D.Z. Ex Rel. Thompson v. Buell

In the

United States Court of Appeals

For the Seventh Circuit

No. 14-1490

D.Z., by his Next Friend,

A. Thompson,

Plaintiff-Appellant,

v.

MARK BUELL,

Defendant-Appellee.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 12 C 7580 — Daniel G. Martin, Magistrate Judge.

ARGUED NOVEMBER 14, 2014 — DECIDED AUGUST 6, 2015

Before BAUER, FLAUM, and TINDER, Circuit Judges.

BAUER, Circuit Judge. Plaintiff-appellant, D.Z., a minor,

filed suit under 42 U.S.C. § 1983, claiming that defendant-

appellee, Evanston Police Officer Mark Buell (“Buell”), violated

his rights under the Fourth Amendment when he detained

D.Z. in connection with a reported burglary. Buell moved for

summary judgment, raising, inter alia, the defense of qualified

immunity. The district court granted Buell’s motion, finding

2 No. 14-1490

that Buell’s stop of D.Z. was supported by reasonable sus-

picion and that, assuming that D.Z.’s detention amounted to a

custodial arrest, Buell was entitled to qualified immunity

because he had arguable probable cause to arrest D.Z. We

affirm.

I. BACKGROUND

On August 30, 2012, a resident in Evanston, Illinois,

reported that she had observed a burglar in her home. She

described the intruder to a police dispatcher as a “young boy,

African American, [wearing] cargo khaki shorts, dark brown

T-shirt or [a] dark shirt.” Additionally, she told the dispatcher

that she had observed the intruder running northbound down

an alley. The dispatcher relayed the description of the intruder

on the police dispatch radio, describing the suspect as a “black

male, probably in his teens, wearing a dark shirt, and khaki

cargo shorts.”

Buell, in addition to several other Evanston police officers,

heard the broadcast while he was driving with a fellow officer,

Russell Brown. Upon hearing the broadcast, which did not

include any detail about the direction of flight that the suspect

took, the officers drove toward the location of the burglary. As

they were searching in the area, one of them noticed an

individual on a bicycle matching the suspect’s description at a

nearby intersection heading east. After notifying the police

dispatcher of the sighting, the officers attempted to catch up to

the cyclist but were unable to do so. Shortly thereafter, the

dispatcher sent out a second description of the suspect,

describing him as “a male, black juvenile with a dark shirt and

khaki, uh, shorts or pants, cargo pants.” Another officer alerted

No. 14-1490 3

dispatch that he had spotted an individual on a bicycle at an

intersection just south of the victim’s house. The officer

stopped the individual and detained him until the burglary

victim could come to the scene for a “show up.” When she

arrived, however, she stated that the person who had been

stopped was not the individual who had entered her home.

The officer radioed to say that no other units were needed, and

the search continued.

Around the same time, Officer Amy Golubski reported a

suspect riding a bicycle near Chute Middle School, which is

located less than a half mile south of the scene of the burglary.

She described the cyclist—D.Z.—as riding a blue bike and

wearing “cargo shorts [unidentifiable] dark navy or black …

[and] a light gray tank top, blue cap.” Golubski was directed

by someone over the radio to “put a stop” on the individual, so

she exited her vehicle and pursued D.Z. on foot. Ultimately,

Golubski was unable to catch up to D.Z., who rode his bike

through the field in front of the school (a shortcut that he

regularly took to get home). Buell heard Golubski on the radio

state that she could not catch the suspect and spotted Golubski

heading back quickly to her car. Both Buell and his partner

stated that Golubski sounded out of breath over the radio,

leading them to believe that D.Z. had tried to evade her.

Buell then attempted to catch D.Z. by turning down a

nearby street. He spotted D.Z. riding his bicycle and turning

into the driveway of a home located less than a half mile from

the victim’s home. Buell stated that he saw D.Z. turn and look

in his direction, before getting off his bike and heading to a

fence at the top of the driveway. Unaware that the residence

was D.Z.’s own, Buell sent out a radio dispatch that the suspect

4 No. 14-1490

was “cutting through the yards,” then exited his vehicle and

pursued D.Z. on foot. Buell stated that he saw D.Z. put his

hands on the fence, which led Buell to conclude that D.Z. was

trying to flee. Buell ordered D.Z. to stop and put his hands up,

an order that D.Z. promptly obeyed, and Buell placed him in

handcuffs. Buell subsequently brought D.Z. to the front of the

driveway and radioed for the burglary victim to be brought to

the scene for another “show up.” The victim arrived shortly

thereafter and stated that D.Z. was not the intruder, at which

point D.Z. was released.

D.Z. brought this action against Buell, pursuant to 42 U.S.C.

§ 1983, alleging that Buell violated his rights under the Fourth

Amendment when he detained him on August 30, 2012. D.Z.

also alleged various state-law claims against Buell and brought

suit against the City of Evanston, alleging a “failure to train”

claim, pursuant to Monell v. Dep’t of Soc. Servs., 436 U.S. 658

(1978), and several state-law claims. D.Z. voluntarily dismissed

his Monell claim against the City of Evanston and moved for

summary judgment on his Fourth Amendment claims against

Buell, which the district court denied. Buell also moved for

summary judgment, raising the defense of qualified immunity

as to D.Z.’s Fourth Amendment claims and state-law immunity

as to D.Z.’s state-law claims. The district court granted Buell’s

motion for summary judgment, finding that Buell had reason-

able suspicion to stop D.Z. and, assuming that D.Z.’s detention

amounted to a custodial arrest, that Buell was entitled to

qualified immunity because he had arguable probable cause to

arrest D.Z. As to D.Z.’s state-law claims against Buell, the

district court declined to exercise supplemental jurisdiction

No. 14-1490 5

and dismissed those claims without prejudice. This appeal

followed.

II. DISCUSSION

D.Z. contends that the district court improperly granted

summary judgment to Buell on his § 1983 claims. He argues

further that the district court erred in not considering the

testimony and affidavits of his proffered expert. We review

de novo the district court’s grant of summary judgment. Catlin

v. City of Wheaton, 574 F.3d 361, 365 (7th Cir. 2009). Summary

judgment is appropriate when, after viewing the facts in the

light most favorable to the non-moving party, the court finds

that there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law. We also review

de novo a qualified immunity determination, Siliven v. Ind. Dep’t

of Child Servs., 635 F.3d 921, 925 (7th Cir. 2011), and review the

district court’s decision not to consider the testimony of D.Z.’s

expert witness for an abuse of discretion, Good Shepherd Manor

Found., Inc. v. City of Momence, 323 F.3d 557, 564 (7th Cir. 2003).

A. Qualified Immunity

“Qualified immunity protects public officials from liability

for damages if their actions did not violate clearly established

rights of which a reasonable person would have known.”

Catlin, 574 F.3d at 365. Neither party disputes that D.Z.’s

constitutional right to be free from unreasonable seizure was

clearly established at the time of the incident. Thus, since the

law was clear at the time of the incident, the only question is

whether Buell violated D.Z.’s constitutional rights when he

stopped and detained him on August 30, 2012. The district

court followed the parties’ preference in dividing the analysis

6 No. 14-1490

into whether Buell had reasonable suspicion to stop D.Z., and

the separate question of whether he had probable cause to

arrest D.Z. In the interest of consistency, we will do the same.

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 has occurred. 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)

(quoting United States v. Lawshea, 461 F.3d 857, 859 (7th Cir.

2006)); see also Terry, 392 U.S. at 21–22. Reasonable suspicion is

more than a hunch—when an officer initiates a Terry stop, he

must be able to point to specific facts that suggest that a

stopped individual has committed, was committing, or is

about to commit an offense. Jewett v. Anders, 521 F.3d 818, 823

(7th Cir. 2008); Lawshea, 461 F.3d at 859.

In evaluating whether an officer had the requisite reason-

able suspicion to support a Terry stop, we must look at “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.” Lawshea, 461 F.3d

at 859. For this reason, certain behavior that may seem inno-

cent under some circumstances, may amount to reasonable

suspicion when viewed in the context at play at the time of the

stop. United States v. Grogg, 534 F.3d 807, 810 (7th Cir. 2008)

(citing Lawshea, 461 F.3d at 859). The standard is objective and

asks, “would the facts available to the officer at the moment of

the seizure … warrant a man of reasonable caution in the belief

No. 14-1490 7

that the action taken was appropriate?” United States v. Tilmon,

19 F.3d 1221, 1224 (7th Cir. 1994) (internal citations and

quotations omitted). An officer’s subjective intent does not

factor into this analysis. United States v. Barnett, 505 F.3d 637,

639–40 (7th Cir. 2007).

Given the totality of the circumstances and the information

known to Buell at the time that he stopped D.Z., we agree with

the district court that Buell had reasonable suspicion to initiate

an investigatory stop. Buell responded to a police dispatch that

included five, specific identifying characteristics—race, age,

gender, shirt color, and type of shorts. While D.Z. argues that

this broadcast was too broad, such descriptions are not to be

viewed in isolation—the question of whether reasonable

suspicion exists goes beyond a suspect’s description, and may

include such factors as the temporal and geographic proximity

of the stop to the reported crime, and the behavior of the

suspect.

The evidence shows that within minutes of the police

dispatch, Buell and his partner headed toward the scene of the

burglary to look for the suspect in the area. Not having been

told that the suspect ran northbound down an alley, the

officers spotted an individual just south of the victim’s home

who somewhat matched the description of the suspect and

who was heading east on a bicycle. After relaying this informa-

tion over the radio, Buell, his partner, and other officers in the

area, began their search in the area immediately south of the

victim’s home—not an unreasonable decision, given the fact

that the bicyclist bore a resemblance to the dispatcher’s

description of the suspect and was spotted heading away from

the residence in the immediate vicinity of the victim’s home,

8 No. 14-1490

just minutes after the 911 call. D.Z., who matched most of the

five specific identifying characteristics to some extent, was also

riding his bike that afternoon, less than a quarter mile south of

the victim’s home, minutes after the 911 dispatch. Buell heard

Golubski’s dispatch and knew that she attempted to put a stop

on D.Z. and failed.

Based on a number of his own observations, Buell reason-

ably concluded that D.Z. had tried to evade Golubski. Al-

though it is undisputed that D.Z. was actually unaware that

Golubski tried to stop him, Golubski did not state over the

radio that D.Z. was oblivious to her pursuit, she merely

reported that she could not catch him and that she would have

to “drive around.” Buell testified that he saw Golubski head

quickly back toward her vehicle when she couldn’t reach D.Z.

and believed that she sounded out of breath when she told

dispatch that she was unable to make the stop.1 It is objectively

reasonable for an officer to conclude, based on a fellow officer’s

breathless tone of voice and behavior after unsuccessfully

attempting to stop a suspect, that the suspect was deliberately

trying to evade the officer. Thus, coupled with D.Z.’s character-

istics and proximity to the crime, Buell’s belief that D.Z. had

tried to outrun the police gave him reasonable suspicion to

stop D.Z.

1

Although D.Z. argues that whether Golubski ran or walked back to her

car is a disputed fact, he presents no evidence to support this contention.

We agree with the district court that Golubski’s statements regarding her

attempted stop of D.Z. are not contradictory and that Buell’s contention that

he saw Golubski head quickly to her car is supported by the record.

No. 14-1490 9

We now move on to the separate question of whether or not

Buell had probable cause to arrest D.Z. The Fourth Amend-

ment guarantees the constitutional right to be free from arrest

without probable cause. See Baker v. McCollan, 443 U.S. 137

(1979). “Probable cause is a common-sense determination,

measured under a reasonableness standard.” Humphrey v.

Staszak, 148 F.3d 719, 726 (7th Cir. 1998). A police officer has

probable cause to arrest a suspect if, at the time of the arrest,

the facts and circumstances within the officer’s knowledge are

sufficient to warrant a prudent person in believing that the

suspect has violated the law. Beck v. Ohio, 379 U.S. 89 (1964);

Wagner v. Wash. Cnty., 493 F.3d 833, 836 (7th Cir. 2007) (per

curium). However, even if probable cause is lacking with

respect to an arrest, an officer is entitled to qualified immunity

if his subjective belief that he had probable cause was objec-

tively reasonable. Humphrey, 148 F.3d at 726. Thus, when a

defense of qualified immunity has been raised, we ask whether

“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, 148 F.3d at 725. In other words, we ask whether the

officer had “arguable” probable cause. Id.

The district court did not address whether Buell arrested

D.Z. or not; rather, it held that, even if an arrest took place,

Buell was entitled to qualified immunity because he had

arguable probable cause to effect an arrest. We agree. Buell’s

pursuit of D.Z. occurred immediately after he mistakenly, but

reasonably, concluded that D.Z. had evaded Golubski. He then

observed D.Z. turn into the driveway of a home, get off of his

bike and head to the fence, which led him to conclude that D.Z.

10 No. 14-1490

was “cutting through the yards.” Finally, he observed D.Z.

place his hands on the fence, which led him to conclude that

D.Z. was going to scale it.2 Under these facts, Buell had

arguable probable cause to effect an arrest. Although D.Z. was

not actually trying to run from the police, Buell’s mistaken

conclusion that he was does not preclude this court from

finding that Buell is entitled to qualified immunity. See Edwards

v. Cabrera, 58 F.3d 290, 293 (7th Cir. 1995) (“Even if probable

cause is lacking with respect to [an] arrest, despite the officers’

subjective belief that they had probable cause, they are entitled

to immunity as long as their belief was objectively reason-

able.”). Since we find that Buell reasonably believed, based on

the behavior he observed, that D.Z. was trying to evade the

police, Buell is entitled to qualified immunity.

2

D.Z. argues that the question of whether or not his hands were on the

fence, as Buell maintains and Brown corroborated, is in dispute. We

disagree. D.Z. argues that “[t]here is no plausible explanation as to why [he]

would have needed to place his hands on top of a fence” because the latch

was on the outside, facing him. However, D.Z. is silent on the issue of

whether he did, in fact, put his hands on the fence at any time before Buell

ordered him to stop. It is D.Z.’s responsibility to come forth with specific

facts demonstrating that a genuine issue of material fact exists for trial, and

he may not rely upon mere allegations and bare assertions to do so. See

Wollin v. Gondert, 192 F.3d 616, 621 (7th Cir. 1999). Because he failed to

present such evidence, even when the evidence is viewed in the light most

favorable to D.Z., there is no basis to dispute that Buell saw D.Z. place his

hands on the fence prior to the stop.

No. 14-1490 11

B. Excluded Expert Testimony

D.Z. argues that the district court erred in not considering

the statements of his proffered expert witness on summary

judgment. Courts have wide discretion in deciding whether to

admit expert testimony as part of summary judgment. Lewis v.

CITGO Petroleum Corp., 561 F.3d 698, 704–05 (7th Cir. 2009).

The district court disregarded the expert’s statements for

several reasons, the first of which being that D.Z. failed to

discuss the expert’s opinions in his brief below. Although D.Z.

cited to the expert’s report and deposition, the court found that

he did so without any specificity or discussion. Because courts

are “not required to scour the record looking for factual

disputes … [or] to piece together appropriate arguments,”

Little v. Cox’s Supermarkets, 71 F.3d 637, 641 (7th Cir. 1995)

(internal quotations and citations omitted), the district court

declined to consider D.Z.’s expert’s statements.

The district court’s decision does not constitute an abuse of

discretion. At the summary judgment level, “the district court’s

role in deciding the motion is not to sift through the evidence,

pondering the nuances and inconsistencies, and decide whom

to believe.” Waldridge v. American Hoechst Corp., 24 F.3d 918,

920 (7th Cir. 1994). The court is only tasked with deciding

whether, based on the evidence of record, there is any material

dispute of fact that requires a trial. Id. As D.Z.’s failure to cite

to the expert’s testimony with specificity left the district court

to sift through hundreds of pages of expert testimony, it was

not improper for the district court to decline to consider the

expert’s statements.

AFFIRMED