Estate of Adam Brown v. Timothy Thomas

In the

United States Court of Appeals

For the Seventh Circuit

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No. 14-1867

ESTATE OF ADAM BROWN,

Plaintiff-Appellant,

v.

TIMOTHY THOMAS, MATTHEW SECOR, and BROWN COUNTY,

Defendants-Appellees.

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Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 1:12-cv-01202-WCG — William C. Griesbach, Chief Judge.

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ARGUED OCTOBER 3, 2014 — DECIDED NOVEMBER 13, 2014

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Before POSNER, ROVNER, and TINDER, Circuit Judges.

POSNER, Circuit Judge. Adam Brown, age 22, was at home

with two friends in his ground-floor apartment in Green

Bay, Wisconsin at 6:20 p.m. on a December evening, when

there was a sudden knocking on his door and a yell of “po-

lice, search warrant!” As the police began to force open the

front door when no occupant opened it, Brown ran upstairs

to his bedroom and grabbed an unloaded shotgun that he

kept there. Police followed. As they reached the top of the

2 No. 14-1867

stairs they saw him standing in a corner of the bedroom

pointing the shotgun at them. One of the officers, defendant

Secor, shot Brown dead with an automatic rifle, precipitating

this suit under 42 U.S.C. § 1983 against Secor, another officer

in the search party (Thomas, who has, however, since been

dismissed from the case), and their employer, Brown Coun-

ty. The district court granted summary judgment in favor of

the defendants, precipitating this appeal by Brown’s estate.

Secor had no way of knowing that the shotgun was un-

loaded. Had it been loaded with buckshot a single shot at so

close a range would have been fatal. The estate contends not

that Secor shouldn’t have pulled the trigger when he saw a

shotgun was pointed at him but that the police search was

executed in an unreasonable manner (see, e.g., Terebesi v.

Torreso, 764 F.3d 217, 233–36 and n. 16 (2d Cir. 2014); cf.

Petkus v. Richland County, 767 F.3d 647, 650–52 (7th Cir.

2014)), violating the Fourth Amendment and causing Secor

mistakenly to think he had to kill Brown in self-defense.

According to the estate’s version of events, when Brown

peered out of his front window in response to the knocking

and the shout he found himself face to face with a man—it

was Officer Secor—holding an automatic rifle, dressed in

dark civilian clothes, with long hair, earrings, a goatee, and

sideburns, and wearing a hoodie and a baseball cap. Brown

turned away from the window, yelled “What the fuck … we

are getting robbed again” (recently the apartment had been

robbed by a person pretending to be an acquaintance), and

fled upstairs. One of Brown’s friends yelled to him “Get the

shotty!” as Brown streaked to the back of the apartment and

up the stairs to his bedroom (the apartment was a duplex).

Within seconds the police broke down the front door and

No. 14-1867 3

entered—five in all, two others having gone around to the

back of the house to stop anyone from leaving by the rear

door.

The officers had a valid search warrant; there was proba-

ble cause to believe that a burglar had hidden stolen proper-

ty in Brown’s apartment. The County’s practice is for almost

all searches to be executed by a drug task force trained in

SWAT tactics and therefore heavily armed. In order to be

sure that the search will indeed be of the building specified

in the warrant, the team dispatches undercover officers to

find the building and lead the team into it. Secor was one of

the undercover officers, which was why he was accoutered

as he was. The only indication that he was a police officer

rather than a criminal was a badge he was wearing around

his neck, and it’s unclear whether Brown could have seen

the badge in the dark when he looked through his window

to see who was outside shouting. The officer standing be-

hind Secor was wearing a jacket that said “police,” as well as

a badge, but was otherwise dressed in civilian clothes like

Secor. The other three officers in the group that entered the

apartment were wearing standard police uniforms but had

been in the background, in darkness, when Brown peered

outside.

The estate’s case begins with the contention that the po-

lice had no need to conduct the search after dark (it is dark

at 6:20 p.m. in December in Green Bay—sunset was at 4:14

p.m. the day of the search). There was no urgency. It was not

like the search of a stash house, which might contain large

quantities of drugs and money. The police were looking for

some loot of modest value (a video game system, a couple of

video games, and a few other small items) plus the burglar

4 No. 14-1867

who had stolen it, whom the police correctly believed to be

in Brown’s apartment. Brown himself was not the suspect. In

these circumstances, the estate argues, the search didn’t have

to be conducted by a heavily armed SWAT team, let alone a

team led by an undercover police officer who looked like an

armed thug. It was especially dangerous, the argument con-

tinues, for him to be the first officer whom an occupant of

the apartment would see, because home invasions by crimi-

nals pretending to be police are apparently common, though

remember that the previous break-in to Brown’s apartment

had been by someone pretending to be an acquaintance ra-

ther than a cop.

If the search was conducted in an unreasonable manner

and therefore violated the Fourth Amendment—more pre-

cisely the principles of the Fourth Amendment, deemed ap-

plicable by interpretation of the due process clause of the

Fourteenth Amendment to state and local searches—and

Brown would not have been killed had the search been con-

ducted in a reasonable manner, then his estate has a valid

claim against Officer Secor and maybe (as we’ll see) against

Brown County as well.

The police had considered whether to conduct so forceful

a search, and had decided to do so mainly because they

thought that the burglar who had stashed the loot in the

apartment was an escapee from jail, where he was serving

time for robbery, and might put up a struggle. (He didn’t.)

The police also had “word” that Brown and his girlfriend

(who lived with him but was not in the house at the time)

were always in “trouble.” What type of trouble was not fur-

ther specified but the fact that Brown turned out to possess

illegal shotguns (he had two, only one of which he bran-

No. 14-1867 5

dished) suggests that their suspicion may have been justi-

fied.

The judge ruled that the search was reasonable, although

nighttime searches, especially of a residence (which unlike a

store or an office building is likely to be occupied at night),

are risky undertakings, and disfavored. Although there is a

difference between a search late at night, when the residents

are likely to be asleep, and a search in late afternoon or early

evening, there doesn’t seem to have been any reason not to

postpone the search of Brown’s apartment till daylight. In-

deed since it was dark and the police could not be clearly

identified until they entered, the decision to search before

daybreak seems to have been foolish. The defendants say

that the police were heavily armed because they anticipated

several occupants, one a “robber” who had escaped from jail

and two others who were regarded as “trouble.” But the

robber (the burglar) was not an escapee in the traditional

sense. A participant in a work-release program at the county

jail, he had been authorized to go to work in the morning

but required to return in the evening—which he’d failed to

do at some point before the search took place.

The defendants don’t argue that the police had to be

heavily armed because the occupants might be armed; they

didn’t know about the shotguns in the apartment, or any

other weapons. Putting the suspicious-looking undercover

officer at the front of the police team has not been explained.

True, the undercover officer is the member of the team who

knows the address and is therefore least likely to knock on

the wrong door, cf. Balthazar v. City of Chicago, 735 F.3d 634

(7th Cir. 2013), but Secor could have told one of the officers

with him “that’s the door,” and having done so stepped back

6 No. 14-1867

so as not to be visible from the doorway or a window. But

who knocked is not important. What is important is that

when Brown, alarmed by the knocking, peered out of the

window, there in plain view was ominous-looking, no-

uniform Secor. No doubt the undercover officer, having su-

perior knowledge of the suspects, maybe of the interior of

the residence, and so forth, should be part of the search

team; the question is whether he should be at the very front

of the team, hence the person most likely to be seen by an

occupant of the residence.

The appendix to the estate’s brief contains a formidable

expert report by William T. Gaut, holder of several degrees,

including a Ph.D. in Criminal Justice, and a police officer for

24 years who attained high rank in the Birmingham, Ala-

bama police department and has also been employed by pri-

vate security firms. His report emphasizes the difference be-

tween drug searches and searches for stolen property, and

the need to utilize the kind of methods used in the search of

Brown’s apartment when one is searching for illegal drugs—

but not otherwise—because drug dealers tend to be heavily

armed and drugs often can easily be disposed of. Although

it was the drug task force that conducted the search of

Brown’s apartment, it was not looking for drugs; and Gaut

argues in his report that when searching merely for stolen

property (unless of course the property consists of illegal

drugs), the search “should be conducted during daylight

hours” and “an easily identifiable police officer shall knock

and notify persons inside” in order “to reduce or eliminate

the possibility of misidentification. It is well known that

perpetrators of a home invasion, for the purpose of gaining

entry, sometimes impersonate police officers” but rarely

“have the complete visual identity including clothing with

No. 14-1867 7

the word ‘POLICE’ prominently written on both the front

and back.” The report also notes that there was a lot of con-

fused shouting by the officers as they piled into Brown’s

apartment; apparently one officer shouted “Get down,

mother fucker!” which might have made the occupants in-

cluding Brown further suspect that the intruders weren’t re-

ally cops.

Gaut’s report concludes that the search of the apartment

was a “gross deviation from accepted police practices and

procedures by the Brown County Sheriff’s Office,” a devia-

tion that rose “to the level of substantial, deliberate indiffer-

ence for the rights and safety of” Brown.

But even if Gaut’s report is 100 percent on the mark, it

can’t justify imposing liability on Secor. Secor did not devise

the search policy adopted by Brown County. He was doing

what he was told to do when, accoutered as he was, he led

the search of Brown’s apartment. Of course if one is told by

one’s superiors to do something that is obviously illegal, it is

no defense that one was just obeying orders; that was a de-

fense conclusively rejected at the Nuremberg trials of Nazi

war criminals. But the situation in this case was not that ex-

treme. There were as we mentioned reasons for having the

undercover officer, who needs a goatee, sideburns, etc. in his

undercover work, lead the search. There was no compelling

reason for him to be the one to knock on the door, but it

wasn’t because of that, but because he was visible through

the window, that Brown saw him and commenced his fatal

flight.

Even if we thought Secor may have been exceeding

proper constitutional bounds in leading the search given his

appearance, he would still be entitled to qualified immunity,

8 No. 14-1867

thus defeating the estate’s claim against him. As explained in

Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014), “a defendant

cannot be said to have violated a clearly established right

unless the right’s contours were sufficiently definite that any

reasonable official in the defendant’s shoes would have un-

derstood that he was violating it. In other words, ‘existing

precedent must have placed the statutory or constitutional

question’ confronted by the official ‘beyond debate.’ In addi-

tion, ‘[w]e have repeatedly told courts ... not to define clearly

established law at a high level of generality,’ since doing so

avoids the crucial question whether the official acted reason-

ably in the particular circumstances that he or she faced” (ci-

tations omitted).

Gaut’s report is, however, evidence that the County—the

other remaining defendant—may have failed, through reck-

less indifference to the safety of persons who find them-

selves in premises subjected to a police search, to teach its

police how to conduct a competent search. It’s true that a

suit under section 1983 is not governed by the common law

doctrine of respondeat superior; liability for a police officer’s

violation of constitutional rights while acting within the

scope of his employment is not automatically imposed on

his employer, in this case Brown County. Monell v. Depart-

ment of Social Services, 436 U.S. 658 (1978); Gernetzke v. Ke-

nosha Unified School District No. 1, 274 F.3d 464, 469 (7th Cir.

2001). But if the violation stems more or less directly from

acts of the employer, as it did in this case if indeed the Coun-

ty prescribed an unconstitutional search protocol for its po-

lice to follow, the employer is liable.

Gaut’s report severely criticizing the County’s search pol-

icy might, if admissible (compare Florek v. Village of Munde-

No. 14-1867 9

lein, 649 F.3d 594, 601–03 (7th Cir. 2011)), entitle the estate to

a trial, were it not for a fatal procedural error by its lawyer:

failing to authenticate Gaut’s expert report. It was filed with

the district court but could not be admitted into evidence

without an affidavit attesting to its truthfulness. Fed. R. Civ.

P. 56(e)(3); Fed. R. Evid. 901(a); Scott v. Edinburg, 346 F.3d

752, 759–60 and n. 7 (7th Cir. 2003). There was no affidavit.

Nor did the plaintiff’s lawyer cite Gaut’s report in opposing

the defendants’ motion for summary judgment. On appeal

he made the convoluted argument that it was the defend-

ants’ burden to depose Gaut and that having failed to do

that they admitted that everything in his report was true.

Not so. Deposing a witness is optional. Anyway the report

could not be used to oppose summary judgment because it

was inadmissible. Without the report there is insufficient ev-

idence to justify imposing liability on the County.

AFFIRMED.