Roric Gibbs v. Brooke Lomas

In the

United States Court of Appeals

For the Seventh Circuit

No. 13-3121

RORIC GIBBS,

Plaintiff-Appellee,

v.

BROOKE LOMAS,

Defendant-Appellant.

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 3:12-cv-00789-slc — Stephen L. Crocker, Magistrate Judge.

ARGUED JANUARY 23, 2014 — DECIDED JUNE 17, 2014

Before POSNER and RIPPLE, Circuit Judges, and GILBERT,

District Judge.*

RIPPLE, Circuit Judge. Officer Brooke Lomas, a police officer

in Madison, Wisconsin, responded to a complaint that a man

was driving through downtown Madison while holding an

unholstered gun in the view of other drivers. After locating the

*

The Honorable J. Phil Gilbert, of the United States District Court for the

Southern District of Illinois, sitting by designation.

2 No. 13-3121

individual, Roric Gibbs, she issued a misdemeanor citation for

disorderly conduct and searched his car. The citation was later

dismissed, and Mr. Gibbs then brought this action under 42

U.S.C. § 1983 against Officer Lomas. Mr. Gibbs alleged that the

arrest and search had violated his Fourth Amendment right to

be free from unreasonable searches and seizures. Officer

Lomas moved for summary judgment on the basis of qualified

immunity. The district court denied her motion. We now

reverse that determination. Even if Mr. Gibbs had a constitu-

tional right to be free from this arrest and search, that right was

not clearly established at the time of Officer Lomas’s actions.

The district court should have granted her motion.

I

BACKGROUND

A.

Because this is an interlocutory appeal from a denial of

summary judgment based on qualified immunity, we recount

the facts as “asserted by the plaintiff” or as “assumed by the

district court.” Jewett v. Anders, 521 F.3d 818, 819 (7th Cir. 2008).

On July 15, 2012, Travis and Katherine Gruchow were

driving through Madison, Wisconsin. The Gruchows saw a

young man in a red Jeep Cherokee; he was holding near his

head what appeared to be a handgun. The barrel was pointed

at the ceiling of the Jeep. Mrs. Gruchow called the

nonemergency number for the Madison Police Department.

She told dispatch that she and her husband “saw [a] man

driving with a handgun in his car, so we just thought we

No. 13-3121 3

should report it.”1 The dispatch officer asked whether the

driver was threatening anyone. Mrs. Gruchow replied, “[N]o,

he was driving—we couldn’t tell if it [the gun] was real or

not.”2 She said that the driver had the gun “up in the air when

he was driving, kind of at his side.”3 Mrs. Gruchow told

dispatch that the man had parked at Dexter’s Pub, and she

provided a description of the driver and the vehicle, including

the vehicle’s license plate number. She said that the driver

went into the bar, which she thought “seem[ed] a little off.”4

Dispatch asked again if the driver was threatening someone or

pointing the gun. Mrs. Gruchow said no, but that he had been

“speeding really fast.”5

Dexter’s Pub is located on Officer Lomas’s beat. Dispatch

therefore advised her of the report, giving her a description of

the individual and of the Jeep and telling her that the individ-

ual “had a gun on him” but that “nothing was threatened with

1

R.23 (District Ct. Op.) at 3 (internal quotation marks omitted).

2

Id. (second alteration in original) (internal quotation marks omitted).

3

Id. (internal quotation marks omitted).

4

Id. (internal quotation marks omitted).

5

Id. (internal quotation marks omitted).

4 No. 13-3121

the weapon.”6 Dispatch also stated that the man might be

“armed in the bar.”7 Officer Lomas drove to Dexter’s Pub and,

while en route, called the Gruchows. Mrs. Gruchow told

Officer Lomas that while she and her husband were stopped at

a red light, she had seen the driver of the vehicle in the next

lane holding a black handgun near his head, pointed at the

ceiling. She and her husband had followed the Jeep to Dexter’s

and, during the course of that drive, saw the driver hold the

gun up and point it at the ceiling a second time. Mrs. Gruchow

told Officer Lomas that the suspect was driving “badly,”

specifically that he had accelerated quickly from a red light.8

Mrs. Gruchow stated that it did not appear as though the

driver was going to harm himself. At her deposition, Officer

Lomas recalled that, at the time she spoke with the Gruchows,

she thought it was “very unusual” for someone to drive with

a gun in his hand instead of having it “holstered or in the trunk

or back seat.”9

When Officer Lomas arrived at Dexter’s, her superior,

Sergeant Brian Chaney, already was there. Other officers also

arrived on the scene. The officers decided to look at the Jeep,

6

Id. (internal quotation marks omitted).

7

Audio recording: Dispatch calls (July 15, 2012) (on file with court).

8

R.12 (Lomas Dep.) at 3.

9

Id.

No. 13-3121 5

which was parked and unoccupied, to see if a weapon was

visible. However, before they did so, Mr. Gibbs walked out of

the bar. Mr. Gibbs matched the physical description that the

Gruchows had provided to Officer Lomas. Sergeant Chaney

instructed Mr. Gibbs to show his hands, turn around and put

his hands on the building wall. Mr. Gibbs complied with these

orders. Officer Lomas then handcuffed Mr. Gibbs, and Ser-

geant Chaney frisked him for weapons. During this interaction,

Mr. Gibbs told the officers that he was the driver of the Jeep.

Officer Lomas then placed Mr. Gibbs in the back of a squad car.

While Mr. Gibbs was in the squad car, Officer Lomas called

the Gruchows a second time. According to Officer Lomas,

Mrs. Gruchow added to her earlier statement that “she was

disturbed by the behavior.”10 Officer Lomas recalled that

Mrs. Gruchow stated that

initially she was reluctant to call police because she

knew that the state had just passed new concealed

carry laws, but that based on the driving behavior

and the holding the gun visibly in the vehicle, they

[the Gruchows] thought it was enough to warrant a

call to police to have it checked out.[11]

After this conversation, Officer Lomas explained to

Mr. Gibbs that he was being detained because someone had

seen him driving his vehicle and pointing a gun at the ceiling

10

Id. at 5.

11

Id.

6 No. 13-3121

of the car. She also informed him of his rights under Miranda

v. Arizona, 384 U.S. 436 (1966). After hearing his rights,

Mr. Gibbs told Officer Lomas that he had airsoft guns in his

car. Airsoft guns are replicas of firearms; they usually have the

same color, dimensions, weight and markings as real firearms.

Mr. Gibbs explained that he was on his way home from an

airsoft event, where he had been a referee, when a friend called

and suggested that they meet at Dexter’s for a drink.

The parties disagree as to whether, during the course of this

conversation, Mr. Gibbs consented to Officer Lomas’s search of

the Jeep. Officer Lomas stated that during her discussion with

Mr. Gibbs, he had consented to her looking in the Jeep for the

airsoft weapons.12 By contrast, Mr. Gibbs testified that

Officer Lomas had asked for permission to search his Jeep, but

he had denied it.13 He said that he had offered to get the items

for her but that he had refused her request to search the

vehicle.14 In any event, Officer Lomas searched the Jeep and

found an airsoft shotgun, an airsoft handgun and a plastic

knife. She stated that the handgun was visible just by looking

in the window of the Jeep. She took the airsoft handgun and

placed it in her squad car because she believed that it was

evidence of a disorderly conduct violation.

12

Id. at 6.

13

R.15 (Gibbs Dep.) at 16.

14

At the summary judgment stage, we take Mr. Gibbs’s version of events

as true and assume that there was no consent.

No. 13-3121 7

After the search, Officer Lomas discussed the situation with

Sergeant Chaney, and they decided to issue Mr. Gibbs a

misdemeanor citation for disorderly conduct. Mr. Gibbs signed

the citation to acknowledge that he had received it and that it

was explained to him. He then was released. According to the

law enforcement report, the entire interaction lasted approxi-

mately thirty minutes; Mr. Gibbs says it took about an hour.

The citation was later dismissed pursuant to an agreement

made by Mr. Gibbs’s lawyer and the assistant district attorney

and approved by a state judge.

B.

On October 31, 2012, Mr. Gibbs brought this action against

Officer Lomas under 42 U.S.C. § 1983. He did not name as

defendants any of the other officers who had been present in

the parking lot at Dexter’s Pub. He sought damages and

declaratory relief, alleging that he had been arrested without

probable cause and that his car had been searched without a

warrant, in violation of his rights under the Fourth Amend-

ment as made applicable to the states through the Fourteenth

Amendment. The Gruchows, Officer Lomas and Mr. Gibbs

gave depositions. Officer Lomas then moved for summary

judgment.

In support of her motion, Officer Lomas argued to the

district court that her actions conformed to the Constitution

because she had probable cause to arrest Mr. Gibbs for disor-

derly conduct under Wisconsin state law. She took the view

that, despite a recent statutory amendment that exempts (in the

absence of “other facts and circumstances that indicate a

8 No. 13-3121

criminal or malicious intent”) “loading, carrying, or going

armed with a firearm” from the category of citable disorderly

conduct, see Wis. Stat. § 947.01(2), the totality of the circum-

stances here—that Mr. Gibbs was driving fast on city streets

while pointing an unholstered gun at the ceiling of his

car—gave her probable cause to arrest and cite Mr. Gibbs.

Consequently, she maintained, the search of the car was

constitutionally permissible as a search incident to arrest.

Alternatively, Officer Lomas submitted that she was entitled to

qualified immunity because, at the time she acted, any consti-

tutional right that had been violated was not clearly estab-

lished.

The district court denied Officer Lomas’s motion. In its

view, “the facts known to Lomas at the time were not sufficient

to warrant a belief that Gibbs had committed disorderly

conduct,” and, therefore, Officer Lomas did not have probable

cause to arrest Mr. Gibbs.15 In arriving at its decision, the

district court focused on the recent amendment to Wisconsin’s

disorderly conduct statute: “Although seeing a person hold a

gun in a car likely would alarm many people, and may well

have been a rare sight before the passage of the [statute], the

State of Wisconsin has specifically implemented a right to carry

firearms openly and has explicitly exempted such behavior

from prosecution.”16 The district court concluded that the

issuance of the citation constituted the violation of a clearly

15

R.23 at 1.

16

Id. at 10.

No. 13-3121 9

established constitutional right because a reasonable police

officer in the same circumstances as Officer Lomas would not

believe that she had probable cause to arrest Mr. Gibbs.

Therefore, the district court held that Officer Lomas was not

entitled to qualified immunity. Officer Lomas timely appealed.

II

DISCUSSION

A.

On appeal, Officer Lomas contends, as she did in the

district court, that she did not violate Mr. Gibbs’s constitutional

rights and, even if she did, those rights were not clearly

established when she acted. Accordingly, she urges, she is

entitled to qualified immunity. For the reasons set forth in this

opinion, we believe that there is merit in Officer Lomas’s

submission. We first address several threshold matters.

1.

Our appellate jurisdiction is secure. “[A] district court’s

denial of summary judgment usually is an unappealable

interlocutory order … .” Jewett v. Anders, 521 F.3d 818, 821–22

(7th Cir. 2008). However, there is a well-established exception

to this general rule under the collateral order doctrine where

a party challenges a district court’s determination that a

government official is not entitled to qualified immunity.

Mitchell v. Forsyth, 472 U.S. 511, 524–30 (1985). Of course, when

we exercise this jurisdiction, we have authority only over

10 No. 13-3121

appeals involving “abstract issues of law,” Johnson v. Jones, 515

U.S. 304, 317 (1995), i.e., those in which a district court has

decided, as a matter of law, whether a given set of facts

demonstrates that a violation of a clearly established constitu-

tional right has occurred, see Mitchell, 472 U.S. at 527–30. See

also Board v. Farnham, 394 F.3d 469, 476 (7th Cir. 2005). We do

not have, by contrast, jurisdiction over appeals from district

court orders regarding “‘evidence sufficiency,’” i.e., those in

which a district court has assessed whether a party has

produced sufficient evidence to create a genuine issue of triable

fact warranting trial on the merits. See Johnson, 515 U.S. at

313–18.

Here, Officer Lomas’s appeal clearly falls within the first

category: She submits that, even considering the facts in the

light most favorable to Mr. Gibbs, those facts do not amount to

a clearly established constitutional violation. Therefore,

mindful of the limits of our jurisdiction, we must construe all

facts and inferences in favor of Mr. Gibbs and examine only the

“purely legal question” of whether those facts “make out a

violation of clearly established law.” Huff v. Reichert, 744 F.3d

999, 1004 (7th Cir. 2014) (internal quotation marks omitted).

2.

The standard of review is also well established. We review

de novo the denial of a motion for summary judgment on

qualified immunity grounds. Findlay v. Lendermon, 722 F.3d

895, 899 (7th Cir. 2013).

No. 13-3121 11

In conducting our review, we do not evaluate the

weight of the evidence, 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, 106 S. Ct. 2505, 91

L. Ed. 2d 202 (1986). Summary judgment is proper if

“the pleadings, depositions, answers to interrogato-

ries, 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.”

Jewett, 521 F.3d at 821 (quoting Magin v. Monsanto Co., 420 F.3d

679, 686 (7th Cir. 2005)); see also Fed. R. Civ. P. 56; Celotex Corp.

v. Catrett, 477 U.S. 317, 322–23 (1986).

B.

Having completed our examination of the pertinent

threshold issues, we now come to the merits of Officer Lomas’s

qualified immunity defense.

1.

We first examine the requirements of the qualified immu-

nity doctrine that Officer Lomas maintains protects her from

exposure to trial and liability from damages.

“Section 1983 allows citizens whose constitutional rights

have been violated by public officials to sue those officials in

12 No. 13-3121

their individual capacities.” Fleming v. Livingston Cnty., Ill., 674

F.3d 874, 878 (7th Cir. 2012). In responding to such an action,

a public official may raise the affirmative defense of qualified

immunity. Jewett, 521 F.3d at 823. Qualified immunity “protects

government officials from liability for civil damages insofar as

their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal

quotation marks omitted). This doctrine balances competing

concerns: On one hand, it protects a government official’s

ability to function without the threat of distraction and liability,

see Richardson v. McKnight, 521 U.S. 399, 407–08 (1997); and, on

the other, it affords members of the public the ability to

“vindicate constitutional violations by government officials

who abuse their offices,” Jewett, 521 F.3d at 822 (internal

quotation marks omitted).

Determining whether a defendant state officer is entitled to

qualified immunity involves two inquiries: “(1) whether the

facts, taken in the light most favorable to the plaintiff, make out

a violation of a constitutional right, and (2) whether that

constitutional right was clearly established at the time of the

alleged violation.” Williams v. City of Chicago, 733 F.3d 749, 758

(7th Cir. 2013). If either inquiry is answered in the negative, the

defendant official is entitled to summary judgment. We are

permitted to address the two prongs of qualified immunity in

either order. Pearson, 555 U.S. at 236. With this background, we

now turn to the facts presented by the record.

No. 13-3121 13

2.

Mr. Gibbs claims that, by arresting him for disorderly

conduct, Officer Lomas violated his Fourth Amendment right

to be free from unreasonable seizures. “‘False arrest’ is short-

hand for an unreasonable seizure prohibited by the Fourth

Amendment.” Gonzalez v. Vill. of W. Milwaukee, 671 F.3d 649,

655 (7th Cir. 2012). Because the presence of probable cause

makes a warrantless arrest reasonable under the Fourth

Amendment, “the existence of probable cause is an absolute

defense to a § 1983 claim for false arrest.” Gutierrez v. Kermon,

722 F.3d 1003, 1007 (7th Cir. 2013). Accordingly, Officer Lomas

submits that the record establishes that she had probable cause

to arrest Mr. Gibbs for disorderly conduct. We must evaluate

that submission.

“An officer has probable cause to make an arrest only when

the facts and circumstances within his knowledge and of which

he has reasonably trustworthy information are sufficient to

warrant a prudent person in believing that the suspect has

committed an offense.” Reher v. Vivo, 656 F.3d 772, 776 (7th Cir.

2011). In making this assessment, we ask whether, given the

“totality of the circumstances,” a reasonable officer would

believe that the suspect had committed a crime. Jones v. City of

Elkhart, Ind., 737 F.3d 1107, 1114 (7th Cir. 2013) (internal

quotation marks omitted). “We do not consider the subjective

motivations of the officer.” Id. Where, as here, part of the

officer’s probable cause analysis is based on an informant’s tip,

we have stated that “as long as a reasonably credible witness

or victim informs the police that someone has committed a

crime, or is committing[] a crime, the officers have probable

14 No. 13-3121

cause.” Matthews v. City of E. St. Louis, 675 F.3d 703, 706–07 (7th

Cir. 2012) (internal quotation marks omitted).

Our present task, therefore, is to determine whether the

totality of the circumstances, as known to Officer Lomas at the

time she arrested Mr. Gibbs, gave her probable cause to believe

that Mr. Gibbs had committed the crime of disorderly conduct.

At the time that Mr. Gibbs was handcuffed and placed in the

back of the police vehicle,17 Officer Lomas knew the following,

based on the call from dispatch and her personal phone

conversation with Mrs. Gruchow: (1) Mrs. Gruchow had called

dispatch to report a man driving through Madison with what

looked like a black handgun; (2) Mrs. Gruchow saw the man

holding the gun near his head, pointed at the roof of his car,

while stopped at a red light; (3) the man was driving “badly”

and had accelerated quickly from the red light; (4) while

driving, the man raised the gun and pointed it at the roof of his

car a second time; (5) the man had not threatened anyone or

anything with the gun; (6) the man parked at Dexter’s Pub and

may have entered the bar armed; (7) the Gruchows had

17

As a preliminary matter, we note that both parties assume that there was

an arrest as opposed to an investigatory detention. The district court

proceeded on the same basis. Although neither the parties nor the district

court identified, with any specificity, the point at which an arrest took

place, the parties appear to assume that the arrest occurred when Mr. Gibbs

was handcuffed and placed in the back of a police vehicle. See Appellee’s

Br. 7–8 (explaining what Officer Lomas knew at that point in time); Reply

Br. 3–8 (same); cf. Monroe v. Davis, 712 F.3d 1106, 1115 (7th Cir. 2013) (noting

that placing an individual in handcuffs might indicate that a custodial arrest

has occurred). We shall pretermit an extensive discussion of this point

because, in our view, the matter is not outcome determinative in this case.

No. 13-3121 15

provided a detailed description of the man and his vehicle;

(8) a vehicle matching the description was parked at Dexter’s

Pub; (9) a man matching the description exited Dexter’s Pub;

and (10) when confronted by the police officers, the man said

that he owned the relevant vehicle. Mr. Gibbs does not argue

that the Gruchows were unreliable or that they were not

reasonably credible witnesses, nor does he challenge that

Officer Lomas knew the foregoing information at the time of

his arrest. He only challenges the legal significance of the facts

recounted.

Whether these facts gave Officer Lomas probable cause to

arrest Mr. Gibbs depends on the elements of the crime of

disorderly conduct. See Abbott v. Sangamon Cnty., Ill., 705 F.3d

706, 715 (7th Cir. 2013) (“The existence of probable cause or

arguable probable cause depends, in the first instance, on the

elements of the predicate criminal offense(s) as defined by state

law.”). Wisconsin’s disorderly conduct statute provides:

(1) Whoever, in a public or private place, engages in

violent, abusive, indecent, profane, boisterous,

unreasonably loud or otherwise disorderly conduct

under circumstances in which the conduct tends to

cause or provoke a disturbance is guilty of a Class B

misdemeanor.

(2) Unless other facts and circumstances that

indicate a criminal or malicious intent on the part of

the person apply, a person is not in violation of, and

may not be charged with a violation of, this section

for loading, carrying, or going armed with a firearm,

16 No. 13-3121

without regard to whether the firearm is loaded or

is concealed or openly carried.

Wis. Stat. § 947.01.

There is little question that if we analyzed this case solely

under subsection 947.01(1), Officer Lomas would have had

probable cause to arrest Mr. Gibbs. There are two elements to

a typical disorderly conduct offense in Wisconsin: (1) “that the

defendant engaged in violent, abusive, indecent, profane,

boisterous, unreasonably loud, or similar disorderly conduct”

and (2) “that the defendant’s conduct occurred under circum-

stances where such conduct tends to cause or provoke a

disturbance.” State v. Schwebke, 644 N.W.2d 666, 674 (Wis. 2002)

(internal quotation marks omitted). The Wisconsin courts have

interpreted the phrase “similar disorderly conduct” broadly to

mean “conduct of a type not previously enumerated but

similar thereto in having a tendency to disrupt good order and

to provoke a disturbance.” Id. (internal quotation marks

omitted). Certainly, driving quickly down city streets, holding

an unholstered gun—of any kind or with any level of destruc-

tive capacity—in view of other drivers, is conduct with a

tendency to disrupt public peace and cause the public to fear

for its safety. See id. at 676.

Mr. Gibbs nevertheless argues that Officer Lomas did not

have probable cause to arrest Mr. Gibbs because subsection

947.01(2) provides that absent “facts and circumstances that

indicate a criminal or malicious intent,” an individual cannot

be cited for disorderly conduct “for loading, carrying, or going

armed with a firearm, without regard to whether the firearm

is loaded or is concealed or openly carried.” In Mr. Gibbs’s

No. 13-3121 17

view, Officer Lomas should have realized that this limitation

on the more general language of the statute exempted his

actions from the ambit of the statute.

Subsection 947.01(2) was enacted in 2011 as part of a larger

act that expanded concealed carry rights in Wisconsin.18 The

Wisconsin courts have not yet answered important questions

about this subsection, such as whether the type of conduct at

issue here is “carrying” or “going armed” or is more properly

categorized as unprotected conduct punishable under the

disorderly conduct statute.19

The district court held that, in light of subsection 947.01(2),

Officer Lomas could not have had probable cause to arrest

Mr. Gibbs because she had no evidence that Mr. Gibbs was

18

See Act of July 8, 2011, § 86, 2011 Wis. Sess. Laws 668, 685 (codified at

Wis. Stat. § 947.01(2)) (2011 Wis. Act 35, § 86); see also United States v.

Williams, 731 F.3d 678, 692 (7th Cir. 2013) (Hamilton, J., concurring in part

and concurring in the judgment); Gonzalez v. Vill. of W. Milwaukee, 671 F.3d

649, 654–55 (7th Cir. 2012).

19

The parties dispute the significance of the fact that the weapons here

were not “firearms” but airsoft weapons. In determining whether she had

probable cause to arrest Mr. Gibbs, we are concerned only with the

reasonableness of Officer Lomas’s arrest of Mr. Gibbs and, in particular,

with the extent of her knowledge. When she arrested Mr. Gibbs, she knew

that an individual had been using what looked like a firearm in an unusual

or alarming way. Public safety demands that officers respond expediently

to such threats as if the weapon were real. Mrs. Gruchow’s discussion with

Officer Lomas certainly provided Officer Lomas with enough information

to believe, reasonably, that the weapon was real.

18 No. 13-3121

acting with a criminal or malicious intent. The court contrasted

Mr. Gibbs’s behavior with other conduct that, in its view,

might amount to disorderly conduct under subsection

947.01(2), such as “if Gibbs had placed his hand on the trigger,

or had pointed the gun at someone or something besides the

roof of his own car, or had done anything at all that could

reasonabl[y] be construed by an observer as any sort of

attempt to hurt himself or to threaten others.”20 Ultimately, the

district court held that “the facts known to Officer Lomas at the

time she took Gibbs into custody would not lead a reasonable

person to believe that Gibbs had violated the newly-amended

disorderly conduct statute.”21 It went on to hold that “it would

have been apparent to a reasonable officer that Officer Lomas

had no reasonable basis for arresting Gibbs” and was therefore

not entitled to qualified immunity.22 Whether the Supreme

Court of Wisconsin would take the same view of the scope of

the statute is open to serious question.

We think it would be imprudent to base our decision on

speculation about the appropriate scope of the Wisconsin

statute. In our view, the second section of the disorderly

conduct statute poses significant interpretative problems that

are best answered by the Supreme Court of Wisconsin.

20

R.23 at 10.

21

Id.

22

Id. at 15–16.

No. 13-3121 19

Including the conduct at issue here within the scope of subsec-

tion 947.01(2) would no doubt have significant ramifications on

issues of state and municipal governance in matters of public

safety. In this age of “road rage” and similar motorist misbe-

havior, an individual’s driving around at a high speed while

holding an unholstered weapon in plain view of other motor-

ists raises serious issues of public safety. Whether such activity

constitutes merely “carrying[] or going armed” should be

decided, if at all possible, by a state court far more familiar

with the exigencies of state and local governance and far more

familiar with the legislative practice of its state. If it were

necessary to construe the problematic statutory language in

order to resolve this case, we well might consider using the

certification privilege accorded to us by the Wisconsin legisla-

ture.23 However, such a necessity is not upon us since the

second prong of the established qualified immunity analysis

affords a solid basis for decision. “[I]t is apparent that the

23

Wis. Stat. § 821.01 (“The supreme court may answer questions of law

certified to it by the supreme court of the United States, a court of appeals

of the United States or the highest appellate court of any other state when

requested by the certifying court if there are involved in any proceeding

before it questions of law of this state which may be determinative of the

cause then pending in the certifying court and as to which it appears to the

certifying court there is no controlling precedent in the decisions of the

supreme court and the court of appeals of this state.”); cf. Cir. R. 52(a)

(“When the rules of the highest court of a state provide for certification to

that court by a federal court of questions arising under the laws of that state

which will control the outcome of a case pending in the federal court, this

court, sua sponte or on motion of a party, may certify such a question to the

state court in accordance with the rules of that court, and may stay the case

in this court to await the state court’s decision of the question certified.”).

20 No. 13-3121

alleged right at issue [was] not clearly established” at the time

Officer Lomas acted. Catlin v. City of Wheaton, 574 F.3d 361, 365

(7th Cir. 2009). We have stated:

The relevant inquiry in determining whether a right

is clearly established is whether it would have been

clear to a reasonable officer that his conduct was

unlawful in the situation the officer confronted.

Where the law is open to interpretation, qualified

immunity protects police officers who reasonably

interpret an unclear statute.

Reher, 656 F.3d at 775 (citation omitted). As we noted in Abbott,

705 F.3d at 714, “[t]he probable-cause standard inherently

allows room for reasonable mistakes.” See Brinegar v. United

States, 338 U.S. 160, 176 (1949). Here, we deal with the question

in the context of a false arrest suit where the defendant officer

has the added layer of protection of qualified immunity. In this

situation, we ask whether a reasonable police officer in the

defendant’s shoes could have believed that probable cause

existed.

We are convinced that Mr. Gibbs did not meet his burden

of refuting Officer Lomas’s qualified immunity defense either

by “identifying a closely analogous case or by persuading the

court that the [officer’s] conduct [wa]s so egregious and

unreasonable that, notwithstanding the lack of an analogous

decision, no reasonable officer could have thought [s]he was

acting lawfully.” See Abbott, 705 F.3d at 723–24. Instead of

identifying an analogous case, Mr. Gibbs—like the district

court—points to an informal Advisory Memorandum by the

Wisconsin Attorney General entitled, “The Interplay Between

No. 13-3121 21

Article I, § 25 Of The Wisconsin Constitution, The Open Carry

Of Firearms And Wisconsin’s Disorderly Conduct Statute, Wis.

Stat. § 947.01.” Memorandum from J.B. Van Hollen, Attorney

Gen., to Wis. Dist. Attorneys, Deputy Dist. Attorneys &

Assistant Dist. Attorneys (Apr. 20, 2009), available at

http://www.doj.state.wi.us/sites/default/files/2009-news/final-

open-carry-memo-2009.pdf. The Advisory Memorandum

states that “the mere open carrying of a firearm by a person,

absent additional facts and circumstances, should not result in

a disorderly conduct charge.” Id. at 1, ¶ 1. The Advisory

Memorandum is not, of course, the sort of definitive statement

of the law by the courts that would make a constitutional

violation “clearly established.”24 More importantly, the

memorandum fails to support Mr. Gibbs’s position because it

specifically acknowledges, “Even when an act facially resem-

bles the exercise of a protected right, the facts and circum-

stances of a case may give rise to a disorderly conduct charge.”

Id. at 3, ¶ 5. Notably, the memorandum provided an example:

“[A] person openly carrying a holstered handgun on his own

property while doing lawn work should not face a disorderly

conduct charge. If, however, a person brandishes a handgun in

public, the conduct may lose its constitutional protection.” Id.

at 4, ¶ 7. Far from clearly establishing that Mr. Gibbs’s conduct

was not illegal, the memorandum leaves open the distinct

possibility that Mr. Gibbs’s conduct here might be character-

24

The Advisory Memorandum was published in 2009, well before

subsection 947.01(2) was enacted. Therefore, its relevancy to the new

disorderly conduct statute is questionable.

22 No. 13-3121

ized as the equivalent of “brandish[ing] a handgun in public”

and therefore constitute disorderly conduct. Id.

As we have noted earlier, the mere addition of subsection (-

2) to section 947.01 hardly makes the law “clearly established.”

The Wisconsin courts have yet to interpret key terms of the

subsection, such as “going armed with” and “criminal or

malicious intent.”

Nor is this the sort of case where Officer Lomas’s conduct

was so egregious as to be recognized universally by law

enforcement officers as unlawful. Rather, as we have suggested

earlier, a reasonable police officer—indeed, a reasonable

court—could believe that, under the facts described above, far

more than the statutorily exempted activity of “loading,

carrying, or going armed with a firearm” was taking place.

Despite Mr. Gibbs’s repeated contentions that he was “just

driving,” he obviously was doing more than that.

Indeed, his conduct also was sufficient for a reasonable

officer to conclude—in the absence of any guidance from the

Wisconsin courts—that a criminal or malicious intent was

present, thus removing any protection that subsection 947.01(2)

would otherwise have given Mr. Gibbs. For example, Wiscon-

sin state law prohibits firing a gun from a vehicle, see Wis. Stat.

§§ 167.31(2)(c), 941.20(3), and an officer who receives a tip that

an individual was visibly handling an unholstered weapon

while speeding may believe reasonably that the individual had

the intent to violate that prohibition. Wisconsin also prohibits

entering a bar with a handgun under most circumstances, see

Wis. Stat. § 941.237(2), and the facts known to Officer Lomas

when she arrested Mr. Gibbs may have suggested that he had

No. 13-3121 23

the intent to violate this statute. Apart from these statutorily

based examples of how the facts of this case may have indi-

cated a specific criminal intent, it is also reasonable to interpret

these facts as indicating a more general malicious intent. Based

on the facts known to Officer Lomas about Mr. Gibbs’s

behavior, it would have taken no more than an adjustment of

his hand position before the gun was pointed out the window

of his vehicle or even at himself. A reasonable officer in Officer

Lomas’s shoes could have interpreted Mr. Gibbs’s conduct as

motivated by an intent to harm himself or others.

In sum, even if Officer Lomas was mistaken in believing

that she had probable cause to arrest Mr. Gibbs, such a mistake

was reasonable in light of the facts and circumstances of this

case and in light of the undeveloped case law regarding

subsection 947.01(2). Consequently, contrary to the conclusion

of the district court, Officer Lomas was entitled to qualified

immunity for her arrest of Mr. Gibbs.

3.

Mr. Gibbs also contends that the search of his car by Officer

Lomas violated his Fourth Amendment rights. The Fourth

Amendment prohibits, with limited exceptions, warrantless

searches. See Arizona v. Gant, 556 U.S. 332, 338 (2009). However,

“[a]mong the exceptions to the warrant requirement is a search

incident to a lawful arrest.” Id.; Peals v. Terre Haute Police Dep’t,

535 F.3d 621, 627 (7th Cir. 2008). Under the search-incident-to-

arrest exception, law enforcement may search a vehicle

“incident to a recent occupant’s arrest … (1) if the arrestee is

within reaching distance of the vehicle during the search, or

24 No. 13-3121

(2) if the police have reason to believe that the vehicle contains

evidence relevant to the crime of arrest.” Davis v. United States,

131 S. Ct. 2419, 2425 (2011) (internal quotation marks omitted).

Here, the search was conducted because Officer Lomas had

reason to believe that the vehicle contained evidence relevant

to the crime of arrest—namely, the weapon that Mr. Gibbs had

been holding while driving through Madison. Mr. Gibbs’s

entire argument regarding the search is that because the arrest

violated his clearly established constitutional rights, the search

also violated those rights. He makes no other arguments. Since

we have held that a reasonable officer in Officer Lomas’s shoes

could have determined that she had the authority to arrest

Mr. Gibbs, it follows that such a reasonable officer also could

conclude that she had the authority to search the vehicle

incident to that arrest.25

Consequently, we hold that the search of Mr. Gibbs’s

vehicle for the weapon involved in the offense of arrest did not

violate Mr. Gibbs’s clearly established rights, and Officer

25

An alternative basis for finding Officer Lomas’s actions to be within the

bounds of the Constitution is the “automobile exception” to the Fourth

Amendment’s warrant requirement. Officer Lomas could search Mr. Gibbs-

’s Jeep because she had probable cause to believe that she would find

evidence of illegal activity (the handgun) in the car. See, e.g., Arizona v. Gant,

556 U.S. 332, 347 (2009); United States v. Ross, 456 U.S. 798, 806–07, 825

(1982); Carroll v. United States, 267 U.S. 132, 149, 153–56 (1925); United States

v. Washburn, 383 F.3d 638, 641 (7th Cir. 2004) (recognizing that the

“automobile exception” to the Fourth Amendment’s warrant requirement

allows “a warrantless search of a vehicle to be conducted so long as there

is probable cause to believe it contains contraband or evidence of illegal

activity”).

No. 13-3121 25

Lomas is entitled to immunity from suit for her search of the

vehicle.

Conclusion

We find it unnecessary to decide whether Officer Lomas

violated Mr. Gibbs’s constitutional rights to be free from arrest

for disorderly conduct and to be protected against a search

incident to that arrest because any constitutional rights

implicated were not clearly established at the time of Officer

Lomas’s actions. Therefore, Officer Lomas was entitled to

qualified immunity, and the district court erred in denying her

motion for summary judgment. Accordingly, we reverse the

decision of the district court and remand for further proceed-

ings consistent with this opinion. Officer Lomas may recover

her costs in this court.

REVERSED and REMANDED