Antoinette Wonsey v. City of Chicago

In the

United States Court of Appeals

For the Seventh Circuit

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No. 19-1171

ANTOINETTE WONSEY,

Plaintiff-Appellant,

v.

CITY OF CHICAGO, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:16-cv-09936 — Sara L. Ellis, Judge.

____________________

ARGUED SEPTEMBER 16, 2019 — DECIDED OCTOBER 15, 2019

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Before BAUER, BRENNAN, and ST. EVE, Circuit Judges.

BRENNAN, Circuit Judge. Antoinette Wonsey’s Chicago

home attracted two types of visitors: tourists and police. The

tourists came for short-term lodging, which Wonsey sublet

through Airbnb. The police first came after an Airbnb guest

reported a theft at Wonsey’s home. Five days later, police

showed up again to help city examiners during a building in-

spection. Claiming these two police encounters amounted to

Fourth Amendment violations, Wonsey sued the City of

2 No. 19-1171

Chicago and several police officers under 42 U.S.C. § 1983.

The district court granted summary judgment to the defend-

ants. On appeal, Wonsey submits a bare explanation of the

police encounters, and she makes no effort to connect them

with a cognizable Fourth Amendment claim. Because Wonsey

fails to show any reason why the district court’s judgment

should be disturbed, we affirm.

I

On June 4, 2016, an Airbnb guest of Wonsey’s reported to

police that his personal belongings, including cash and a lap-

top computer, disappeared after he lost consciousness from a

seizure. Chicago Police Sergeant Antonio Valentin drove to

Wonsey’s house to investigate and arrived at 8:30 a.m. The

front gate to Wonsey’s house was locked, and no one re-

sponded when Valentin rang the doorbell. He then attempted

to open the gate by reaching his arm around and trying to

open it from the inside. When that did not work, Valentin

called the police station and spoke with the theft victim, who

gave Valentin the entry code to unlock the gate.

After opening the gate, Valentin went to the front door,

knocked, and rang the doorbell. Two men opened the door

and, as shown in Wonsey’s home security video footage, al-

lowed Valentin inside. Shortly after, another officer arrived to

assist. The officers saw residents scattered throughout the

first floor who appeared to have been sleeping in the living

room areas. As Valentin discussed the theft victim’s claim

with the residents, Wonsey, who had been asleep until that

point, entered the dining room and joined the conversation.

After Valentin asked Wonsey for permission to see where the

theft victim was staying, Wonsey refused and told the officers

to leave. The officers complied and Wonsey walked them

No. 19-1171 3

outside. Although Valentin felt Wonsey acted “evasive,” he

described his conversation with her as “friendly” and “cor-

dial.” At no point during this encounter did the officers arrest

Wonsey, search her home, or tell her she was not free to leave.

Five days later, on June 9, and prompted by a police re-

quest, the city’s buildings department sent out a team of in-

spectors to Wonsey’s house. They were accompanied by five

police officers. On arrival, the inspectors found Wonsey’s

front gate was locked, so they visually inspected the exterior

of her house where they saw a man sitting on Wonsey’s back

porch. The inspectors explained why they were there, and the

man opened the back gate to let them in. They entered,

walked to the front of the house, and met Wonsey, who will-

ingly allowed the inspectors into her home. Home security

video footage corroborated Wonsey’s grant of permission.

The police officers waited outside during the inspection.

The inspectors recorded 32 code violations and concluded

the house should be immediately evacuated. Including Won-

sey, at least eight occupants were in the house that morning

and the inspection report speculated 12-18 occupants resided

there. Due to “dangerous conditions in the home,” the inspec-

tors asked the police to assist with “emergency evacuations.”

At that point the officers entered the house and stayed in the

common areas. As Wonsey explains it, the officers “sur-

rounded her” in the dining room. Defendants alleged Wonsey

was “irate,” “very ballistic,” “screaming,” and “yelling.” She

denies these characterizations. Wonsey agrees no police of-

ficer placed her in handcuffs or told her she was not free to

leave. She also admits she refused to leave despite being

asked to do so as part of the evacuation order.

4 No. 19-1171

Wonsey sued the city and some of the police officers under

42 U.S.C. § 1983 for the June 4 and June 9 encounters. She

claimed defendants’ actions violated her Fourth Amendment

right to be free from unreasonable searches and seizures. Af-

ter discovery defendants moved for summary judgment. On

Wonsey’s June 4 claims, defendants argued: (1) Valentin had

consent to enter Wonsey’s home to investigate the stolen

property report; and (2) Wonsey presented no evidence of a

Fourth Amendment seizure.1 On the June 9 claims defendants

contended the doctrine of qualified immunity shielded all the

officers’ actions that day. The district court agreed with de-

fendants across the board and granted summary judgment in

their favor. Wonsey appeals that decision.

II

“The purpose of an appeal is to evaluate the reasoning and

result reached by the district court.” Jaworski v. Master Hand

Contractors, Inc., 882 F.3d 686, 690 (7th Cir. 2018). A party ask-

ing this court to reverse a district court’s judgment must “ar-

gue why we should reverse that judgment” and “cite

appropriate authority to support that argument.” United

States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991). That

task starts with the appellant’s brief. See FED. R. APP. P. 28.

Although appellate briefs should embrace brevity,

Wonsey’s initial brief is extraordinarily sparse. Critically, the

“argument” section, which runs only two and a half pages,

does not attempt to show how the district court erred. More

importantly, it never addresses her Fourth Amendment

claims. See, e.g., Sambrano v. Mabus, 663 F.3d 879, 881 (7th Cir.

1Wonsey sued only Valentin for the June 4 encounter. She did not name

Valentin’s backup officer as a defendant.

No. 19-1171 5

2011) (censuring similarly deficient brief). Instead, almost all

the section is poached from a law review article about quali-

fied immunity that Wonsey’s counsel failed to cite. This was

not an instance of less than perfect citation, but rather copying

an academic work without any attribution. Even the article’s

footnotes appear as citations in the body of Wonsey’s brief.

And the real puzzler is that Wonsey does not explain how the

copied article pertains to her case, and she makes no attempt

to apply its reasoning.

This is a highly problematic strategy by Wonsey’s counsel

given that arguments raised for the first time in a reply brief

are waived. United States v. Vitrano, 747 F.3d 922, 925 (7th Cir.

2014); United States v. Alhalabi, 443 F.3d 605, 611 (7th Cir. 2006).

The same goes for arguments not raised until oral argument.

See In re Dorner, 343 F.3d 910, 915 (7th Cir. 2003) (“Lawyers

must get these things straight before the briefing is complete;

otherwise the opposing party and the appellate judges must

traverse the same ground twice.”). Pretermitting whether this

meager effort constitutes forfeiture of Wonsey’s appeal, see

Klein v. O’Brien, 884 F.3d 754, 757 (7th Cir. 2018), we proceed

as best we can on the merits with what little was offered.

III

We review a district court’s grant of a motion for summary

judgment de novo, interpreting all facts and drawing all rea-

sonable inferences in favor of the nonmoving party. Dayton v.

Oakton Cmty. Coll., 907 F.3d 460, 465 (7th Cir. 2018). Because

Wonsey brought her claims under 42 U.S.C § 1983, to survive

summary judgment, she must present sufficient evidence to

create a genuine dispute of material fact that a constitutional

deprivation occurred. Homoky v. Ogden, 816 F.3d 448, 452 (7th

Cir. 2016).

6 No. 19-1171

A

We start with Wonsey’s June 4 unlawful search and sei-

zure claims. The Fourth Amendment generally prohibits the

warrantless entry of a person’s home to perform a search or

seizure. See Brigham City v. Stuart, 547 U.S. 398, 403 (2006)

(“[S]earches and seizures inside a home without a warrant are

presumptively unreasonable.”); Illinois v. Rodriguez, 497 U.S.

177, 181 (1990). But the prohibition does not apply when vol-

untary consent has been obtained, either from the individual

whose property is searched, or from a third party who pos-

sesses common authority over the premises. Rodriguez, 497

U.S. at 181. When a person allows a third party to exercise au-

thority over his property, he assumes the risk that the third

party might permit access to others, including government

agents. United States v. Terry, 915 F.3d 1141, 1145 (7th Cir.

2019) (citations omitted). In a § 1983 case, once the defendant

presents evidence that the plaintiff consented to the search,

the burden shifts to the plaintiff to establish the lack of con-

sent to search. Valance v. Wisel, 110 F.3d 1269, 1279 (7th Cir.

1997).

Here, defendants presented two pieces of evidence show-

ing Wonsey’s guests gave their consent to enter Wonsey’s

house. First, Wonsey’s Airbnb guest gave Valentin the gate

code to enter the front patio and investigate the alleged theft.

Wonsey agrees she gave her gate code to Airbnb guests to use

freely. Second, when Valentin arrived at the front door, he

rang the doorbell, and two men answered. After Valentin

identified himself and explained why he was there, the two

men allowed Valentin inside. Wonsey’s security video shows

this. Because defendants presented evidence of consent, the

No. 19-1171 7

burden shifts back to Wonsey to show Valentin never ob-

tained consent or the consent was invalid.

Wonsey fails to rebut that evidence, let alone address the

issue of consent. Instead, she offers only a conclusion that

“admissible evidence shows a genuine dispute as to a mate-

rial issue of fact.” But Wonsey never cites to the record or any

fact in dispute to support this assertion. She also says a district

court “should not decide … who is lying or telling the

truth … on a motion for summary judgment.” It is true that

“[a] trial, not summary judgment, is the way to determine

who is telling the truth.” Owens v. Chicago Bd. of Educ., 867

F.3d 814, 816 (7th Cir. 2017). But Wonsey does not explain

which witness is “lying,” what fact they are lying about, or

which claims are implicated by the purported lies. Without

evidence to contradict defendants’ proof of consent, Wonsey

cannot show Valentin’s entry constituted an unreasonable

search.2

Wonsey’s unlawful seizure claim also fails. A Fourth

Amendment seizure occurs “when there is a governmental

termination of freedom of movement through means inten-

tionally applied.” Swanigan v. City of Chicago, 881 F.3d 577, 584

(7th Cir. 2018) (quoting Scott v. Harris, 550 U.S. 372, 381

2 Before the district court, Wonsey alleged “Valentin opened the front

gate, walked up to the front door, rang the doorbell, knocked on the win-

dow or door, and entered in the property, all in approximately 19 sec-

onds.” She claimed that was not enough time for Valentin to obtain

consent to enter. After reviewing the security footage, the district court

disagreed and found “there was plenty of time for Valentin to introduce

himself and obtain consent.” At any rate, Wonsey neither raises this argu-

ment on appeal nor submits any argument that the court erred in its find-

ing.

8 No. 19-1171

(2007)). But Wonsey never explains when that moment oc-

curred here. And she agrees the officers left immediately after

she asked them to leave. Given those circumstances, with no

additional facts to indicate that Wonsey did not feel free to go

about her business, there is no genuine issue of material fact

as to whether the officers “seized” Wonsey on June 4.

B

The district court rejected Wonsey’s June 9 search and sei-

zure claims based on qualified immunity. To challenge that

decision, Wonsey’s counsel lifted content from a law review

article which suggests qualified immunity makes govern-

ments less accountable. From that premise, Wonsey boldly

proposes this court should scrap the doctrine of qualified im-

munity. The Supreme Court, however, continues to apply the

doctrine and recently reiterated its “settled principles.” City of

Escondido, Cal. v. Emmons, 139 S. Ct. 500, 503 (2019) (per cu-

riam). Wonsey’s request effectively asks us to ignore the

structure of Article III courts and follow the lead of unnamed

“federal courts scholars.”

We pass on Wonsey’s proposal and follow the Supreme

Court. “Qualified immunity attaches when an official’s con-

duct does not violate clearly established statutory or constitu-

tional rights of which a reasonable person would have

known.” Id. (citations omitted). For a right to be clearly estab-

lished, “existing precedent must have placed the statutory or

constitutional question beyond debate.” Mullenix v. Luna, 136

S. Ct. 305, 308 (2015) (citation omitted). “Put simply, qualified

immunity protects all but the plainly incompetent or those

who knowingly violate the law.” Id. (citation and internal

quotation marks omitted). Under this standard, we “focus[]

on the objective legal reasonableness of an official’s acts.”

No. 19-1171 9

Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982). Thus, defendants

here enjoy qualified immunity “if a reasonable officer could

have believed,” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per

curiam), that the officers’ entry into Wonsey’s home on June

9 was constitutional.

Construing the facts in Wonsey’s favor, see Dayton, 907

F.3d at 465, we assume her version of events on June 9. After

Wonsey allowed the building inspectors into her home, they

recorded 32 code violations and concluded the house was un-

safe for occupancy. Due to those “dangerous conditions,” the

inspectors ordered all occupants to evacuate immediately and

asked police officers onsite to help with the evacuation. The

officers obliged and, according to Wonsey, “surrounded her”

in the dining room and told her to leave the house.3 Wonsey

acknowledges, however, the officers entered her home “due

to safety concerns.” And she does not dispute that police: (1)

relied on the inspectors’ representations that the building was

a danger to its occupants and the public; (2) took the inspec-

tors’ findings seriously; and (3) acted consistent with the in-

tent to carry out the evacuation order. Likewise, she does not

allege police searched any part of her home during the evac-

uation.

Because Wonsey does not tell us which facts she believes

amounted to Fourth Amendment violations, we can only pre-

sume the officers’ entry to help with the evacuation prompts

her illegal search claim, and “surrounding her” prompts her

illegal seizure claim. In any event, those claims fail. Wonsey

does not dispute police entered her house at the request of

3We also assume Wonsey was not “irate,” “ballistic,” “screaming” and

“yelling” at defendants, which defendants allege and she denies.

10 No. 19-1171

inspectors, who were lawfully present, to help with an evac-

uation given an immediate safety concern. Under those

circumstances, a reasonable officer could have believed that

entry was lawful. Wonsey offers no contrary argument, and

she does not point to any violation of statutory or constitu-

tional rights, much less clearly established ones. So qualified

immunity cloaks defendants’ actions on June 9.

One final issue warrants discussion. Circuit Rule 30(a) re-

quires an appellant to include, “bound with the main brief, an

appendix containing the judgment or order under review and

any opinion, memorandum of decision” or other equivalent

statement of reasons. Rule 30(d) requires counsel to certify

compliance with Rule 30(a). Wonsey’s counsel included a

Rule 30(d) certificate, but failed to include a copy of the

district court’s judgment (although counsel did include a

copy of the district court’s opinion). Under FED. R. CIV. P. 58,

the judgment is distinct from the opinion, see Klein, 884 F.3d

at 757, and for the Rule 30(d) certificate to be true, the judg-

ment must have been included. This court does not take coun-

sel’s omission and misrepresentation lightly. See United States

v. Boliaux, 915 F.3d 493, 497 (7th Cir. 2019) (requiring counsel

to show cause why he should not be fined $1,600, and repri-

manded for his false statement under Circuit Rule 30(d));

United States v. Patridge, 507 F.3d 1092, 1096 (7th Cir. 2007)

(“This court regularly fines lawyers who violate Circuit Rule

30 yet falsely certify compliance under Circuit Rule 30(d).”).

Counsel is strongly admonished to observe all court rules in

the future.

IV

Wonsey’s arguments on appeal are best summed up as

unsupported, careless, and irrelevant. Above all, they fail to

No. 19-1171 11

show an issue of material fact to preclude summary judg-

ment. For these reasons, we AFFIRM.