NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 13, 2011*
Decided June 17, 2011
Before
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 10‐2859
CHRISTOPHER LEE, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 1:09‐cr‐03273
TYLER PRICE and DOUGLAS YORKE,
Defendants‐Appellees. George W. Lindberg,
Judge.
O R D E R
Christopher Lee, represented by counsel, sued two Illinois state troopers, claiming
that they violated his constitutional rights during a routine traffic stop by questioning him
for too long and conducting an unreasonable search. See
42 U.S.C. § 1983. The troopers
moved to dismiss on the grounds that their questions did not prolong the stop
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 10‐2859 Page 2
unreasonably and that the search was consensual. The district court agreed and dismissed
Lee’s suit.
That order was entered on April 7, 2010, and Lee had until May 7, 2010, to file a
notice of appeal. See FED. R. APP. P. 4(a)(1)(A). Instead, on May 7 he filed a pro se motion
under Federal Rule of Civil Procedure 60(b) asking the district court to “rehear” the case “in
its entirety.” He also requested leave to amend his complaint. Four days later, on May 11,
the court struck Lee’s motion because he was still represented by appointed counsel. The
court did not realize, however, that counsel had moved to withdraw the day before, in part
because Lee intended to file his pro se motion. Then on June 7, with appointed counsel now
out of the picture, Lee refiled his Rule 60(b) motion, along with a motion requesting an
extension of time to file a notice of appeal from the April 7 dismissal. The district court
promptly denied the Rule 60(b) motion but on July 28 extended the deadline for Lee to file a
notice of appeal. The court attributed Lee’s failure to meet the appeal deadline to a
disagreement with former counsel about what action, if any, to take after receiving the April
7 decision. The judge reasoned that the disagreement constituted good cause for Lee’s delay
and also allowed counsel’s inaction to be characterized as excusable neglect. See FED. R. APP.
P. 4(a)(5)(A)(ii).
Lee then filed a notice of appeal from the April 7 order, and in this court he contends
that the district judge erred in dismissing his lawsuit. His argument, though, is premised
not on the allegations in the complaint that was dismissed, but on new and contradictory
facts alleged in the proposed amended complaint he tendered with his Rule 60(b) motion.
One difference, for example, is that Lee alleges in his proposed complaint that he consented
to the search only after it was over. Lee assumes that he can rely on this proposed complaint
and that we can review it. But his only notice of appeal is from the April 7 decision and does
not bring up for review the order denying the Rule 60(b) motion; a second notice of appeal
would have been necessary to challenge that decision. Sosebee v. Astrue,
494 F.3d 583, 590
(7th Cir. 2007); Goffman v. Gross,
59 F.3d 668, 672‐73 (7th Cir. 1995).
Even if we could review the Rule 60(b) decision, we would not conclude that the
district court abused its discretion in refusing to accept Lee’s proposed complaint. Rule
60(b) is an extraordinary remedy, not a vehicle for amending a complaint. See FED. R. CIV. P.
60(b); Helm v. Resolution Trust Corp.,
84 F.3d 874, 876‐77, 879‐80 (7th Cir. 1996). Moreover,
amendment would have been futile because Lee could not draft a complaint capable of
withstanding scrutiny under Federal Rule of Civil Procedure 12(b)(6). See, e.g., Soltys v.
Costello,
520 F.3d 737, 743 (7th Cir. 2008); Vargas‐Harrison v. Racine Unified Sch. Dist.,
272 F.3d
964, 974‐75 (7th Cir. 2001). In his proposed complaint, he acknowledges that he was pulled
over for speeding in May 2007. There is no question that the stop itself was justified by
probable cause. See Arkansas v. Sullivan,
532 U.S. 769, 771 (2001); Whren v. United States, 517
No. 10‐2859 Page
3
U.S. 806, 809‐10 (1996); United States v. Willis,
61 F.3d 526, 530 (7th Cir. 1995). Trooper Tyler
Price, a defendant in this litigation, asked for Lee’s license and proof of insurance. Lee
handed over his Texas driver’s license, a rental‐car agreement as proof of insurance,
and—by accident, he says—his Texas license to carry a concealed handgun. When Price
returned to his squad car to check Lee’s criminal history, he was told that the rental
agreement had expired two days earlier. It’s a crime in Illinois to drive without insurance.
625 ILCS 5/3‐707(b). Price told Lee that the rental agreement had expired, but Lee insisted it
was good until the next day. Price went back to his car and tried calling the rental company
for verification, but its offices were closed. He then approached Lee and asked if he had any
weapons. Lee pointed to a green bag in the rear seat and said it contained two unloaded
guns and that he had bullets in the “far back.” Price directed Lee to exit the car and patted
him down. Meanwhile, Trooper Douglas Yorke, the other defendant in this litigation,
arrived with a third officer. They searched Lee’s car, looked inside the green bag, and found
two unloaded handguns and ammunition. Lee was arrested for unauthorized use of a
weapon and ticketed for speeding.
This account, as described by Lee, does not even hint at police misconduct. As soon
as Trooper Price made contact with Lee, he was handed an out‐of‐state license to carry a
concealed firearm. Price would have been remiss in not asking Lee if he had guns in the car,
see People v. Ross,
682 N.E.2d 87, 90 (Ill. App. Ct. 1997) (explaining that police officer who
was handed gun permit by motorist during routine traffic stop could reasonably assume
that motorist was armed and ask about guns), though the inquiry would have been
innocuous during a stop for speeding even without any suspicion, United States v. McBride,
635 F.3d 879, 882 (7th Cir. 2011); United States v. Childs,
277 F.3d 947, 954 (7th Cir. 2002) (en
banc). And in May 2007 when Lee—who was not in Texas anymore—pointed out that he
was transporting guns in a bag accessible in the passenger compartment, a reasonable
police officer enforcing Illinois law would have concluded there was probable cause to
arrest him for unlawful use of a weapon and to search the car for evidence. In Illinois it is,
and was then, a crime to have access in a car to a gun that is operable unless the weapon is
unloaded and in a case or other container. 720 ILCS 5/24‐1(a)(4). No exception is made in
§ 5/24‐1 for travelers who are licensed by their home state to have a firearm at hand. See 720
ILCS 5/24‐2; see also 18 U.S.C. § 926A (authorizing transportation of firearm across state lines
in vehicle only if gun is unloaded and inaccessible from passenger compartment). At the
time the defendants encountered Lee, the Illinois courts had been interpreting § 5/24‐1 to
mean that a firearm accessible to the occupants of a car had to be fully enclosed in a storage
box or other receptacle intended to house a gun, or else the possession was unlawful. See
People v. Williams,
858 N.E.2d 606, 610‐11 (Ill. App. Ct. 2006); People v. Smythe,
817 N.E.2d
1100, 1103‐04 (Ill. App. Ct. 2004); People v. Cameron,
784 N.E.2d 438, 441 (Ill. App. Ct. 2003).
No. 10‐2859 Page 4
It is true that long after Lee’s arrest the Supreme Court of Illinois held that a motorist
can avoid criminal liability by securing unloaded guns in “any portable or nonportable
receptacle,” whether or not designed to hold firearms. People v. Diggins,
919 N.E.2d 327, 333
(Ill. 2009); see People v. Holmes, No. 109130,
2011 WL 1314672, at *5 (Ill. Apr. 7, 2011). Lee
assumes that this contemporary understanding of the statute vindicates his use of the green
bag to transport his guns, but whether or not he is correct, the state supreme court’s later
clarification of § 5/24‐1 does not upset the reasonableness of the defendants’ belief that
probable cause existed. Probable cause turns on what a reasonable officer would have
believed at the time, and a prudent officer need not anticipate subsequent legal
developments. See Michigan v. DeFillippo,
443 U.S. 31, 37‐38 (1979); United States v. Osborn,
120 F.3d 59, 63 (7th Cir. 1997). For Lee, this means that amending his complaint would have
been futile because the facts he alleges, even if they do not point conclusively to the
presence of probable cause, at the very least establish that the defendants would have
qualified immunity in this § 1983 suit. See Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982); Burks
v. Raemisch,
555 F.3d 592, 595‐96 (7th Cir. 2009); Flenner v. Sheahan,
107 F.3d 459, 461‐62 (7th
Cir. 1997).
As to the appeal actually before us, we cannot avoid the issue whether the district
court abused its discretion in granting Lee more time to appeal. See Bowles v. Russell,
551
U.S. 205, 212‐14 (2007); Dexia Credit Local v. Rogan,
602 F.3d 879, 883 (7th Cir. 2010); Garwood
Packaging, Inc. v. Allen & Co., Inc.,
378 F.3d 698, 700 (7th Cir. 2004). A district judge may
extend the deadline for filing a notice of appeal upon finding excusable neglect or good
cause. FED. R. APP. P. 4(a)(5)(A)(ii); Marquez v. Mineta,
424 F.3d 539, 541 (7th Cir. 2005). Here
the court reasoned that Lee had good cause for missing the deadline because his
disagreement with former counsel had thwarted a timely motion for reconsideration under
Federal Rule of Civil Procedure 59(e), which in turn would have tolled the time for
appealing the underlying judgment. FED. R. APP. P. 4(a)(4)(A)(iv); York Grp., Inc. v. Wuxi
Taihu Tractor Co., Ltd.,
632 F.3d 399, 401 (7th Cir. 2011). But we cannot see how Lee’s debate
with counsel about postjudgment strategy can be viewed as cause, let alone good cause, for
ignoring the appeal deadline. By May 7, 2010, which was the deadline for filing a timely
appeal, Lee had ended his discussions with counsel and taken matters into his own hands.
He could have filed a notice of appeal but instead filed a motion under Rule 60(b). As he
would later concede in his motion for an extension of time, Lee’s choice of the Rule 60(b)
motion over a notice of appeal was strategic, so he was able to distinguish between his
options. He might well have believed that the postjudgment motion would toll the time for
appealing the underlying dismissal, but a Rule 60(b) motion filed more than 28 days after
entry of the judgment does not affect the deadline for filing an appeal, FED. R. APP. P.
4(a)(4)(A)(vi), and a misunderstanding about the effect of a postjudgment motion is not
good cause for missing the deadline to appeal the underlying judgment, see Nicholson v. City
of Warren,
467 F.3d 525, 526 (6th Cir. 2006); Amatangelo v. Borough of Donora,
212 F.3d 776,
No. 10‐2859 Page 5
779 (3d Cir. 2000). Nor can Lee ask us to construe his Rule 60(b) motion as a notice of
appeal. Even reading the motion liberally, nothing in it suggests that an appeal is what Lee
wanted. See Smith v. Barry,
502 U.S. 244, 248 (1992); Mosley v. Cozby,
813 F.2d 659, 660 (5th
Cir. 1987).
The district court also said that Lee deserved more time because, according to the
court, the failure of appointed counsel to file a notice of appeal constituted excusable
neglect. The court explained that “professional considerations” had prevented counsel from
filing a notice of appeal. But a lawyer’s deliberate and purposeful decision not to pursue an
appeal is not neglect at all. Gann v. Smith,
443 F.2d 352, 353 (5th Cir. 1971). Indeed, the
Supreme Court has recognized that neglect in the Rule 60(b) context carries with it the idea
of negligence, not intentional action or inaction. Pioneer Inv. Servs. Co. v. Brunswick Assocs.
Ltd. P’ship,
507 U.S. 380, 393‐94 (1993); Ackermann v. United States,
340 U.S. 193, 198 (1950)
(stating that “free, calculated, deliberate choices” do not justify relief under Rule 60(b)); see
Eskridge v. Cook County,
577 F.3d 806, 810 (7th Cir. 2009) (explaining that deliberate choice to
litigate in state rather than federal court was not “neglect” under Rule 60(b)).
Ultimately whether the court abused its discretion doesn’t matter. In his brief, Lee
raises no argument challenging the April 7 dismissal of his complaint, so he has waived the
only possible issue we have jurisdiction to review. See FED. R. APP. P. 28(a)(9)(A); Wallace v.
McGlothan,
606 F.3d 410, 421 n.6 (7th Cir. 2010). Although we give Lee some lattitude
because he is proceeding pro se, he still must comply with procedural rules. See McNeil v.
United States,
508 U.S. 106, 113 (1993). Failure to satisfy Rule 28 warrants dismissal of the
appeal. See Anderson v. Hardman,
241 F.3d 544, 545‐46 (7th Cir. 2001).
DISMISSED.
