Carmichael v. Village of Palatine, Ill.

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1010

A BRAHAM C ARMICHAEL and

K EITH S AWYER,

Plaintiffs-Appellants,

v.

V ILLAGE OF P ALATINE, ILLINOIS,

T IMOTHY S HARKEY and STEVE B USHORE,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:07-cv-05221—Virginia M. Kendall, Judge.

A RGUED F EBRUARY 10, 2010—D ECIDED M AY 21, 2010

Before R IPPLE, M ANION and W ILLIAMS, Circuit Judges.

R IPPLE, Circuit Judge. Abraham Carmichael and Keith

Sawyer brought this action alleging Fourth Amendment 1

1

The plaintiffs divided their complaint into eight counts,

the first three of which presented the federal claims. Count

(continued...)

2 No. 09-1010

violations under 42 U.S.C. § 1983 against Officers

Timothy Sharkey and Steve Bushore and against the

officers’ employer, the Village of Palatine (“Village”). They

also alleged supplemental state claims arising out of the

same incident.2 The defendants moved for summary

judgment on all claims against all parties, which the

district court granted in its entirety. Mr. Carmichael and

Mr. Sawyer now appeal. We conclude that the district court

erred with respect to its treatment of two of the plaintiffs’

claims, namely those related to the authority to make the

initial stop and to the manner in which Mr. Sawyer was

searched. We therefore reverse and remand in part the

judgment of the district court.

1

(...continued)

I alleged an unreasonable search and seizure, Count II alleged

unlawful arrest and Count III alleged that the officers on

the scene had used excessive force, all in violation of the Fourth

Amendment. R.38.

2

The plaintiffs’ state law claims were as follows: Count

IV alleged false imprisonment of Mr. Carmichael without

probable cause; Count V alleged malicious prosecution of

the case against Mr. Carmichael by Officer Sharkey; Count VI

alleged intentional infliction of emotional distress on

Mr. Carmichael by Officer Sharkey. Counts VII and VIII did

not include additional substantive legal contentions, but alleged

that the Village of Palatine was liable for Officer Sharkey’s

actions under a theory of respondeat superior and a state statute

providing for the indemnification of public employees. Id.

No. 09-1010 3

I

BACKGROUND

A.

On September 15, 2006, Mr. Sawyer and Mr. Carmichael

met up with three women on the south side of Chicago.

Mr. Carmichael and one of the women, Kita,3 smoked

marijuana together, and then all five individuals drove, in

Kita’s car, to a motel where they proceeded to drink and

use other drugs. After some time, Mr. Carmichael

borrowed Kita’s car and drove to a nearby store.

Mr. Sawyer rode along as a passenger; the women stayed

behind.

As the men returned from the store to the motel

parking lot and were beginning to exit the car, they heard

someone order them to “freeze.” R.78, Ex. 2 at 50.

Mr. Carmichael turned and observed Officer Timothy

Sharkey some ten-to-twelve feet away with his service

revolver pointed at them. Following Officer Sharkey’s

commands, Mr. Carmichael stepped back into the car

and placed his hands on the steering wheel. Officer

Sharkey then approached and asked for Mr. Carmichael’s

license; Mr. Carmichael admitted that he did not have

it. Instead, he produced a state ID. Officer Sharkey took the

ID and went to his squad car.

When Officer Sharkey returned to the car containing

the plaintiffs, he informed Mr. Carmichael that his license

had been revoked. He asked for the vehicle information,

3

The record does not disclose Kita’s full name, nor does it

disclose the names of the other women involved.

4 No. 09-1010

including insurance and registration; Mr. Carmichael could

not produce them. Mr. Carmichael informed Officer

Sharkey that the car belonged to someone else.

Officer Sharkey ordered Mr. Carmichael out of the

car and conducted a search of his person without consent.

The search turned up a bag of marijuana in

Mr. Carmichael’s jeans pocket. Mr. Carmichael then was

handcuffed. By this time, Officer Steve Bushore had

arrived on the scene.

Officer Sharkey next ordered Mr. Sawyer out of the

car. Officer Sharkey conducted a pat-down search of

Mr. Sawyer and handcuffed him as well. At this time,

Mr. Sawyer asked Officer Sharkey why the men had

been stopped. Officer Sharkey replied that he had pulled

them over because the car did not have a front license

plate and had tinted front windows. Officer Sharkey

recanted these statements later and has maintained

for some time—including in his official report from the

night in question and in the proceedings in the district

court in this case—that he stopped the car only because

it did not have operational tail or brake lights. Kita’s car

did not, in fact, have a front license plate, because it

had only a temporary rear plate. With regard to the

tinted windows, the plaintiffs claim that the facts are in

dispute. However, we agree with the district court that

Mr. Carmichael’s own deposition testimony and the

photographs of the car establish that, at minimum, the

driver’s side front window was tinted. The plaintiffs

presented no contrary evidence on this issue. There is

a dispute about whether the window was down and

therefore, whether the tint was visible at the time of the

No. 09-1010 5

initial stop. Notably, Officer Sharkey later admitted that,

at the time of the stop, he was unaware of the car’s tinted

windows and also admitted “that tinted windows had

nothing to do with his arrest of Carmichael.” R.87 at 2

(Defendants’ Response to Plaintiffs’ 56.1 Statement).

Officer Sharkey further admitted that he did “not know

whether or not the vehicle that Carmichael was driving

had a front license plate.” Id.

Leaving the plaintiffs under the supervision of Officer

Bushore, Officer Sharkey next conducted a full search

of the interior of Kita’s car. He uncovered a bag containing

a significant quantity of crack cocaine. Officer Sharkey

then returned to Mr. Sawyer and conducted a more

complete search, the details of which are not in

significant dispute. Officer Sharkey pulled Mr. Sawyer’s

pants partially down and pulled his underwear away

from his body. Officer Sharkey shone a flashlight into

Mr. Sawyer’s pants and, when the search was complete,

informed Mr. Sawyer that he was free to go.

Mr. Carmichael was placed under arrest and was

taken to the Palatine police station. There, he was subjected

to a full strip search. He received a citation for operating

a vehicle without a license and for having no functioning

taillights. He did not receive a citation for lack of a front

plate or for operating a vehicle with tinted windows. He

also was charged with a series of offenses related to the

drugs recovered in the search of his person and of the

vehicle.

In Mr. Carmichael’s subsequent criminal proceedings,

the Illinois judge set his bond at $100,000. Because he

was unable to post bond, Mr. Carmichael remained in

6 No. 09-1010

custody for the four months that charges were pending

against him.

At a hearing on Mr. Carmichael’s motion to quash

the arrest and to suppress the evidence obtained in

the search, Officer Sharkey testified that the car had

been stopped because it did not have functioning tail or

brake lights, not because of the window tint or front

license plate issues, the grounds he had mentioned

in response to Mr. Sawyer’s inquiry. It was stipulated that

Kita’s car had been towed from the motel to a

body shop following the arrest and that the vehicle

had remained in that location. An investigator employed

by Mr. Carmichael’s attorney had gone to the shop

and had examined the vehicle; he testified that he had

found its taillights to be operational. Based on this

testimony, the trial judge in the criminal case concluded

that probable cause did not support the initial seizure and

granted Mr. Carmichael’s motion to suppress. Indeed,

the court stated that it “believe[d] that [Officer Sharkey]

out and out lied in this courtroom” when he represented

that he pulled the car over because of non-functioning

taillights. R.78, Ex. 8 at 16. The court suggested, on the

record, that the officer should be investigated and the

case referred to the “civil rights violation department.” Id.

On motion of the prosecutor, the charges against

Mr. Carmichael were dropped.

B.

Mr. Carmichael and Mr. Sawyer then brought

this civil rights action in the district court against Officers

No. 09-1010 7

Bushore and Sharkey and the Village. As we have noted,

their complaint raised a variety of claims under

§ 1983, including unreasonable search and seizure, false

arrest and excessive force, as well as a variety of

pendent state law claims. The officers and the Village

moved for summary judgment, contending principally

that the plaintiffs had admitted sufficient facts to

require a finding that probable cause supported the stop,

the searches and the subsequent arrest. Specifically, the

defendants noted that it is undisputed that, during the

stop and search, Officer Sharkey told Mr. Carmichael

and Mr. Sawyer that they had been stopped because of

tinted windows and the absence of a front plate; both

could have been violations of Illinois law sufficient

to provide probable cause. Therefore, the defendants

claimed, the search was objectively reasonable under the

plaintiffs’ version of the facts, and summary judgment was

appropriate.

The district court held that Mr. Carmichael and

Mr. Sawyer had waived many of their claims, including

those for excessive force, unlawful detention of Mr. Sawyer

and all of the state law claims. Turning to the Fourth

Amendment search and seizure claims, the district court

concluded that the fact of tinted windows and the lack

of a front plate provided adequate probable cause for the

initial stop, even though those violations were different

than the officer’s sworn statement providing his reasons

for the stop (non-operating taillights). The district court

specifically noted that

the undisputed facts show that at the time Sharkey

made the traffic stop, he knew that the car that

8 No. 09-1010

Carmichael had been driving had tinted windows and no

front license plate because he cited those reasons to

Carmichael and Sawyer when they asked why he

stopped their car and those statements are

supported by the photos of the car that are in

evidence.

R.94 at 12 (emphasis added). Because the probable

cause inquiry turns on the conclusions that a

reasonable officer could draw from “ ’the facts known

to the [officer], when viewed objectively,’ ” the district

court concluded that there had been no Fourth

Amendment violation at the time of the stop. Id. (quoting

Williams v. Rodriguez, 509 F.3d 392, 401 (7th Cir. 2007)

(modification in original)). Concluding that the objective

facts were sufficient to support the initial stop, the court

saw no constitutional violation in the stop or in the

subsequent search and arrest. The district court also

rejected Mr. Sawyer’s claim that he had been subjected

to an unreasonable search, concluding that a search of

all the individuals in the vehicle was constitutional after

the discovery of the drugs. The court did not examine,

in any significant detail, whether the search was

carried out in an unreasonable manner.

II

DISCUSSION

We review de novo a grant of summary judgment.

Reget v. City of LaCrosse, 595 F.3d 691, 695 (7th Cir.

2010). Summary judgment is appropriate when “the

No. 09-1010 9

pleadings, the discovery and disclosure materials on

file, and any affidavits show that there is no genuine

issue as to any material fact and that the movant is

entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(c)(2). We view the facts in the light most favorable

to the non-moving parties, here, Mr. Carmichael and

Mr. Sawyer, and we draw all reasonable inferences in their

favor. Reget, 595 F.3d at 695.

A.

The Officers and the Village submit that the

initial stop was supported by probable cause and

therefore was reasonable under the Fourth Amendment.

Specifically, they contend that Officer Sharkey had

probable cause to believe that Mr. Carmichael had violated

Illinois law in operating a vehicle with tinted front

windows and without a front license plate. See 625 ILCS

5/12-503(a-5), 5/3-413(a). They further contend that Officer

Sharkey’s statements to the contrary in the arrest report, at

the criminal trial and in his deposition that the reason for

the stop was, instead, inoperative tail or brake lights, are

irrelevant.

The Fourth Amendment to the Constitution protects

“[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures.” U.S. Const. Amend. IV. Over time,

the Supreme Court has developed a series of corollary

principles to give effect to this basic constitutional

mandate in the particular context of automobile searches.

The temporary detention of an individual during the

stop of an automobile by the police, even if only for

10 No. 09-1010

a short period of time and for a limited purpose,

constitutes the seizure of a person within the meaning of

this constitutional provision. See Delaware v. Prouse, 440

U.S. 648, 653 (1979). Consequently, an automobile stop

is subject to the “constitutional imperative that it

not be ‘unreasonable’ under the circumstances.” Whren

v. United States, 517 U.S. 806, 810 (1996). “As a general

matter, the decision to stop an automobile is reasonable

where the police have probable cause to believe that

a traffic violation has occurred.” Id.; see United States

v. Watson, 423 U.S. 411, 417-18 (1976); Brinegar v. United

States, 338 U.S. 160, 164 (1949).4 “Whether probable cause

4

Under certain circumstances, the stop of an automobile

without probable cause related to a vehicle violation or any

other crime is reasonable under the Fourth Amendment. The

Supreme Court has upheld the use of checkpoints in which brief

stops are made without any individualized suspicion. Michigan

Dep’t of State Police v. Sitz, 496 U.S. 444, 455 (1990) (temporary

sobriety checkpoints stopping all vehicles); United States v.

Martinez-Fuerte, 428 U.S. 543, 562 (1976) (fixed immigration

checkpoint in the interior of the United States). The Court also

has approved of minimally invasive stops conducted by roving

patrols near the border to question occupants about immigration

status on something less than probable cause. United States v.

Brignoni-Ponce, 422 U.S. 873, 884 (1975) (plurality opinion)

(requiring reasonable suspicion). But see City of Indianapolis v.

Edmonds, 531 U.S. 32, 41 (2000) (vehicle checkpoints “to detect

evidence of ordinary criminal wrongdoing,” such as narcotics,

without individualized suspicion violate the Fourth Amend-

ment); Almeida-Sanchez v. United States, 413 U.S. 266 (1973)

(probable cause necessary for search of any vehicles conducted

(continued...)

No. 09-1010 11

exists depends upon the reasonable conclusion to be

drawn from the facts known” to the officer at the time

he acts. Devenpeck v. Alford, 543 U.S. 146, 152 (2004). The

Supreme Court has made clear that the probable cause

inquiry is an objective one; the subjective motivations of

the officer do not invalidate a search otherwise supported

by probable cause. Whren, 517 U.S. at 812-13 (collecting

cases). Importantly, however, “probable cause depends

not on the facts as an omniscient observer would perceive

them but on the facts as they would have appeared to

a reasonable person in the position of the arresting

officer—seeing what he saw, hearing what he heard.”

Mahoney v. Kesery, 976 F.2d 1054, 1057 (7th Cir. 1992)

(emphasis in original); see also Devenpeck, 543 U.S. at

153 (“Our cases make clear that an arresting officer’s state

of mind (except for the facts that he knows) is irrelevant to

the existence of probable cause.” (emphasis added));

Williams v. Rodriguez, 509 F.3d 392, 398 (7th Cir. 2007)

(noting that probable cause exists at the moment when

“the facts and circumstances within [the officers’]

knowledge and of which they have reasonably trustworthy

information are sufficient to warrant a prudent person

in believing that the suspect had committed an offense”

(internal quotation marks omitted)).

These principles require, then, that we focus our

inquiry on the objective reasonableness of the officer’s

4

(...continued)

by roving immigration patrols several miles into the interior of

the United States).

12 No. 09-1010

conduct on “whether, at the moment the arrest was

made, the officers had probable cause to make it—whether

at that moment the facts and circumstances within

their knowledge and of which they had reasonably

trustworthy information were sufficient to warrant a

prudent man in believing that the petitioner had

committed or was committing an offense.” Beck v. Ohio,

379 U.S. 89, 91 (1964). The reasonableness of the seizure

turns on what the officer knew, not whether he knew the

truth or whether he should have known more. Reynolds

v. Jamison, 488 F.3d 756, 765 (7th Cir. 2007). We “only

care about what the officer knew at the time the decision

was made.” Id.

The district court concluded that Officer Sharkey

observed the possible vehicle violations regarding the

plates and the tinted windows when he made the stop

because he verbally cited those reasons in answer to an

inquiry from Mr. Sawyer during the stop. Notably,

however, by the time he uttered those reasons to

Mr. Sawyer, Officer Sharkey was well into his investigation

and knew a great deal more about the men, the

contraband and the car than he had known when he drew

his service revolver and shouted “freeze.” Indeed, at that

time, he already knew that the car contained drug

paraphernalia and that Mr. Carmichael had operated the

vehicle without a license. He knew that Mr. Carmichael

had marijuana on his person. None of these facts, however,

assists us in determining whether at the moment that

Officer Sharkey made the stop, he had sufficient facts to

conclude that probable cause existed to believe traffic

No. 09-1010 13

laws had been violated. See Reynolds, 488 F.3d at 765

(“The fact that an officer later discovers additional

evidence unknown to her at the time of the arrest . . .

is irrelevant—we only care about what the officer knew at

the time the decision was made.”).

Officer Sharkey has, from the moment he filed the

arrest report, maintained that his reason for stopping

the car was inoperative tail and brake lights. More

importantly, however, all of the defendants, including

Officer Sharkey, admitted, in their response to plaintiffs’

56.1 statement, that Officer “Sharkey did not observe

tinted windows on the vehicle Carmichael was driving

before he stopped the vehicle,” and that he “does not

know whether or not the vehicle that Carmichael was

driving had a front license plate.” R.87 at 2 (emphasis

added); see also R.78, Ex. 8 at 6 (noting, in response to

plaintiffs’ counsel’s question about whether Officer

Sharkey knew that the car had tinted windows, that he

“did not observe anything else [other than the brake lights]

on the vehicle that [he] knew to be a traffic violation at

the time.” (Sharkey dep. at 24) (emphasis added)). Officer

Sharkey’s statement to Mr. Sawyer about tinted windows

and a front license plate may be based on what he

observed after the stop, but, by his own admission, they are

not what he knew when he effected the stop. Accordingly,

we must conclude that the district court misapprehended

the record when it based its determination that Officer

Sharkey had probable cause to effect the arrest on the basis

of tinted windows and the absence of a front license plate.

Our earlier discussion should make clear—but we pause

to emphasize—that our focus on the facts Officer

14 No. 09-1010

Sharkey knew at the time that he decided to stop

the vehicle, as evidenced by the defendants’ admission

and Officer Sharkey’s own statements, should not be

misread as adopting a subjective standard that focuses

on Officer Sharkey’s motivations. See Williams, 509 F.3d

at 398-99. Indeed, this case involves a straightforward

application of the objective test set forth by the Supreme

Court in Whren, which requires us to evaluate probable

cause from the perspective of a reasonable officer who

saw what Officer Sharkey saw and heard what he heard.

See United States v. Parra, 402 F.3d 752, 764 (7th Cir. 2005).

The objective perspective dictated by Whren and its

progeny prevents courts from eschewing objective facts

in favor of evaluating the subjective motivations of

a particular officer; however, it is not meant to give

an arresting officer the added benefit of any facts that

come to light after a relevant Fourth Amendment decision

has been made. See Devenpeck, 543 U.S. at 153, 154 (noting

the purposes of the objective test, including its assurance

“that the constitutionality of an arrest under a given set

of known facts” will not vary “from place to place and

from time to time” (internal quotation marks omitted)).

The record before us requires us to conclude that the

district court erred in finding that probable cause

supported the stop. The court did not fail to use the

objective test of probable cause; it simply misapprehended

the facts which the summary judgment record

demonstrates were not within the officer’s knowledge at

the time the stop was made.

No. 09-1010 15

B.

We now turn to Officer Sharkey’s claim that he

enjoys qualified immunity on the claim that he

stopped the vehicle in violation of the Fourth Amendment.

In Wheeler v. Lawson, 539 F.3d 629 (7th Cir. 2008), we

summarized the basic principles governing the law of

qualified immunity:

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), and it thus protects police officers “who

act in ways they reasonably believe to be lawful.”

Anderson v. Creighton, 483 U.S. 635, 638-39 (1987).

The defense provides “ample room for mistaken

judgm ents” and protects all but the

“plainly incompetent [or] those who knowingly

violate the law.” Hunter v. Bryant, 502 U.S. 224,

[229] (1991) (quoting Malley v. Briggs, 475 U.S.

335, 343 (1986)); Clash v. Beatty, 77 F.3d 1045,

1048 (7th Cir. 1996). Qualified immunity protects

those officers who make a reasonable error in

determining whether there is probable cause to

arrest an individual. Anderson, 483 U.S. at 643;

Belcher v. Norton, 497 F.3d 742, 749 (7th Cir. 2007).

Wheeler, 539 F.3d at 639 (parallel citations omitted).

Our discussion up to this point should make

abundantly clear that Officer Sharkey is not entitled to

qualified immunity with respect to the stop. We

summarized the governing principles on qualified

16 No. 09-1010

immunity in the context of probable cause in Williams

v. Jaglowski, 269 F.3d 778 (7th Cir. 2001):

Whether police officers had probable cause to

arrest a suspect and whether they are entitled

to qualified immunity for the arrest are closely

related questions, although qualified immunity

provides the officers with an “additional layer

of protection against civil liability” if a reviewing

court finds that they did not have probable

cause. Hughes v. Meyer, 880 F.2d 967, 970 (7th

Cir. 1989). In an unlawful arrest case in which

the defendants raise qualified immunity as

a defense, this court will “determine if 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 v. Staszak, 148 F.3d 719, 725

(7th Cir. 1998). If the officers can establish that

they had “arguable probable cause” to arrest the

plaintiff, then the officers are entitled to qualified

immunity, even if a court later determines

that they did not actually have probable cause. Id.

Accordingly, we will affirm the district

court’s grant of summary judgment if we find that

“a reasonable p olice officer in the

same circumstances and with the same

knowledge . . . as the officer in question could

have reason ab ly believed that probab le

cause existed in light of well-established law.” Id.

Williams, 269 F.3d at 781 (emphasis in original).

No. 09-1010 17

The record before us contains no evidence that Officer

Sharkey had any factual basis for stopping the plaintiffs

at gun point. He admits that the reasons that he initially

gave for stopping the car—absence of a front license plate

and tinted windows—were not known to him at the time

that he effected the stop. The record shows, moreover, that

the reason that he later gave for the stop—the absence of

tail and brake lights—was not true. As the state court

determined during the earlier criminal proceeding against

the plaintiffs, there is simply no basis in the record upon

which a determination of probable cause can be sustained.

Certainly, any reasonable police officer, acting at the time

Officer Sharkey acted, would have known this elementary

principle of the law of arrest.

C.

Mr. Sawyer asks us to review his claim that he was

subjected to an unreasonable search when—in a parking lot

adjacent to a public street—Officer Sharkey pulled down

Mr. Sawyer’s pants, pulled his underwear away from his

body and directed him to “bend over.”

This claim was litigated in a perfunctory manner before

the district court. Although the defendants moved for

summary judgment on all claims, their memorandum in

support of summary judgment made no mention

whatsoever of Mr. Sawyer’s claim that he had been

searched in an unreasonable manner under the Fourth

Amendment. The plaintiffs’ responsive summary judgment

filings also make no specific mention of this claim, other

18 No. 09-1010

than to repeat their factual allegations regarding the

manner of the search.

Under these circumstances, the absence of any statement

by the defendants as to the facts and law that entitled

them to summary judgment on this claim made the

grant of summary judgment inappropriate. In Wheeler,

we had occasion to summarize the principles that govern

the litigation of summary judgment motions before the

district court:

The moving party bears the initial burden

of demonstrating that these requirements have

been met; it may discharge this responsibility

by showing “that there is an absence of evidence to

support the non-moving party’s case.” Celotex

[Corp. v. Catrett], 477 U.S. [317,] 323 [(1986)]. To

overcome a motion for summary judgment, the

non-moving party must come forward with

specific facts demonstrating that there is a genuine

issue for trial. Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986). The existence

of a mere scintilla of evidence, however, is

insufficient to fulfill this requirement. Anderson

[v. Liberty Lobby], 477 U.S. [242,] 251-52 [(1986)].

The nonmoving party must show that there is

evidence upon which a jury reasonably

could find for the plaintiff. Id.

539 F.3d at 634 (parallel citations omitted).

The first of these principles was not fulfilled in this case.

The defendants, the moving party on the summary

judgment motion, never fulfilled the obligation of setting

No. 09-1010 19

forth the basic facts and law which, in their view,

warranted summary judgment on this claim. The burden

of defeating summary judgment did not shift to the

plaintiffs on this issue simply because, without citation to

relevant facts or authority pertaining to the strip search,

the defendants sought summary judgment on all claims

against all parties.

Although the district court addressed this claim, it did

so in summary fashion and never addressed the gravamen

of Mr. Sawyer’s complaint that it was the manner of

this search that violated the Fourth Amendment. We

believe that this claim must remain open on remand. If

Officer Sharkey files a renewed motion for summary

judgment with respect to this claim and fulfills his

threshold responsibility of setting forth the facts and

law that he believes warrant summary judgment in his

favor, Mr. Sawyer must then shoulder the responsibility

of demonstrating that there is a genuine issue of triable

fact.

D.

In its order granting summary judgment, the district

court determined that all of the plaintiffs’ pendent state

law claims had been waived. The district court was correct.

The summary judgment record demonstrates that, in

contrast to the strip-search claim that we discussed earlier,

the defendants met their obligations with respect to these

state claims by directly addressing them, with citation to

relevant authority and pertinent facts. By contrast, the

plaintiffs’ response on these claims was cursory at best

and included not a single citation to any relevant state

20 No. 09-1010

authority. They now ask us to overturn the district

court’s waiver determination, but do so only in the most

conclusory manner. Their argument contains no specific

reference to the legal requirements necessary to establish

any of the state law claims. Indeed, the state tort claims

are merely bundled together with the federal constitutional

claims, and all of them are addressed in a single

paragraph. See Reply Br. 8 (“Because there was no probable

cause, then everything else was unconstitutional.”). Given

this treatment of the state claims, both on appeal and in the

district court, there is no basis for our reversal of the

district court’s determination.

For the same reason, we cannot address, much less

overturn, the district court’s determination with respect to

the remainder of the plaintiffs’ federal constitutional

claims alleging excessive force, an illegal search of

Mr. Carmichael and the false arrest or unlawful seizure

of both men. On these federal claims, the plaintiffs assert,

in conclusory fashion, only that “because there was no

probable cause, the lynch pin [sic] for defendants’

arguments fails, the conduct of the defendants must be

seen in a different light, and the district court erred in

[granting summary judgment on] these claims.”

Appellants’ Br. 11. The plaintiffs, however, have not

made any independent, substantive legal arguments

about the legality of the officers’ conduct subsequent to the

initial stop and search. We agree that this amounts to a

waiver of these claims.

No. 09-1010 21

Conclusion

For the foregoing reasons, we must reverse the district

court’s judgment with respect to the initial stop of

Mr. Carmichael and Mr. Sawyer. We also must reverse its

judgment with respect to Mr. Sawyer’s claim that he was

searched in a manner violative of his rights under

the Fourth Amendment. In all other respects, the judgment

of the district court is affirmed. Mr. Carmichael and

Mr. Sawyer may recover the costs of this appeal.

A FFIRMED in part;

R EVERSED and R EMANDED in part

5-21-10