David Green v. Jonathan Newport

On November 26, 2014, around

8:30 p.m., Officer Jonathon Newport of the Milwaukee Police

* Of the United States District Court for the Northern District of Illinois,

sitting by designation.

2 No. 16-1536

Department and his partner, Officer Busshardt, responded to

a suspicious person complaint made by an employee of the

O’Reilly Auto Parts store in Milwaukee, Wisconsin.1 A dispatcher

told Officer Newport that a Mercury Grand Marquis

drove around the store’s parking lot about five times. Officer

Newport believed this behavior was consistent with “casing”

a business in preparation for a robbery. He knew that this store

had been robbed within the last two months and that firearms

were brandished in the course of the robbery. Officer Newport

was also aware that the store closed at 9 p.m. and would soon

be empty.

Officer Newport drove to the parking lot, and observed a

Mercury Marquis in a stall in front of the store about thirty feet

from its entrance. An overhead parking lot lamp was next to

and south of the Mercury Marquis. A Chevrolet Malibu, driven

by Davin Green, was parked next to the Marquis. According to

Officer Newport, Joe Lindsey, the driver of the Marquis, stood

outside the driver’s door of his vehicle, next to the front

passenger door of the Malibu. Also according to Officer

Newport, Lindsey leaned into the front passenger window of

the Malibu for a few moments and stood back up. Officer

Newport testified that he suspected that Lindsey had concealed

a weapon when leaning into the Malibu and decided to

investigate further. Green disputes that Lindsey stood outside

the driver’s door of his vehicle, next to the passenger door of

1 We accept the factual background set forth by the district court, which

was based on the undisputed portions of the parties’ proposed findings of

fact, stipulated facts developed at oral argument, and the transcript at the

suppression hearing.

No. 16-1536 3

the Malibu, and also that Lindsey ever leaned into the front

passenger window of the Malibu.

Officer Newport activated his squad car’s emergency lights

and stopped behind the Marquis. The officers told Lindsey and

Green to put up their hands. Officer Newport approached

Green and asked if Green had any weapons; Green replied

“no.” Officer Newport then directed Green to exit the vehicle.

Officer Newport’s account of what happened next is

disputed by Green: Officer Newport said that when Green

exited his vehicle, his right arm was kept tight to his body

while his left swung freely and that after asking Green to raise

his arms out “like an airplane,” Green raised only his left arm.

Officer Newport grabbed Green’s right wrist to force his right

arm up, but Green resisted. Officer Newport grabbed Green’s

right wrist to position his arm and proceeded to pat him down

and discovered a handgun in Green’s waistband.

Green sued Officer Newport and the City of Milwaukee

claiming under 42 U.S.C. §§ 1983 and 1988 they violated his

right to be free from unreasonable searches and seizures; that

Officer Newport conducted the stop and frisk without reasonable

suspicion. The parties filed cross-motions for summary

judgment. The court ruled that the investigatory stop violated

a clearly established constitutional right, and denied qualified

immunity. Officer Newport timely appealed.

4 No. 16-1536

I. DISCUSSION

A. Jurisdiction

We have interlocutory jurisdiction over a district court’s

denial of summary judgment on qualified immunity grounds.

Gibbs, 755 F.3d at 535. We consider such appeals to the extent

that the defendant public official presents an “abstract issue of

law[,]” such as “whether the right at issue is clearly established

or whether the district court correctly decided a question of

law[.]” Huff v. Reichert, 744 F.3d 999, 1004 (7th Cir. 2014)

(citations omitted). We review a district court’s qualified

immunity determination de novo. D.Z. v. Buell, 796 F.3d 749, 753

(7th Cir. 2015) (citation omitted).

B. Qualified Immunity Framework

“The doctrine of qualified immunity shields officials from

civil liability so long as their conduct ‘does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.’” Mullenix v. Luna, 136

S. Ct. 305, 308 (2015) (quoting Pearson v. Callahan, 555 U.S. 223,

231 (2009)). “Qualified immunity balances two important

interests—the need to hold public officials accountable when

they exercise power irresponsibly and the need to shield

officers from harassment, distraction, and liability when they

perform their duties reasonably.” Pearson, 555 U.S. at 231. “The

defense provides ‘ample room for mistaken judgments’ and

protects all but the ‘plainly incompetent and those who

knowingly violate the law.’” Wheeler v. Lawson, 539 F.3d 629,

639 (7th Cir. 2008) (quoting Hunter v. Bryant, 502 U.S. 224, 227

(1991)).

No. 16-1536 5

To overcome a defendant’s invocation of qualified immunity,

a plaintiff must show: “(1) that the official violated a

statutory or constitutional right, and (2) that the right was

‘clearly established’ at the time of the challenged conduct.”

Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (citation omitted). “If

either inquiry is answered in the negative, the defendant official

is entitled to summary judgment.” Gibbs, 755 F.3d at 537.

Courts are free “to exercise their sound discretion in deciding

which of the two prongs of the qualified immunity analysis

should be addressed first in light of the circumstances in the

particular case at hand.” Pearson, 555 U.S. at 236. Because the

answer to this inquiry is dispositive, we address only whether

the right at issue was clearly established.

The plaintiff bears the burden of demonstrating that a right

was clearly established at the time the alleged violation

occurred. Kiddy–Brown v. Blagojevich, 408 F.3d 346, 359 (7th Cir.

2005). For a right to be clearly established, “existing precedent

must have placed the statutory or constitutional question

beyond debate.” Mullenix, 136 S. Ct. at 308 (citation omitted).

The right must be “sufficiently clear that every reasonable

official would understand that what he is doing violates that

right.” Id. (citation and quotation marks omitted).

The Supreme Court has instructed that “clearly established

law should not be defined at a high level of generality.” White

v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam) (citation and

quotation marks omitted). While a case directly on point is not

required, “the clearly established law must be ‘particularized’

to the facts of the case.” Id. at 551 (citation omitted). The Court

has found that “[s]uch specificity is especially important in the

Fourth Amendment context, where … ‘it is sometimes difficult

6 No. 16-1536

for an officer to determine how the relevant legal doctrine …

will apply to the factual situation the officer confronts.’”

Mullenix, 136 S. Ct. at 308 (citation and alterations omitted).

In this case, the district court concluded that Officer

Newport conducted an investigatory stop based solely on a

“suspicious person” report, and in doing so violated Green’s

clearly established Fourth Amendment right and that Officer

Newport was therefore not entitled to qualified immunity.

Officer Newport argues that the district court erred

by defining Green’s Fourth Amendment right without the

requisite specificity. He further argues that the case law relied

upon by the district court is factually dissimilar to the facts in

this case, and the court failed to demonstrate that Green’s

Fourth Amendment rights were clearly established. We agree.

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 may be afoot. 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)

(citation omitted).

While the cases relied upon by the district court establish

the contours of reasonable suspicion, they do not place

the constitutionality of Officer Newport’s conduct “beyond

debate.” In Gentry, a police officer stopped the plaintiff based

on nothing more than a dispatch report that a suspicious

person was pushing a wheelbarrow, which is not in and of

No. 16-1536 7

itself a crime. 597 F.3d at 843. In Packer, police officers stopped

a vehicle’s occupants based on a citizen’s call reporting a

suspicious vehicle parked along the street, at 1:00 o'clock in

the morning. 15 F.3d at 658. In both cases, the dispatch reports

did not provide any specific facts concerning a crime, just a

general reference to a suspicious person or vehicle. Id. at 659;

Gentry, 597 F.3d at 846. Therefore, police “lacked the minimal

detail of information that would point to any arguably particularized

suspicion of criminal conduct.” Packer, 15 F.3d at 659.

In both Gentry and Packer, we found that such a generalized

“suspicious person” report, without more, was insufficient to

justify a Terry stop. Id. at 658–59; 597 F.3d at 845–46. The instant

case is easily distinguishable.

Determining whether an officer had reasonable suspicion

to support a Terry stop requires courts to examine “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.” D.Z., 796 F.3d at

754 (citation omitted). At the time Officer Newport conducted

the stop, he had information that a Marquis circled the auto

parts store parking lot multiple times near the close of business.

He believed that this conduct was consistent with casing

a business in order to commit a robbery. Officer Newport was

also aware that the store had been robbed within the last two

months at closing time. The Supreme Court has held that

“officers are not required to ignore the relevant characteristics

of a location in determining whether the circumstances are

sufficiently suspicious to warrant further investigation.” Illinois

v. Wardlow, 528 U.S. 119, 124 (2000); see also United States v.

Oglesby, 597 F.3d 891, 894 (7th Cir. 2010) (collecting cases).

8 No. 16-1536

While the prior robbery does not make this area “high crime”

per se, see Wardlow, 528 U.S. at 124, we believe it is a relevant

contextual consideration.

We recognize that there are factual disputes between Green

and Officer Newport, and that the district court refused to

credit certain factual assertions by Officer Newport. But even

construing the facts in Green’s favor, we cannot find that the

police lacked “minimal information” to warrant suspicion of

criminal conduct. The facts of Gentry and Packer are too

dissimilar to control this case, and they do not place the

constitutionality of Officer Newport’s stop beyond debate.

Green counters that, while Gentry and Packer may not have

expressly proscribed Officer Newport’s conduct, these cases

provided him “fair warning” that his conduct was unlawful.

See Hope v. Pelzer, 536 U.S. 730, 741 (2002) (finding that officers

violate clearly established law in novel factual circumstances

when precedent gives them “fair warning” that their conduct

is unconstitutional). It is not clear on what legal basis Green

asserts this argument, but as we have already concluded,

Gentry and Packer are too factually dissimilar to control this

case. The inquiry into whether a right is clearly established

“must be undertaken in light of the specific context of the case,

not as a broad general proposition.” Mullenix, 136 S. Ct. at 308

(citation omitted). Green ignores the context of the situation

which Officer Newport confronted: the auto store’s recent

robbery; the “casing” behavior reportedly carried out by the

driver of the Marquis; and the proximity to the store’s closing

hour. These facts make this case wholly distinguishable from

Gentry and Packer, in which officers lacked any information to

warrant suspicion of criminal conduct, and consequently these

No. 16-1536 9

cases cannot provide Officer Newport “fair warning” that his

conduct was unlawful. Accordingly, the district court erred in

its determination that Officer Newport’s Terry stop violated

clearly established law, and we find that Officer Newport is

entitled to qualified immunity.

We briefly address whether Officer Newport is entitled to

qualified immunity on Green’s challenge to the lawfulness of

Officer Newport’s frisk. Our cases recognize that a reviewing

court must analyze a frisk separately from an initial stop.

United States v. Williams, 731 F.3d 678, 683 (7th Cir. 2013). An

officer performing a Terry stop may not automatically frisk the

individual subject to the stop; the officer must have some

articulable suspicion that the subject is “armed and dangerous.”

Arizona v. Johnson, 555 U.S. 323, 327 (2009).

Green has the burden of demonstrating that the frisk

violated a clearly established law. See Kiddy–Brown, 408 F.3d

at 359. Green relies on the same cases that he relied upon for

his Terry stop analysis. As we stated above, much of this

precedent is factually inapposite or simply irrelevant; Gentry

is the only relevant case. However, in Gentry, we found that the

police officers lacked any basis for their belief that the plaintiff

was concealing a weapon or posed a danger to others, and

therefore found the frisk unconstitutional. 597 F.3d at 847–48.

Importantly, Officer Newport knew that the prior attack on

the store involved a weapon so he had reason to suspect that

when Lindsey leaned into the Malibu he was concealing a

weapon in Green’s vehicle.

We note that, viewing the facts in the light most favorable

to Green, Officer Newport did not see Lindsey stand next to

10 No. 16-1536

the front passenger door of Green’s Malibu and did not see

Lindsey lean into the Malibu’s front passenger window.

However, as we have held, reasonable suspicion that someone

has committed or is about to commit a burglary or another

crime typically involving a weapon generally gives rise to a

reasonable suspicion that the person might be armed. See

United States v. Snow, 656 F.3d 498, 501–03 (7th Cir. 2011);

United States v. Barnett, 505 F.3d 637, 640–41 (7th Cir. 2007)

(collecting cases). This principle applies with equal force in this

case and provides Officer Newport with an independent

justification for conducting a protective frisk. Given these

considerations, Officer Newport had a plausible reason to

suspect that Green was armed and dangerous, in marked

contrast with the facts of Gentry. Green has failed to meet the

burden of establishing that the frisk violated clearly established

law, and we find that Officer Newport is entitled to qualified

immunity regarding the frisk.

We reverse the district court’s denial of Officer Newport’s

motion for summary judgment on qualified immunity

grounds, and direct the court to grant the motion.