Taylor v. Hughes

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ROBERT A. TAYLOR,

Plaintiff,

No. 13 CV 4597

v.

Judge Manish S. Shah

JOSHUA WEITZMAN,

Defendant.

MEMORANDUM OPINION AND ORDER

After Robert Taylor was acquitted, the investigative alert to arrest him was

not canceled. He was arrested a second time based on the stale alert. Taylor sued the

police officers involved in the investigation that led to his arrests, and among his

claims, he alleged a Fourth Amendment violation for the post-acquittal arrest.

Detective Joshua Weitzman, who issued the alert but did not cancel it, now moves for

summary judgment based on qualified immunity. The motion is granted.

I. Legal Standard

A party moving for summary judgment must show there is no genuine dispute

as to any material fact and that he is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(a). All facts and reasonable inferences are drawn in the nonmovant’s favor.

Hackett v. City of South Bend, 956 F.3d 504, 507 (7th Cir. 2020). The movant must

show that a reasonable jury could not return a verdict for the nonmoving party,

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), or that the nonmovant has

failed to establish an essential element of his claim and could not carry his burden of

proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

II. Facts

In June 2011, Chicago Police Officer Ricky Hughes obtained a search warrant

based on a witness’s description of Robert Taylor’s unlawful possession of a gun at an

apartment. [231] at 2–3.1 The search that followed turned up a semi-automatic gun.

Id. at 7. Taylor was not home during the search. [200] ¶ 51; [204] ¶¶ 74–75. According

to Detective Joshua Weitzman, he entered an investigative alert into the Chicago

police database at Officer Hughes’s request, signaling probable cause to arrest Taylor.

[200] ¶ 56; [204] ¶¶ 86–87; [300] ¶ 35. According to the Chicago Police Department’s

investigative alert policy, an alert could only be entered by a Bureau of Investigative

Services (BIS) member that was responsible “for follow-up investigation.” Id. ¶ 14.

BIS detectives, like Weitzman, were required to notify supervisors when alerts

needed to be updated or canceled. [301] ¶ 15; [183-20] at 35. BIS sergeants and above

were responsible for auditing investigative alert files every 28 days to ensure stale

alerts were removed from the system. [300] ¶ 20; [301] ¶ 13.

A few days after the search, Taylor went to the police station and was arrested

based on the investigative alert. [204] ¶ 90. In November 2011, the arrest was

quashed because of an error in the search warrant, and Taylor was found not guilty.

Id. ¶ 95. The next month, Taylor was arrested again after a traffic stop, based on the

1 Bracketed numbers refer to entries on the district court docket. The facts are taken from

the 56.1 statements offered in support of earlier summary-judgment motion practice and the

opinions resolving those motions. [200]; [204]; [231]; [300]; [301]; [316].

same investigative alert. Id. ¶ 96. He remained in custody for over an hour, until the

arresting officers realized Taylor had already been arrested and processed for that

alert and let him go. [200] ¶ 61. At some point during the mix-up, Weitzman was

contacted. [204] ¶ 97. There is a material dispute of fact as to Weitzman’s

responsibility for canceling the investigative alert. [300] ¶ 40; [231] at 23–24. Another

detective eventually canceled it in January 2012. [300] ¶ 47.

Taylor sued the City of Chicago and the individual police officers involved in

the search of his apartment, his arrest on gun charges, and his later arrest after his

acquittal. [94]. Taylor and the individual defendants—officers Ricky Hughes, Joshua

Weitzman, Kevin Johnson, Russell White, Kenneth Yakes, Shawn Pickett, Richard

Peck, Thomas Lieber, Scott McWilliams, and Yolanda Collier—moved for summary

judgment on Taylor’s § 1983 and malicious prosecution claims. [185]; [190]. The

officers briefed a qualified immunity defense for Taylor’s first arrest. [186] at 22.

Taylor responded that the individual defendants waived any qualified immunity

defense with respect to Taylor’s second arrest. [199] at 9, 14. The officers replied that

their qualified immunity analysis for the first arrest extended to Taylor’s second

arrest. [215] at 12, n.7. The officers also argued that issuing an investigative alert did

not amount to a constitutional violation, and therefore Officer Hughes and Detective

Weitzman were protected by qualified immunity. Id. at 14. Summary judgment was

granted in favor of each defendant on all counts except Weitzman, because Taylor

suffered a constitutional injury when he was arrested a second time without probable

cause, and there was a material dispute of fact as to Weitzman’s responsibility for

canceling the alert. [231] at 23–24, 27. In resolving the first motion for summary

judgment, I did not address Weitzman’s qualified immunity defense to the second

arrest. [231].

Taylor and the City of Chicago then moved for summary judgment on Taylor’s

municipal claim that the City’s investigative alert policy was unconstitutional. [287];

[290]. The City’s motion for summary judgment was granted because Taylor’s

evidence amounted to a one-time administrative failure. [316]. In the second round

of summary judgment motions, Weitzman, the only remaining individual defendant

in the case, also moved for summary judgment based on qualified immunity. [279]. I

denied his request but noted that there could be good cause to allow such a motion

after the Monell claims had been addressed. [281]. After the ruling on municipal

liability, Weitzman re-raised the issue of qualified immunity, and I ordered briefing.

[318].

III. Analysis

A. Waiver

“[W]aiver is the intentional relinquishment or abandonment of a known right.”

Smith v. GC Services Limited Partnership, 907 F.3d 495, 499 (2018) (citations

omitted). Arguments that are skeletal or raised in reply briefs for the first time may

be waived. Hernandez v. Cook County Sheriff's Office, 634 F.3d 906, 913 (7th Cir.

2011). “The underlying concern is to ensure that the opposing party is not prejudiced

by being denied sufficient notice to respond to an argument.” Id. Weitzman, along

with the individual defendants now dismissed from this case, asserted a qualified

immunity defense in their first summary judgment brief. [186] at 22. In their reply,

the defendants explained that the defense applied to Taylor’s second arrest, which

was based on the same investigative alert as the first arrest, and that issuing an

investigative alert did not amount to a constitutional violation. [215] at 12, n.7, 14.

While the immunity arguments with respect to Taylor’s second arrest were

underdeveloped, the defendants’ “opening brief argument supplied adequate notice”

to Taylor that they “were raising qualified immunity from the beginning of the case.”

Hernandez, 634 F.3d at 913–14. Taylor received more notice than the plaintiffs in

Maul v. Constan, 928 F.2d 784, 785, where qualified immunity was not argued during

pretrial or trial, and Aponte v. City of Chicago, 2010 WL 2774095, at *4, n.5 (N.D. Ill.

2010), where qualified immunity was only raised in defendants’ answer to the

complaint. Here, the individual police officers raised and briefed a qualified immunity

argument. Taylor was not misled about their intent to use this defense. The issue was

not waived.

Furthermore, “the issue of qualified immunity is a legal question for the trial

court, not the jury,” Maltby v. Winston, 36 F.3d 548, 554 (7th Cir. 1994) (citation

omitted), and “should be resolved at the earliest possible stage in litigation.” Id. at

554, n.6 (citation omitted). In the first memorandum opinion and order, [231], I did

not address the issue. Taylor suffers no prejudice from addressing it now. No trial has

been scheduled (and given the current public health emergency, a trial is not likely

to be feasible any time soon) and the motion is based on facts that were developed in

earlier rounds of litigation. Because a trial date is uncertain and qualified immunity

should be resolved as early as possible, there is good cause to consider the motion

now, before the parties are put to the expense of trial preparation.

B. Qualified Immunity

Qualified immunity protects government officials from civil liability under

§ 1983 if “their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). Once a qualified immunity defense is raised, the burden shifts

to the plaintiff to show 1) a violation of a constitutional right and 2) that the

constitutional right was clearly established at the time of the alleged violation. Leiser

v. Kloth, 933 F.3d 696, 701 (7th Cir. 2019).2 There are two ways to prove the second

part. First, a plaintiff can identify a reasonably analogous case that articulates the

right at issue and concerns a similar set of facts. Id. (citation omitted). The case need

not be identical but must be “some settled authority” that would put a reasonable

officer on notice that his actions violated the Constitution. Id. at 702 (citing Mullenix

v. Luna, 136 S. Ct. 305, 308 (2015)). Alternatively, a plaintiff can demonstrate that

the violation was so obvious that any reasonable person would have recognized it

violated the law. Id. at 701 (citation omitted). Under either approach, “existing

precedent must have placed the statutory or constitutional question beyond debate.”

Id. at 702 (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)) (cleaned up).

Finally, the right must be viewed “in light of the specific context of the case, not as a

2 These two elements can be addressed in any order. Leiser v. Kloth, 933 F.3d 696, 701 (7th

Cir. 2019).

broad general proposition,” which requires examining “whether the violative nature

of particular conduct is clearly established.” Mullenix, 136 S. Ct. at 308 (quoting

Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)).

Taylor argues he had a constitutional right to be free from arrest without

probable cause. See Burritt v. Ditlefsen, 807 F.3d 239, 250 (7th Cir. 2015). But this

ignores Weitzman’s specific conduct and defines the right too broadly. See Ashcroft,

563 U.S. at 742 (“The general proposition, for example, that an unreasonable search

or seizure violates the Fourth Amendment is of little help in determining whether

the violative nature of particular conduct is clearly established.”). Weitzman’s

characterization of the issue—whether he was on notice of potential civil liability—is

imprecise too. The qualified immunity test asks whether the official’s conduct was

clearly unconstitutional. The particular conduct here is Weitzman’s failure to cancel

the investigative alert and the issue is whether that conduct violated a clearly

established constitutional right not be seized on a stale alert.

There is no reasonably analogous case that would have put Weitzman on notice

that failing to cancel an investigative alert violated the Constitution. The concern

about law enforcement failing to update information was raised as early as 1985,

without clearly settling it as a constitutional issue. See United States v. Longmire,

761 F.2d 411, 420 (7th Cir. 1985) (“Unreasonable delays by issuing officers in

updating the information contained in police bulletins or flyers will not be sanctioned

by this court. Such delays may render illegal stops and searches pursuant to those

bulletins.”); see also Banks v. Fuentes, 545 Fed.App’x 518, 520–21 (7th Cir. 2013)

(comparing investigative alerts to police bulletins). Yet, even if Weitzman had heeded

the warning issued in Longmire, he would still not be on notice that his conduct

violated the Constitution. While Longmire states that unreasonable delays will not

be sanctioned, the case does not rule on the constitutionality of such conduct. See 761

F.2d at 420. At most, it suggests that delays “may” result in illegal arrests, id., not

that acts of unreasonable delays are unconstitutional. It also puts the onus on

arresting officers to check the staleness of bulletins (or here, investigative alerts), not

just the issuing officer. Id. An officer reading Longmire would see a warning about

illegal arrests resulting from delays in updating bulletins, but would not understand

that the failure to cancel an alert violated the constitution. Such an officer could

reasonably believe that an audit system and the arresting officers’ obligation to check

for staleness would eliminate any constitutional obligation on the initiating officer’s

part to cancel the alert.

Nor was Weitzman’s conduct so outrageous that any reasonable person would

have recognized it as unlawful. See Leiser, 933 F.3d at 704. For example, similar

conduct did not trigger the exclusionary rule, where intentional conduct that is

patently unconstitutional warrants the suppression of evidence. See Herring v.

United States, 555 U.S. 135, 143 (2009). Like applying the exclusionary rule,

withholding qualified immunity is intended to deter misconduct and hold officers

accountable for clearly unconstitutional conduct. See id. at 140–41; see also Harlow,

457 U.S. at 819. As of 2009, Weitzman was on notice that negligent mistakes made

by law enforcement do not trigger the exclusionary rule. Herring, 555 U.S. at 144. In

other words, a negligent mistake is not the type of flagrant or deliberative police

misconduct that requires judicial deterrence. Id. In Herring, the mistake made was

similar to the one Weitzman made—an outdated warrant in a computer database led

to an unlawful arrest. Id. at 138.3 The negligence underlying the mistake

distinguished it from flagrantly unconstitutional conduct. Id. at 140. “If the police

have been shown to be reckless in maintaining a warrant system, or to have

knowingly made false entries, exclusion would be justified.” Id. at 146.4 In Taylor’s

case, Weitzman issued the investigative alert and failed to update it. [200] ¶ 56; [204]

¶¶ 86–87; [300] ¶¶ 35, 47. Assuming he knew about the investigative alert policy,

Weitzman knew he had follow-up responsibilities, but also that the alert would be

canceled within 28 days under the audit policy. [300] ¶¶ 14, 20; [301] ¶ 13.5

Notwithstanding the material dispute about Weitzman’s responsibility for cancelling

the alert, at most, this was an instance of “isolated negligence” like in Herring, not a

reckless or deliberate inaction. 555 U.S. at 137. Thus, Weitzman’s mistake was not

so egregious to defeat a qualified immunity defense. In 2011 (and even now) there

was no existing precedent of a clearly established constitutional right to be free from

arrest based on stale information that would have put Weitzman on notice that his

3 The Court accepted the parties’ assumption that there had been a Fourth Amendment

violation. Herring v. U.S., 555 U.S. 135, 139 (2009).

4 The dissent in Herring warned that in the modern world of policing, where the use and

influence of electronic databases has grown dramatically, “[i]naccuracies in expansive,

interconnected collections of electronic information raise grave concerns for individual

liberty.” Herring, 555 U.S. at 155 (Ginsburg J., dissenting).

5 Even if Weitzman violated CPD’s investigative alert policy, that by itself does not establish

a constitutional violation.

failure to cancel an alert was unconstitutional.® Taylor fails to carry his burden to

defeat Weitzman’s qualified immunity defense.’

IV. Conclusion

Weitzman’s motion for summary judgment, [319], is granted. Taylor’s § 1983

and state law claims against all individual defendants have been denied, [231], as

well as Taylor's Monell claim against the City of Chicago. [316]. The Clerk shall enter

final judgment in favor of all defendants on all claims. Terminate civil case.

ENTER:

Manish 8S. Shah

United States District Judge

Date: June 30, 2020

5 Taylor argues that because there is a dispute of material fact as to Weitzman’s responsibility

for cancelling the alert, summary judgment is inappropriate, and Weitzman’s motion

amounts to a motion to reconsider my ruling. A genuine dispute of fact about whether a

clearly established constitutional right was violated precludes summary judgment on the

basis of qualified immunity. Isby v. Brown, 856 F.3d 508, 530 (7th Cir. 2017). But here, the

issue is whether there even was a clearly established constitutional right—which is a

question of law independent of the factual dispute.

7 Because qualified immunity shields Weitzman, I do not reconsider the question of

Weitzman’s potential liability under the threshold elements for false arrest—an issue on

which I denied summary judgment. [231] at 23-24, 27.

10