
729 (7th Cir. 2003). It requires “some minimal level of
objective justification for making a stop,” given the totality
of the circumstances. United States v. Sokolow, 490 U.S. 1, 7
(1989). Moreover, “a court’s determination of reasonable
suspicion ‘must be based on common-sensical judgments
and inferences about human behavior.’” United States v.
Baskin, 401 F.3d 788, 791 (7th Cir. 2005) (quoting Ward-
low, 528 U.S. at 125). Because reasonable suspicion is
evaluated in light of the totality of the circumstances
known to the officer, we have noted that certain “behavior
may give rise to reasonable suspicion when viewed in
the context of other factors at play.” United States v.
Lawshea, 461 F.3d 857, 859 (7th Cir. 2006). Finally, in
evaluating the reasonableness of an investigatory stop,
we examine first whether the “officer’s action was justi-
fied at its inception” and, second, “whether it was reason-
ably related in scope to the circumstances which justified
the interference in the first place.” Terry, 392 U.S. at 20;
United States v. Wilson, 2 F.3d 226, 230 (7th Cir. 1993).
12 No. 06-2982
In determining whether Officer Anders’ action was
justified at its inception, we must consider whether it was
based on the applicable standard of reasonable suspicion.
The Supreme Court has considered whether an individ-
ual’s unprovoked flight is sufficient to give the officer
reasonable, particularized suspicion to warrant an investi-
gatory stop. Wardlow, 528 U.S. at 124. In Wardlow, a cara-
van of police officers was converging on a high-crime
area known for its heavy drug trafficking. As the police
approached the area, an officer observed an individual
look in the direction of the police caravan and then flee.
The Court declined to adopt a per se rule as to whether
headlong, unprovoked flight creates reasonable sus-
picion. Id. at 126 (Stevens, J., concurring in part and
dissenting in part). The Court nevertheless explained that
“[h]eadlong flight—wherever it occurs—is the consum-
mate act of evasion: It is not necessarily indicative of
wrongdoing, but it is certainly suggestive of such.” Id. at
124 (Rehnquist, C.J.). The Court held:
[U]nprovoked flight is simply not a mere refusal to
cooperate. Flight, by its very nature, is not “going
about one’s business”; in fact, it is just the opposite.
Allowing officers confronted with such flight to stop
the fugitive and investigate further is quite consistent
with the individual’s right to go about his business or
to stay put and remain silent in the face of police
questioning.
Id. at 125.
In examining whether Officer Anders’ actions were
“reasonably related in scope to the circumstances which
justified the interference in the first place,” Terry, 392
U.S. at 20, we must keep in mind that an investigatory
stop can involve a measured use of force. Indeed, we have
No. 06-2982 13
noted explicitly that a necessary corollary to the power
of the police to conduct an investigatory stop is the ability
to “use reasonable means to effectuate that stop.” United
States v. Felix-Felix, 275 F.3d 627, 636 (7th Cir. 2001),
overruled on other grounds by statute; see also Graham v.
Connor, 490 U.S. 386, 396 (1989); Weaver, 8 F.3d at 1244 (“It
is well-established that ‘[a] measured use of force . . .
appropriate to accomplish the purposes of [the] investiga-
tory stop’ does not convert a Terry stop into an arrest.”
(quoting Tom v. Voida, 963 F.2d 952, 958 (7th Cir. 1992))).
However, an officer’s use of force may escalate to the
point where the encounter becomes, as a matter of law,
a formal arrest. See United States v. Weaver, 8 F.3d at
1240, 1244 (7th Cir. 1993). In differentiating between the
two, the touchstone is reasonableness: Were the officer’s
actions reasonable in light of all the circumstances? Graham,
490 U.S. at 396. In evaluating whether the force that an
officer used to effectuate the investigatory stop was so
disproportionate to the purpose of such a stop as to con-
vert the encounter into a full arrest, we consider whether
“the surrounding circumstances g[a]ve rise to a justifiable
fear for personal safety” on the part of the officer, Tilmon,
19 F.3d at 1226; we also must consider “the defendant’s
own actions in resisting an officer’s efforts.” Lawshea, 461
F.3d at 860; see also Weaver, 8 F.3d at 1244 (noting that a
“suspect cannot complain that [a] police officer took
forcible steps to detain him when the suspect’s own
evasive actions created the need for those steps” (citing
Voida, 963 F.2d at 958-59 & n.6)). Given the potential
dangers involved in conducting investigatory stops, “Terry
allows an officer to conduct a pat-down search if the
officer has articulable facts that led him or her to believe
that the individual could be armed or present a threat to
others.” United States v. Hernandez-Rivas, 348 F.3d 595,
14 No. 06-2982
599 (7th Cir. 2003); see also Terry, 392 U.S. at 27. As we
have noted previously, “[t]o require an officer to risk his
life in order to make an investigatory stop would run
contrary to the intent of Terry.” Stewart, 388 F.3d at 1085(internal quotation marks and citation omitted).
Turning to the case before us, we believe that Officer
Anders’ detention of Mr. Jewett, at the time that the
Officer initiated the action, did not exceed the permissible
bounds of an investigatory detention under Terry. We
also believe that the measures employed by the Officer
were reasonable when evaluated under the totality of
the circumstances.
At the moment that he decided to conduct an investi-
gatory stop of Mr. Jewett, Officer Anders was at the
Wal-Mart to search for and arrest Andre Thompson.
Thompson was suspected by the police of having per-
petrated the shooting and attempted murder that
had occurred the previous day. Officer Anders had
been advised that Thompson could be armed, and he
reasonably considered Thompson to be dangerous
to himself, his partner and others. 5 Officer
5
We pause briefly to address the district court’s evidentiary
ruling, which bears on Officer Anders’ knowledge immediately
prior to his detention of Mr. Jewett. The district court excluded
Officer Anders’ statement that “[o]fficers had been advised
that we were to proceed to [the Wal-Mart] to look for and
apprehend one Andre Thompson, who had a birth date of
January 24, 1981, and who had a physical description of being
a black male, 6’3” tall, and approximately 216 pounds.” R.37
at 4 & n.1.
Our jurisdiction necessarily must extend to review of the
district court’s exclusion as inadmissible hearsay of Officer
(continued...)
No. 06-2982 15
5
(...continued)
Anders’ testimony regarding the information that he received
from his superiors when he was dispatched to the Wal-Mart
to apprehend Andre Thompson. That issue is intertwined
with the issue of qualified immunity, and its consideration is
“necessary to ensure meaningful review of the qualified
immunity question.” Henry v. Purnell, 501 F.3d 374, 377 (4th Cir.
2007) (noting that a court of appeals’ jurisdiction “over an
interlocutory appeal of the denial of qualified immunity also
provides a basis for consideration of other district court rul-
ings that are ‘inextricably intertwined’ with the decision of the
lower court to deny qualified immunity or when consideration
of the additional issue is necessary to ensure meaningful
review” (internal quotation marks and citation omitted)); see also
Walczyk v. Rio, 496 F.3d 139, 153 (2d Cir. 2007); Meals v. City of
Memphis, Tenn., 493 F.3d 720, 727 (6th Cir. 2007); A.W. v. Jersey
City Pub. Schs., 486 F.3d 791, 795 n.5 (3d Cir. 2007); Kirkland v. St.
Vrain Valley Sch. Dist. No. Re-1J, 464 F.3d 1182, 1198 (10th Cir.
2006); Walker v. City of Pine Bluff, 414 F.3d 989, 993 (8th Cir. 2005);
Wallace v. County of Comal, 400 F.3d 284, 292 (5th Cir. 2005)
(cautioning that the “exercise of this jurisdiction is only proper
in rare and unique circumstances” (internal quotation marks
and citation omitted)); Kwai Fun Wong v. United States, 373 F.3d
952, 960-61 (9th Cir. 2004); Limone v. Condon, 372 F.3d 39, 51 (1st
Cir. 2004) (explaining that the doctrine must be used only “to
ensure meaningful review of the linchpin issue”); Hudson v. Hall,
231 F.3d 1289, 1294 (11th Cir. 2000); cf. Swint v. Chambers County
Comm’n, 514 U.S. 35, n.2 & 50-51 (1995) (discussing the scope
of pendant appellate jurisdiction in the collateral order context).
In the district court’s view, the statement in question was
inadmissible hearsay. We respectfully cannot agree. The
statement is offered to demonstrate the effect of this information
on Officer Anders as he encountered Mr. Jewett and to explain
the Officer’s actions in detaining Mr. Jewett, United States v.
Norwood, 798 F.2d 1094, 1097-98 (7th Cir. 1986); United States v.
(continued...)
16 No. 06-2982
Anders observed an individual peering out of the door
of the Wal-Mart where Thompson was thought to be. The
Officer then observed the individual, later identified as
Mr. Jewett, exit the Wal-Mart. Officer Anders drove toward
him in order to determine whether the individual en-
gaging in this suspicious behavior was Thompson. As
Officer Anders neared, Mr. Jewett fled without provoca-
tion and continued running despite Officer Anders’ calls
for him to stop.6 Once Mr. Jewett reached the door of the
5
(...continued)
1982 Yukon Delta Houseboat, 774 F.2d 1432, 1434 (9th Cir. 1985),
not to prove the truth of the matter asserted. All that matters
is that the statement was made and that Officer Anders heard it.
Mr. Jewett disputes the veracity of Officer Anders’ assertion
that he had been given Thompson’s height and weight. Specifi-
cally, Mr. Jewett maintains that Officer Anders inserted into his
police notebook Thompson’s weight and height only after he
had detained Mr. Jewett. Given the posture of this case, we
may not rely on that portion of the statement. Mr. Jewett,
however, does not take issue with Officer Anders’ assertion that
he had been told to proceed to the Wal-Mart to arrest Thomp-
son, a black male of approximately 22 years, the suspected
perpetrator of the previous days’ attempted homicide. There-
fore, we consider only that portion of the statement in our
analysis.
6
Mr. Jewett submits that Officer Anders’ actions were unrea-
sonable because Mr. Jewett was not running away from the
police, but rather running back toward the Wal-Mart door
because he wanted to try to catch the door before it closed and
locked. Mr. Jewett claims that he had left his keys inside the
Wal-Mart and that he had run back to retrieve them. Mr. Jewett
also maintains that he did not see Officer Anders in the
marked police squad car or in his police uniform, and he did not
(continued...)
No. 06-2982 17
Wal-Mart, he began pounding frantically to gain entrance.
Upon reaching him, Officer Anders pushed him into the
door, brought him face down onto the floor and
handcuffed him. Given Officer Anders’ reasonable belief
that Mr. Jewett was Thompson, who was wanted for
attempted murder and whom the police believed to be
armed, this procedure was “appropriate to accomplish
the purpose of [the] investigatory stop.” Weaver, 8 F.3d at
1244 (alteration in original); United States v. Dykes, 406
F.3d 717, 720 (D.C. Cir. 2005) (holding that the police’s
tackling of a suspect did not convert a Terry stop into an
arrest where the suspect was in flight, and the police
reasonably believed that he was armed); Lawshea, 461 F.3d
at 860-61 (holding that the use of a police dog to effectuate
a stop did not convert the detention into an arrest). It
allowed Officer Anders to frisk Mr. Jewett safely and to
confirm whether Mr. Jewett in fact was Thompson while
minimizing the danger to himself and to his partner. See
Stewart, 388 F.3d at 1085 (holding that it was not unreason-
6
(...continued)
hear Officer Anders identify himself as a police officer. Never-
theless, Mr. Jewett’s subjective motivations for running away are
irrelevant, as is the fact that he did not hear Officer Anders
identify himself as a police officer. When determining whether
a police officer has reasonable suspicion to conduct an inves-
tigatory stop, we “look to the officer[’s] knowledge at the time
of the [detention], not the suspect’s.” Marshall ex rel. Gossens
v. Teske, 284 F.3d 765, 773 (7th Cir. 2002) (Manion, J., concurring)
(citing United States v. Gilbert, 45 F.3d 1163, 1166 (7th Cir. 1995)).
From Officer Anders’ perspective, he observed suspicious
behavior and an individual matching Thompson’s description
running away from him as he exited his marked police
squad car.
18 No. 06-2982
able for officers to handcuff an individual whom they
believed had perpetrated a violent crime and whom they
suspected was armed); Tilmon, 19 F.3d at 1228 (“When a
suspect is considered dangerous, requiring him to lie
face down on the ground is the safest way for police
officers to approach him, handcuff him and finally deter-
mine whether he carries any weapons.”). Given the totality
of the circumstances, the force that Officer Anders used
to effectuate the investigatory stop did not convert the
encounter into a full arrest.7 Moreover, because Officer
Anders had reasonable suspicion to detain Mr. Jewett,
we hold that his action “was justified at its inception.”
Terry, 392 U.S. at 20.
Once he had secured Mr. Jewett, Officer Anders frisked
him, and, during the frisk, he retrieved Mr. Jewett’s
identification from his pocket, which identified him as
Terrance Jewett rather than Andre Thompson. We have
held that an officer may retrieve an individual’s identi-
fication from his wallet. United States v. Brown, 366 F.3d
456, 461 (7th Cir. 2004) (“[A]n officer may check an individ-
ual’s identification in his wallet during a Terry stop.”);
Hernandez-Rivas, 348 F.3d at 599. Officer Anders then
placed Mr. Jewett in the squad car while he confirmed
7
Officer Anders’ motion for partial summary judgment did not
request summary judgment on the merits or on qualified
immunity grounds as to Mr. Jewett’s excessive force claim. We
acknowledge that our holding that Officer Anders’ use of force
in effectuating the investigatory stop did not convert the
encounter into a formal arrest is in tension with Mr. Jewett’s
excessive force claim. The parties have not briefed this matter
on appeal, and, more important, Mr. Jewett’s excessive force
claim is not before us.
No. 06-2982 19
his identification, issued him a municipal citation for
obstructing a police officer and released him. See Stewart,
388 F.3d at 1084 (placing briefly an individual in a
squad car does not convert a Terry stop into an arrest);
Tilmon, 19 F.3d at 1228; Vega, 72 F.3d at 515.
The length of the detention is a factor in determining
whether an investigatory stop was transformed into a
formal arrest. Although Officer Anders claims that the
entire incident—from the time that Mr. Jewett fled until
the time that he was released—lasted twenty minutes,
we are required, given the procedural posture of this case,
to assume Mr. Jewett’s version of thirty to forty minutes.
The length of Mr. Jewett’s detention alone did not convert
the investigatory stop into an arrest.8 Indeed, we have
noted that “[t]here is no bright-line rule as to how long
an investigative detention may last; instead we look to
whether the police diligently pursued a means of investi-
gating that was likely to confirm or dispel quickly their
suspicions.” United States v. Adamson, 441 F.3d 513, 521
(7th Cir. 2006). Furthermore, we have explained that
“[w]hen delay is attributable to the evasive actions of a
suspect, the police do not exceed the permissible duration
of an investigatory stop.” Cady, 467 F.3d at 1063. In this
case, Mr. Jewett’s evasive actions caused Officer Anders to
chase, apprehend and frisk him and further caused Officer
Anders to issue him a municipal citation, all of which
contributed to the time that Mr. Jewett was detained. There
8
See, e.g., Cady v. Sheahan, 467 F.3d 1057, 1063 (7th Cir. 2006)
(twenty to thirty minutes); Vega, 72 F.3d at 515 (sixty-two
minutes); United States v. Davies, 768 F.2d 893, 902 (7th Cir. 1985)
(forty-five minutes); see also, e.g., United States v. Gil, 204
F.3d 1347, 1350-51 (11th Cir. 2006) (seventy-five minutes).
20 No. 06-2982
is no indication that Officer Anders detained Mr. Jewett
longer than necessary to complete his investigation and
issue the municipal citation.
Consequently, we conclude that Officer Anders’ investi-
gatory stop of Mr. Jewett was “reasonably related in scope
to the circumstances which justified the interference in
the first place.”9 Terry, 392 U.S. at 20.
Conclusion
Accordingly, we hold that Mr. Jewett’s detention fell
within the bounds of a constitutional investigatory stop.
We cannot say that Officer Anders acted unreasonably
in detaining Mr. Jewett to determine his identity. Officer
Anders therefore is entitled to qualified immunity as to
9
Mr. Jewett’s complaint also sought redress because Officer
Anders “deprived him of liberty without due process of law.”
R.1 ¶ 44. Mr. Jewett’s complaint does not explain whether the
focus of his claim is a deprivation of procedural or substan-
tive due process. The Supreme Court has cautioned that a
substantive due process claim may not be maintained where a
specific constitutional provision protects the right allegedly
violated—in this case, the Fourth Amendment—and, therefore,
we construe Mr. Jewett’s claim as an alleged deprivation of
procedural due process. United States v. Lanier, 520 U.S. 259, 272
n.7 (1997); Graham v. Connor, 490 U.S. 386, 394 (1989). Further-
more, because we have determined that Officer Anders’ deten-
tion of Mr. Jewett was within the constitutional bounds set
forth by Terry, his procedural due process claim cannot suc-
ceed. Doyle v. Camelot Care Ctrs., Inc., 305 F.3d 603, 616 (7th Cir.
2002) (explaining that a procedural due process claim requires
a plaintiff to show that a state actor caused a deprivation of a
constitutionally protected liberty interest).
No. 06-2982 21
Mr. Jewett’s claims of unlawful arrest and deprivation of
liberty. The judgment of the district court is reversed,
and the case is remanded for further proceedings. Officer
Anders may recover his costs of this appeal.
REVERSED and REMANDED
USCA-02-C-0072—4-11-08