Robert Taylor v. Ricky Hughes

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 20-2377

ROBERT A. TAYLOR,

Plaintiff-Appellant,

v.

RICKY A. HUGHES, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:13-cv-04597 — Manish S. Shah, Judge.

____________________

ARGUED NOVEMBER 1, 2021 — DECIDED FEBRUARY 16, 2022

____________________

Before HAMILTON, SCUDDER, and ST. EVE, Circuit Judges.

SCUDDER, Circuit Judge. Police officers owe judges candor

when seeking search warrants. This case presents a troubling

example of an officer violating that duty. Acting on the tip of a

John Doe informant, Chicago police officer Ricky Hughes se-

cured a warrant to search Robert Taylor’s apartment for a gun.

The informant knew where Taylor lived, but not his address.

And Hughes did not take steps to learn it. He instead took a

guess, and that guess was wrong. A months-long ordeal

2 No. 20-2377

followed, which included Taylor spending 128 days in jail. He

eventually sued Hughes and other CPD officers for violating

his constitutional rights. The district court granted summary

judgment for all defendants, but we see some aspects of this

case differently, especially those relating to Officer Hughes’s

misconduct in obtaining the search warrant. So we affirm

parts of the district court’s ruling and reverse others.

I

A

In June 2011, the Chicago Police Department was wrap-

ping up an investigation—codename Uptown Girl—into

drug activity on the city’s north side. Detective Joshua Weit-

zman led the investigation. Officer Ricky Hughes was on the

narcotics team assisting with the case. On June 21, Weitzman

told Hughes that he had learned from a John Doe informant

that Robert Taylor, an alleged member of a north-side drug

gang, had a gun in an apartment on the south side.

Later that same day, Officer Hughes met with John Doe at

the precinct. At the time of the meeting, Hughes says he knew

Doe’s real name and reviewed his criminal record. But today,

so far as the record reveals, John Doe is a complete unknown:

no one knows John Doe’s real name, how to contact him, or,

for that matter, why he came forward with information con-

cerning Robert Taylor during the Uptown Girl investigation.

Nor is there paperwork to help, as Hughes shredded any

notes he took while meeting with Doe.

As Officer Hughes remembers things, John Doe told him

that two days earlier, on June 19, he was visiting Taylor’s

apartment when Taylor showed him a black .38 revolver.

Hughes found Doe’s account credible. Doe told Hughes that

No. 20-2377 3

he did not know Taylor’s address, but he did know how to

get there. So the two drove down to the south side, and Doe

directed Hughes to an apartment building. The building Doe

identified was 643–645 W. 62nd Street, an L-shaped apart-

ment complex on the south side of the street. The numbers

“643–45” appeared under a window on the building’s street-

facing side. Doe told Officer Hughes that the unit immedi-

ately above those numbers was Taylor’s.

The building itself has two entrances along its right-hand

side (one to 643 and one to 645), and according to Doe, Tay-

lor’s unit could be accessed through the door closest to the

street. Doe also told Hughes how to get to Taylor’s unit once

inside the building—up the stairs one flight, then down the

hall to the first door on the left.

B

Armed with this information, Officer Hughes prepared an

application requesting permission to search Taylor’s apart-

ment. Hughes’s accompanying affidavit identified Taylor’s

apartment as “645 W. 62nd Street #1S.” When asked how he

determined this was Taylor’s address, Hughes testified: “I de-

cided that it was 645 1S.” But how he decided he could not

explain. Hughes also testified that he used building number

645 (rather than 643) because the window Doe pointed out

was closer to the “45” on the front of the building. And as for

the unit number, Hughes testified that the “S” might have

stood for “South,” or “Side,” or perhaps just the letter “S” in

an alphabetical list—he was unable to say for sure. Nor did

Hughes take any step to corroborate Taylor’s address.

Hughes testified that he “didn’t have no time” to do so. In the

end, then, Hughes took a guess, listing the address as 645 W.

62nd Street #1S in the search warrant application.

4 No. 20-2377

The application stated that Robert Taylor had showed

John Doe a black .38 revolver inside apartment #1S at 645

W. 62nd Street, that John Doe had seen the gun before, and

that Robert Taylor was a felon. The proposed warrant, in

turn, sought permission to search “645 W. 62nd Street #1S, a

multi-unit building,” and to seize evidence of the offense of

Unlawful Use of Weapon under Illinois law, 720 ILCS 5/24-1,

specifically:

Unlawful use of weapon and any documents showing

residency, any paraphernalia used in the weighing,

cutting or mixing of illegal drugs. Any money, any rec-

ords detailing illegal drug transactions.

The warrant’s references to illegal drugs were not based

on anything Doe told Officer Hughes. Instead, Hughes later

acknowledged that the drug reference was stock language

he left in place because “[u]sing drugs and guns go hand

[in] hand.”

Officer Hughes presented the warrant application to a

Cook County Judge on the evening of June 21. Because the

meeting took place after business hours, Hughes arranged for

the judge to meet him inside his covert vehicle in a predeter-

mined location. From what we can tell Officer Hughes took

with him the warrant paperwork, a copy of John Doe’s crimi-

nal history, and Doe himself. Officer Hughes later testified

that he did not give the judge any explanation for the war-

rant’s reference to drug paraphernalia, did not tell the judge

that he did not know if the address listed on the warrant was

accurate, and did not explain that Doe had provided direc-

tions that the officers could follow to Taylor’s apartment. The

judge found Officer Hughes’s showing sufficient and signed

No. 20-2377 5

the warrant, authorizing a search of apartment #1S at 645 W.

62nd Street.

C

Early the next morning, Officer Hughes met with the

search team and told his colleagues to “follow [him]” to the

target apartment. Hughes intended to use the directions John

Doe had given him to lead the team to Taylor’s unit. And that

is what happened. At around 6:00 a.m. on June 22, 2011,

Hughes used a battering ram to break down the door of the

apartment Doe identified. The apartment the officers entered

was in fact Robert Taylor’s apartment. But it was not the apart-

ment listed on the warrant: it was not #1S at 645 W. 62nd

Street, but instead was #1N at 643 W. 62nd Street.

The police did not find Robert Taylor there. But in one of

the unit’s two bedrooms they did find proof that they were

indeed inside Taylor’s apartment—an employee ID and mail

addressed in his name. It was from this mail that the officers

learned the actual address of Taylor’s unit. This first bedroom

contained little else of note, however.

The second bedroom was a different story. There the offic-

ers found two adults—a man named Mario Barnes and a

woman, Barbara Taylor, who would turn out to be Robert

Taylor’s niece—and three kids. Also inside this room was an

open safe with a loaded blue steel semiautomatic pistol—a

different gun than the black .38 described by John Doe. Officer

Hughes testified that Barnes insisted “it wasn’t his gun,”

but could not recall if Barnes said that it was Taylor’s. But

Barnes reportedly did tell Hughes that Taylor was known to

carry guns.

6 No. 20-2377

The officers found no evidence directly connecting Robert

Taylor to this second bedroom. According to Officer Hughes,

however, Barnes’s statement, along with the fact that “the rea-

son why I was there [was] for a search warrant for a gun,”

allowed him to determine that the blue gun found inside the

open safe belonged to Taylor.

D

Based on this determination, Officer Hughes requested

what CPD calls an investigative alert for Taylor’s arrest on

probable cause that he was a felon in possession of a firearm.

CPD’s Investigative Alert Application System, memorialized

in CPD Special Order S04-16, is like a more permanent police

bulletin, allowing officers to create two types of alerts: “Prob-

able Cause to Arrest” and “No Probable Cause to Arrest.” As

its name suggests, an alert with probable cause authorizes any

officer who encounters that individual to make an arrest. In-

vestigative alerts do not expire within the system. Police pol-

icy instead instructs officers to regularly check and update the

database “to ensure investigative alert requests on file are

canceled when the subject of the alert has been apprehended

or the investigative alert is no longer needed.”

Detective Weitzman processed Officer Hughes’s alert re-

quest. As Weitzman later explained, Robert Taylor was “a

convicted felon, he was named in a search warrant, and they

recovered a gun,” and that added to probable cause. So he is-

sued the alert.

After learning of the search, Taylor turned himself in at

the police station on June 28. After police took Taylor into cus-

tody, Officer Hughes prepared a criminal complaint charging

No. 20-2377 7

him with unlawful possession of the blue gun recovered from

his apartment, in violation of 720 ILCS 5/24-1.

Taylor then spent over four months in the Cook County

Jail awaiting trial. No trial ever ensued, though. In November

2011, the Circuit Court of Cook County found the search war-

rant invalid based on the address error, quashed his arrest,

suppressed evidence of the weapon, and expressly acquitted

Taylor of the gun charge.

E

But that was not the end of the matter. Despite Taylor’s

acquittal, the alert for his arrest remained active within CPD’s

system. A month later, on December 23, 2011, a CPD officer

pulled over a car in which Taylor was riding. When the officer

ran Taylor’s name, the alert appeared, leading to Taylor once

again being arrested—on the exact same charge on which he

had been acquitted a month prior. The arresting officer con-

tacted Detective Weitzman, who realized the mistake and

quickly saw to it that Taylor be released. Even then, though,

the alert for Taylor’s arrest remained active for another

month. At last, on January 31, 2012 Detective David Betz can-

celed the alert, bringing this mess of events to a close.

II

In 2013, Taylor invoked 42 U.S.C. § 1983 and brought this

suit against the various CPD officers involved in the apart-

ment search and his subsequent arrests and against the City

of Chicago itself. He alleged numerous violations of his con-

stitutional rights.

The district court, over the course of three separate opin-

ions, granted summary judgment to all defendants on all

counts. It suffices for now to overview Taylor’s claims, as our

8 No. 20-2377

ensuing analysis of each claim addresses the district court’s

reasons for entering judgment for the defendants.

A

The first seven counts of Taylor’s complaint allege consti-

tutional violations by Officer Hughes, Detective Weitzman,

and eight other CPD officers present for the search: Kevin

Johnson, Russell White, Kenneth Yakes, Shawn Pickett, Rich-

ard Peck, Thomas Lieber, Scott McWilliams, and Yolanda Col-

lier. Taylor’s claims against these officers fall into three buck-

ets: the procurement of the search warrant, the execution of

the warrant, and the false arrest of Taylor on both June 28 and

December 23, 2011.

Count I named all individual defendants (except Detective

Weitzman), but it focused on Officer Hughes. Hughes, the

complaint alleged, procured the search warrant through mis-

representation by recklessly relying on John Doe’s unreliable

testimony and by failing to inform the issuing judge that he

had not corroborated Taylor’s address.

Counts II and III alleged unlawful entry and search by Of-

ficer Hughes and the rest of the search team on the basis that

the warrant lacked probable cause and misstated Taylor’s ad-

dress, violating the Fourth Amendment’s particularity re-

quirement.

Counts IV, V, and VII alleged false arrest against all indi-

vidual defendants—the former two counts relating to the

June 2011 arrest, the latter relating to the December rearrest.

Both arrests, Taylor alleged, were unsupported by proba-

ble cause.

No. 20-2377 9

Finally, Count VI alleged supervisory liability against Ser-

geant Kevin Johnson, the search team supervisor, for the con-

stitutional violations relating to the search and the June arrest.

B

That leaves Count VIII, Taylor’s claims against the City of

Chicago. Taylor alleged that two of its policies—the investi-

gative alerts policy and the policy permitting officers to ob-

tain search warrants in reliance on the testimony of John Doe

informants—were unconstitutional. See Monell v. Dep’t of Soc.

Servs., 436 U.S. 658 (1978).

First, Taylor alleged that CPD’s policy permitting the use

of John Doe informants in the procurement of search warrants

failed to include sufficient safeguards to ensure the credibility

of such anonymous tipsters. In Taylor’s view, the City was

deliberately indifferent to a widespread police practice of

abusing this policy by using unreliable informants to secure

warrants not based on probable cause.

Next, Taylor claimed that the investigative alerts policy

was unconstitutional on its face and that gaps in the policy

created an implicit policy permitting arrests without probable

cause. Taylor alleged the City designed the policy to circum-

vent the Fourth Amendment’s warrant requirement by per-

mitting officers to make arrests without a judicial determina-

tion of probable cause. And even if the policy is constitutional

as written, Taylor submitted, the City failed to enforce its own

auditing requirement, leading inevitably to false arrests like

the one in this case.

* * *

With summary judgment entered against him on all

claims, Taylor appealed.

10 No. 20-2377

III

A

We start where this all started—with the search warrant.

Taylor says the district court erred in concluding that Officer

Hughes had not procured the warrant by misrepresentation.

We agree with Taylor.

False statements in warrant applications are serious busi-

ness. In Franks v. Delaware, the Supreme Court held that a war-

rant is invalid if the required finding of probable cause is

premised on an officer’s “false statement [made] knowingly

and intentionally, or with reckless disregard for the truth.”

438 U.S. 154, 155 (1978). Warrants procured in violation of

Franks are void, and their fruits suppressed in criminal pro-

ceedings. See id. at 156. And officers who violate Franks face

liability for money damages under § 1983. See Supreme Video,

Inc. v. Schauz, 15 F.3d 1435, 1441 (7th Cir. 1994) (citing Olson

v. Tyler, 771 F.2d 277, 281 & nn.5–6 (7th Cir. 1985)). To earn a

trial on such a claim, a § 1983 plaintiff must bring forth

enough evidence to permit a reasonable jury to conclude that

the defendant officer made intentional or reckless misrepre-

sentations of fact that were necessary to the finding of proba-

ble cause. See Perlman v. City of Chicago, 801 F.2d 262, 264–65

(7th Cir. 1986).

In entering judgment against Taylor, the district court fo-

cused its analysis on whether Officer Hughes’s reliance on the

John Doe informant constituted reckless disregard for the

truth. The district court answered no, and we see no error in

that conclusion.

John Doe identified Taylor in a photo array, directed Of-

ficer Hughes to Taylor’s apartment, and appeared under oath

No. 20-2377 11

before the Cook County judge who issued the warrant. In

these circumstances, Doe’s testimony sufficed to create prob-

able cause to search under our decisions in Edwards v. Jolliff-

Blake, 907 F.3d 1052, 1056–58 (7th Cir. 2018), and United States

v. Dismuke, 593 F.3d 582, 587–88 (7th Cir. 2010), abrogated on

other grounds, as recognized in United States v. Miller, 721

F.3d 435, 438–39 (7th Cir. 2013). And unlike the officer in

United States v. Glover, Hughes did not hide from the issuing

judge any known material facts adverse to Doe’s credibility.

755 F.3d 811, 817 (7th Cir. 2014).

To be sure, Officer Hughes did not vet the John Doe as

carefully as he could have. Time and again we have empha-

sized that “information about [an] informant’s credibility or

potential bias is crucial,” id. at 816, and we are troubled by the

eagerness with which Hughes appeared willing to accept

John Doe’s story as true. See Jacobs v. City of Chicago, 215 F.3d

758, 768 & n.4 (“[O]fficers seeking a search warrant relying on

information provided by a confidential informant are under

an obligation to take reasonable steps to confirm that infor-

mation before using it in an affidavit in support of the war-

rant.”). From what we can discern from the summary judg-

ment record, Hughes does not seem to have asked Doe how

he knew Robert Taylor or why he chose to come forward with

information, and so did nothing to ensure that Doe’s tip was

not one “provided to harass or remove a rival.” Id. (citing

United States v. Bell, 585 F.3d 1045, 1050 (7th Cir. 2009)).

Still, while we reaffirm that officers must take care to as-

sure themselves of the reliability of their informants, we con-

clude that any half-measures Officer Hughes took with re-

spect to the John Doe here did not rise to the level of a reckless

disregard for the truth.

12 No. 20-2377

The same cannot be said of what else Officer Hughes told

the issuing judge. In our review of the summary judgment

record, two aspects of Hughes’s conduct jumped off the page.

First, in the warrant affidavit he submitted to the judge, Of-

ficer Hughes listed Robert Taylor’s address six separate times

as “645 W. 62nd Street #1S.” But neither the warrant applica-

tion nor Hughes himself made any mention of the fact that he

did nothing to corroborate this information and instead had

merely “decided that it was 645 1S.”

The district court characterized this decision as “sug-

gest[ing] a lack of diligence on [Officer Hughes’s] part.” What

happened here is worse than that. We see the record as estab-

lishing, at a minimum, reckless misconduct by Officer

Hughes. And that misconduct resulted in a serious misstate-

ment—a misrepresentation that the apartment to search was

#1S at 645 W. 62nd Street. By Officer Hughes’s own admis-

sion, that was false. Officer Hughes guessed at the apartment

number and did so because, in his view, confirming Taylor’s

actual address—say, by running Taylor’s name through po-

lice or city databases, looking for his name on the building’s

mailboxes, or contacting the landlord—would take too long.

We are skeptical. Officer Hughes has pointed to no exi-

gency that would have prevented him from undertaking the

sort of routine policework contemplated by the Fourth

Amendment’s particularity requirement. It is not too much to

ask that a police officer seeking judicial authorization to

search someone’s home take steps to confirm the right ad-

dress. By its very terms, the Fourth Amendment confers a

“right of the people to be secure” not only in their “persons,”

“papers,” and “effects,” but also in their “houses.” U.S. Const.

amend. IV. The U.S. Reports are full of cases underscoring the

No. 20-2377 13

sanctity of the home. See, e.g., Payton v. New York, 445 U.S. 573,

585 (1980) (“The physical entry of the home is the chief evil

against which the wording of the Fourth Amendment is di-

rected.”) (cleaned up). Guessing at an address to get a search

warrant is intolerable, and that is unfortunately what Officer

Hughes did here.

We are similarly troubled by another aspect of Officer

Hughes’s warrant application: its language authorizing a

search for “any paraphernalia used in the weighing, cutting

or mixing of illegal drugs,” and “[a]ny money, any records

detailing illegal drug transactions.” These statements, too,

were unsupported by probable cause. Hughes’s affidavit was

silent on the presence of drugs, and when asked if the John

Doe informant told him anything about drugs at Taylor’s res-

idence, Hughes testified that “he did not.” Nor did either Doe

or Hughes “tell [the judge] about any drugs.” The only sup-

port for a search for drugs was Officer Hughes’s instinct that

“drugs and guns go hand [in] hand,” which again he did not

mention to the issuing judge. This is nothing but “a mere

hunch,” which does not give rise even to reasonable suspi-

cion, let alone probable cause. Kansas v. Glover, 140 S. Ct. 1183,

1187 (2020) (cleaned up).

Under these circumstances, nothing Officer Hughes told

the issuing judge could have “provide[d] [him] with a sub-

stantial basis for determining the existence of probable cause”

to believe drugs would be found in Taylor’s apartment. Illi-

nois v. Gates, 462 U.S. 213, 239 (1983). As to this portion of the

warrant, the judge’s signature was “a mere ratification of

[Hughes’s] bare conclusions” that drugs and guns go hand in

hand. Id. Such rubber-stamping, the Supreme Court has un-

derscored, amounts to “an abdication of the magistrate’s

14 No. 20-2377

duty.” Id. The warrant should have never issued—the same

conclusion the Circuit Court of Cook County reached in dis-

missing the gun charge against Taylor.

What is equally clear is that all of this could easily have

been avoided. The stock references to drug paraphernalia

should have been omitted from the warrant application. And

Officer Hughes knew exactly where Taylor lived based on the

John Doe’s instructions. He should have included that infor-

mation in the warrant affidavit. We have explained that the

executing officer’s personal knowledge of the place to be

searched may be relevant to the question whether the warrant

is sufficiently particularized, but only if that information was

communicated to the issuing judge. See United States v. Jones,

54 F.3d 1285, 1292 (7th Cir. 1995). Instead of availing himself

of this option for describing the location of Taylor’s apart-

ment, Officer Hughes chose to say nothing, and to present the

judge with a warrant to seize items for which no probable

cause existed from an address plucked from a hat.

That decision leads us to conclude that Officer Hughes, at

the very least, made reckless misrepresentations of fact in pro-

curing the warrant, the first element of a successful Franks

claim. And from there the second element—that these misrep-

resentations were necessary to the finding of probable

cause—is academic. “Probable cause exists,” we have ex-

plained, when “a reasonably prudent person would believe

that contraband or evidence of a crime will be found in the

place to be searched.” United States v. Richards, 719 F.3d 746, 754

(7th Cir. 2013) (cleaned up) (emphasis added). The building

at 643–45 W. 62nd Street has four units on each floor. If the

issuing judge had known that the warrant before him had

only a one-in-four chance of listing the correct address, he

No. 20-2377 15

surely would not have signed it. At that point, Officer Hughes

might have revealed the additional information Doe had

given him about where Taylor lived, and perhaps the warrant

would have been rewritten to encompass those more specific

directions. But that did not happen.

Taking our own careful look at the summary judgment

record, we are left with an unmistakable reality. Officer

Hughes told the Cook County judge that he knew Taylor’s

address when in fact he did not. And he told the judge that

there was probable cause to believe drugs would be found in

the apartment when in fact there was not. These misrepresen-

tations are at the heart of this case. We would not be here

without them. And these misrepresentations constitute an

open-and-shut violation of Franks.

The record is clear on these points, with no lingering ma-

terial questions for a jury to decide. We therefore reverse the

district court’s grant of summary judgment for Officer

Hughes on Count I and direct entry of summary judgment for

Taylor. The only item left for trial is the question of damages.

B

This brings us to the search itself. Taylor argues that the

district court erred by granting Officer Hughes qualified im-

munity on the basis that he executed the search of Taylor’s

apartment in good faith reliance on the warrant. Again we

agree with Taylor.

An officer who executes a search in reliance on a subse-

quently invalidated warrant may be liable under § 1983 only

if the warrant application was “so lacking in indicia of proba-

ble cause as to render official belief in its existence unreason-

able.” Malley v. Briggs, 475 U.S. 335, 345 (1986). This is “the

16 No. 20-2377

same standard of objective reasonableness” that defines the

good-faith exception to the exclusionary rule in the criminal

context. Id. at 344 (citing United States v. Leon, 468 U.S. 897

(1984)). Under this rule, an officer will be personally liable

only if (1) another case clearly establishes that a similar affi-

davit did not give rise to probable cause or (2) “the affidavit

is so plainly deficient that any reasonably well-trained officer

‘would have known that his affidavit failed to establish prob-

able cause and that he should not have applied for the war-

rant.’” United States v. Koerth, 312 F.3d 862, 869 (7th Cir. 2002)

(quoting Malley, 475 U.S. at 345).

The district court agreed with Taylor that, because the

warrant listed an incorrect address, it was invalid for lack of

particularity. This is beyond dispute: the warrant particularly

described an apartment—just not Robert Taylor’s. Put another

way, no officer without Officer Hughes’s outside knowledge

could read the warrant and “with reasonable effort ascertain

and identify the place intended,” because the warrant simply

did not list the actual and intended target of the search. United

States v. McMillian, 786 F.3d 630, 639 (7th Cir. 2015). Even so,

the district court determined that Officer Hughes was entitled

to qualified immunity for executing the search because he

“had a good faith-belief in the warrant’s validity.” In the dis-

trict court’s view, “Hughes (and the other searching officers)

reasonably believed they had secured a valid warrant for Tay-

lor’s apartment, and that is where they searched.”

Our holding that Officer Hughes procured the warrant

through misrepresentation compels a different result. The

rule in Franks is clearly established: an officer may not procure

a search warrant by making a knowing or reckless misrepre-

sentation of material fact. See 438 U.S. at 155. And so we have

No. 20-2377 17

held that “in cases in which suppression would be warranted

[under Franks] because an officer was dishonest or reckless in

preparing a warrant affidavit, that officer would not enjoy

good faith immunity for civil damages.” Olson, 771 F.2d at

282; see also, e.g., Velardi v. Walsh, 40 F.3d 569, 573 (2d Cir.

1994) (“Where an officer knows, or has reason to know, that

he has materially misled a magistrate on the basis for a find-

ing of probable cause, … the shield of qualified immunity is

lost.”) (citations omitted).

This parallelism between suppression in the criminal con-

text and liability in the civil context makes sound sense here.

An officer who procures a warrant in violation of Franks can-

not conduct a search in good faith reliance on the validity of

that warrant: inherent in a Franks violation is a finding that

the officer knows—or at least reasonably should know—that

the warrant is not valid. Here, Officer Hughes violated Franks

by guessing at Taylor’s address. As such, he reasonably

should have known that the warrant was invalid for failure to

“particularly describ[e] the place to be searched.” U.S. Const.

amend. IV.

Under these circumstances, it is no stretch to say that “the

affidavit [was] so plainly deficient” that Officer Hughes

“should not have applied for the warrant.” Koerth, 312 F.3d at

869 (citations omitted). He is therefore not entitled to quali-

fied immunity for the search on the basis of his good-faith re-

liance on the warrant. See Malley, 475 U.S. at 344 (observ-

ing that it would be “incongruous” to suppress evidence

where reliance on a warrant is objectively unreasonable

“while exempting police conduct in applying for an arrest or

search warrant from any scrutiny whatsoever in a § 1983

damages action”).

18 No. 20-2377

Officer Hughes suggests an alternative path to affirmance,

relying on our decision in Muhammad v. Pearson, 900 F.3d 898

(7th Cir. 2018). In Muhammad, officers procured a valid war-

rant for “Apartment 1,” but at the scene they found two apart-

ments—1A and 1B. Id. at 901. We approved the officers’ deci-

sion to search 1A because “the omission of ‘A’ from the war-

rant was a clerical omission” and the executing officer “used

his knowledge of the case, including information from his

source, to search the correct apartment.” Id. at 906. The rule

coming out of Muhammad is that, in some cases, “officers exe-

cuting a search warrant can rely on what they know and see

independent of the documents to make sure they search the

correct premises, at least where the circumstances show there

is no reasonable chance that the officers will search the wrong

location.” Id. at 905.

Officer Hughes contends that Muhammad controls here.

His position is straightforward: while the warrant signed by

the Cook County judge listed the wrong address for Robert

Taylor, Hughes used the information provided by John Doe

to lead the search team to the correct apartment within the

larger complex. The district court saw this fact as militating in

favor of immunity: “Hughes mitigated the risk that the wrong

location would be searched by participating in the search and

directing the team to the correct location.” Hughes goes one

step further, arguing that, under Muhammad, his reliance on

John Doe’s directions to reach Taylor’s apartment rendered

the search reasonable and precludes liability.

Not so in our view. In Muhammad, the officer had corrob-

orated many times over that 1A was the correct unit, and the

officers had some of those confirmatory materials with them

when they executed the search. Id. at 902–03. There was no

No. 20-2377 19

question in Muhammad that the officers acted in good faith—

the case is really just about a typo. To our eye, this good-faith

context is crucial to a proper understanding of Muhammad.

The bottom line there was not that the search was reasonable,

but only that the executing officer acted in good faith and was

entitled to qualified immunity: no case clearly established

that he “could not proceed to search the apartment that he

knew, beyond reasonable dispute, was the intended target.”

Id. at 907. In Muhammad, both the affiant officer and the issu-

ing judge intended the same target: Apartment 1A. See id. at

904. And so we granted qualified immunity because there

was “no reasonable chance that the officers [would] search the

wrong location, meaning a location other than the one the issuing

magistrate authorized.” Id. at 905 (emphasis added).

This case is far different. Officer Hughes and the issuing

judge may both have said the search’s target was #1S at 645 W.

62nd Street, but they meant different things by it. For Hughes,

the number was just a placeholder: he wanted to search Tay-

lor’s apartment, whatever number it ended up being. But the

Cook County judge approved a search only of #1S at 645 W.

62nd Street. What was present in Muhammad, then, was miss-

ing here—“no reasonable chance that the officers [would]

search … a location other than the one the issuing magistrate

authorized.” Id. at 905. In fact, because there were four units

on the floor and because the search team was following

Hughes’s instructions, there was a 75% chance the officers

would search the “wrong” location from the judge’s perspec-

tive—any unit other than 645 #1S.

That Officer Hughes was present to lead the search team

to the correct apartment does not change the analysis. Hughes

is entitled to good-faith immunity only if he could have

20 No. 20-2377

“reasonably believed that the search [he] conducted was au-

thorized by a valid warrant.” Massachusetts v. Sheppard, 468 U.S.

981, 988 (1984) (emphasis added). He could not have done so.

We therefore reverse the grant of summary judgment for Of-

ficer Hughes on Counts II and III, enter summary judgment

for Taylor, and remand for a determination of damages.

C

Onto the first of Taylor’s two false arrest claims. The dis-

trict court determined that the officers had probable cause to

believe that Taylor possessed both the black .38 revolver iden-

tified by the John Doe informant and the blue pistol found in

the apartment’s second bedroom. In the alternative, the dis-

trict court found that the officers were entitled to qualified im-

munity on the basis that there was arguable probable cause to

arrest Taylor. We agree with the alternative conclusion and

affirm on that basis alone.

Start with the black .38 revolver. By the district court’s rea-

soning, because of the nature of the felon-in-possession crime,

the “same probable cause to believe Taylor possessed evi-

dence of a crime was probable cause to believe Taylor com-

mitted” the crime itself. Since probable cause to arrest on any

basis precludes a false arrest claim, see Holmes v. Vill. of Hoff-

man Ests., 511 F.3d 673, 682 (7th Cir. 2007), the district court

concluded that Taylor’s claim must fail on this basis.

This reasoning may have supported an arrest before the

search. But we do not need to resolve that question. The fact

remains that Taylor was not arrested until after the officers

had searched his apartment. Probable cause to search was

based on John Doe’s testimony that Taylor had a black .38 cal-

iber pistol in that apartment. But remember that the search

No. 20-2377 21

turned up no such gun, so on this point John Doe’s infor-

mation did not pan out and could not supply probable cause

to arrest. See United States v. Haldorson, 941 F.3d 284, 292 (7th

Cir. 2019) (“There could be circumstances in which the subse-

quent investigation turns up new facts or evidence that dis-

prove or discredit the original information.”).

The harder question involves the blue gun found during

the search—the gun the officers actually relied upon in arrest-

ing and then charging Taylor with possession. Officers found

the blue gun in an open safe in the apartment’s second bed-

room, alongside Mario Barnes, Barbara Taylor, and Barnes’s

three children. The district court determined that there was

probable cause to believe that Taylor had “constructive pos-

session” of this weapon as the term is defined under Illinois

law, and that in any event the question of probable cause was

at least arguable, entitling the officers to qualified immunity.

Constructive possession in Illinois requires “(1) that de-

fendant had knowledge of the presence of the weapon; and

(2) that defendant exercised immediate and exclusive control

over the area when the weapon was found.” People v. Ross, 947

N.E.2d 776, 781 (Ill. App. Ct. 2011). Illinois courts have given

these elements broad definition, with some cases indicating

that mere “[h]abitation in or rental of the premises where

[contraband is] discovered is sufficient evidence of control to

constitute constructive possession,” People v. Cunningham, 723

N.E.2d 778, 782 (Ill. Ct. App. 1999), and underscoring that the

“fact that others had access to the premises does not defeat

constructive possession.” People v. Hill, 977 N.E.2d 166, 180

(Ill. Ct. App. 2012).

We are not confident that the facts before us—proof that

Taylor resided in one room with a blue gun found in another

22 No. 20-2377

room—sufficed to create probable cause. We could locate no

Illinois case finding constructive possession where, as here,

the defendant was not present during the seizure and there

was no evidence linking the defendant to the location in

which contraband was found—here, the second bedroom.

See, e.g., Cunningham, 723 N.E.2d at 781–82 (finding construc-

tive possession where the defendant was not present but

drugs were found in a locked room accessible with a key

taken from the defendant); People v. Givens, 934 N.E.2d 470,

485 (Ill. 2010) (finding constructive possession where cocaine

was discovered on a nightstand next to the bed in which de-

fendant was asleep with her fiancé); People v. Ross, 947 N.E.2d

776, 781 (Ill. Ct. App. 2011) (finding constructive possession

where “only defendant was in possession of the vehicle when

the handgun was found”).

Indeed, some Illinois cases seem to indicate that probable

cause would likely not exist on these facts. See People v. Alicea,

999 N.E.2d 392, 394, 398–99 (Ill. Ct. App. 2013) (finding no

constructive possession where weapons were found in a

room with one piece of recent mail addressed to the defend-

ant, and the only person present during the search was the

defendant’s adult son); People v. Maldonado, 35 N.E.3d 1218,

1223–26 (Ill. Ct. App. 2015) (relying on Alicea to find no con-

structive possession based on the presence of mail addressed

to the defendant when the defendant was not present during

the search); People v. Kissinger, 325 N.E.2d 28, 29–31 (Ill. Ct.

App. 1975) (finding constructive possession only as to drugs

found in common areas of a multi-person residence, and not

as to drugs discovered in the yard or in an upstairs bedroom

occupied by another adult).

No. 20-2377 23

These latter cases, however, each confronted the question

whether constructive possession had been proven beyond a

reasonable doubt. But probable cause is a lower bar. Regard-

less, the second set of cases casts doubt on the district court’s

affirmative finding that the officers here had probable cause

to arrest Robert Taylor for possessing the blue gun found in

the second bedroom, the room where Mario Barnes was pre-

sent. So too, it must be said, does Officer Hughes’s own dep-

osition testimony. When asked why he did not arrest Barnes,

himself a felon, for possessing the blue gun, Hughes testified

that he “never saw him in possession of a weapon.” It is un-

clear how Officer Hughes could have believed that Taylor

constructively possessed the blue gun but that Barnes did not.

And Hughes’s explanation does not help things. Asked why

he believed the blue gun was Taylor’s, Hughes responded

only that Taylor “was known to carry weapons” and that “the

reason why I was there [was] for a search warrant for a gun.”

We find these statements—each of which again reflect indif-

ference to the demands of the Fourth Amendment on Officer

Hughes’s part—alarming.

In the end, though, the district court was right to approach

the probable cause inquiry in strictly objective terms. And as

an objective matter, weighing the scant evidence in this case

against the unsettled caselaw, we are not comfortable decid-

ing whether probable cause existed under Illinois law to ar-

rest Robert Taylor for possessing the blue weapon. See Pear-

son v. Callahan, 555 U.S. 223, 236 (2009).

Instead, we resolve this question on narrower grounds.

An officer who makes an arrest is entitled to qualified immun-

ity if “a reasonable officer could have believed [the] arrest to

be lawful, in light of clearly established law and the

24 No. 20-2377

information the arresting officers possessed.” Hunter v. Bry-

ant, 502 U.S. 224, 227 (1991) (cleaned up); see also Humphrey v.

Staszak, 148 F.3d 719, 725 (7th Cir. 1998). Given the broad lan-

guage employed by some Illinois cases and the lack of a con-

trary case directly on point, we conclude that qualified im-

munity precludes liability for Officer Hughes and Detective

Weitzman on Taylor’s first false arrest claim.

We affirm the district court’s entry of summary judgment

on Counts IV and V.

D

Taylor’s second false arrest claim stems from the Decem-

ber 2011 arrest. Recall that Taylor was acquitted of his felon-

in-possession charge a month earlier, in November 2011. This

means there can be no question this second arrest was uncon-

stitutional—there was no probable cause to arrest Taylor a

second time.

The district court entered summary judgment for Officer

Hughes and the rest of the executing officers on the basis that

they were not personally involved in the December arrest. But

with respect to Detective Weitzman, who opened the investi-

gative alert in the first place, the district court found a ques-

tion of fact as to whether he was responsible for canceling the

alert, and thus potentially liable for failing to do so. But even

assuming Weitzman shouldered responsibility for canceling

the alert, the district court determined he was entitled to qual-

ified immunity because there existed no case that would have

put him on notice that his “failure to cancel the investigative

alert … violated a clearly established constitutional right not

[to] be seized on a stale alert.”

No. 20-2377 25

In his opening brief, Taylor does not explain why the dis-

trict court was wrong to conclude that no clearly established

right had been violated, instead pressing only two arguments

that the district court rejected along the way to its ultimate

conclusion. Taylor has thus waived any challenge to this rul-

ing on appeal. See Tuduj v. Newbold, 958 F.3d 576, 579 (7th

Cir. 2020) (“[A]rguments not raised in an opening brief are

waived.”).

In any event, even assuming Detective Weitzman bore

some responsibility for canceling the alert, nothing in the rec-

ord indicates that he recklessly or intentionally left open the

stale alert for Taylor’s arrest—conduct akin to a Franks viola-

tion. See Herring v. United States, 555 U.S. 135, 146 (2009) (“If

the police have been shown to be reckless in maintaining a

warrant system, or to have knowingly made false entries to

lay the groundwork for future false arrests, exclusion would

certainly be justified.”). Absent such misconduct, Weitzman

could be liable only if an existing case clearly established that

his failure to monitor and cancel Taylor’s alert violated Tay-

lor’s constitutional rights. Like the district court, we too have

not found such a case.

We affirm the entry of summary judgment for Detective

Weitzman on Count VII.

E

To this point we have focused our analysis on Officer

Hughes and Detective Weitzman, aligning with the emphasis

placed on these two defendants in both parties’ briefing. But

Taylor has appealed as to all the named individual defend-

ants, so we pause briefly to address the claims against the re-

maining eight officers.

26 No. 20-2377

As to these officers, we affirm the district court across the

board. On Count I, there is no evidence that any officer except

Hughes was involved in procuring the warrant. See Ashcroft

v. Iqbal, 556 U.S. 662, 677 (2009) (explaining that, in § 1983

cases, “each Government official … is only liable for his or her

own misconduct”). On Counts II and III, all officers except

Hughes acted in good faith reliance on the facially valid

search warrant. Malley, 475 U.S. at 345. Taylor makes no argu-

ment on appeal as to Count VI, for supervisory liability

against Sergeant Kevin Johnson, so that claim is waived, see

Tuduj, 958 F.3d at 579, and in any event there is no indication

that Johnson was “personally involved in [Hughes’s] consti-

tutional violation[s].” Taylor v. Ways, 999 F.3d 478, 493–94 (7th

Cir. 2021). And on Counts IV, V, and VII, we see no evidence

that any officer besides Hughes and Weitzman played a role

in either of Taylor’s two arrests. See Iqbal, 556 U.S. at 677.

F

Finally, Taylor seeks to hold the City of Chicago liable for

two of its policies under the doctrine of Monell v. Department

of Social Services, 436 U.S. 658 (1978). Liability under Monell is

difficult to establish, requiring a § 1983 plaintiff to prove

that a municipality, either through an express policy or an im-

plied policy of inaction, took “deliberate” action that was

the “moving force” behind a constitutional injury. Bd. of

County Comm’rs of Bryan County v. Brown, 520 U.S. 397, 403–

07 (1997).

We can make quick work of Taylor’s first Monell claim—

that CPD’s policy of permitting officers to procure warrants

through the use of John Doe informants is unconstitutional.

Without detracting from our earlier skepticism of Officer

Hughes’s hasty reliance on the John Doe in this particular

No. 20-2377 27

case, that reliance caused Taylor no constitutional injury. And

so there can be no Monell liability. Id. at 403. We affirm the

district court's entry of summary judgment for the City on this

theory of liability.

The challenge to CPD’s investigative alerts policy requires

more analysis. Taylor undoubtedly suffered a constitutional

injury when, based on the stale alert, he was arrested in De-

cember 2011 without probable cause. The question is whether

the City itself can be held liable for that Fourth Amendment

violation.

Monell liability may attach in two limited sets of circum-

stances. First, if an express municipal policy or “affirmative

municipal action is itself unconstitutional,” a Monell plaintiff

has a “straightforward” path to holding the municipality ac-

countable. J.K.J. v. Polk County, 960 F.3d 367, 377 (7th Cir. 2020)

(en banc) (citing Bryan County, 520 U.S. at 404–05). In such

cases, a single instance of a constitutional violation caused by

the policy suffices to establish municipal liability. Oklahoma

City v. Tuttle, 471 U.S. 808, 822 (1985); see also Calhoun v. Ram-

sey, 408 F.3d 375, 379–80 (7th Cir. 2005).

The second path to Monell liability runs not through an ex-

pressly unconstitutional policy, but instead through “gaps in

express policies” or through “widespread practices that are

not tethered to a particular written policy”—situations in

which a municipality has knowingly acquiesced in an uncon-

stitutional result of what its express policies have left unsaid.

Calhoun, 408 F.3d at 380. Plaintiffs seeking to impose munici-

pal liability on a theory of municipal inaction must typically

point to evidence of “a prior pattern of similar constitutional

violations.” Polk County, 960 F.3d at 380. This heightened evi-

dentiary burden helps ensure that “there is a true municipal

28 No. 20-2377

policy at issue, not a random event,” Calhoun, 408 F.3d at 380,

to comport with Monell’s holding that “a municipality cannot

be held liable under § 1983 on a respondeat superior theory.”

Monell, 436 U.S. at 691.

To be sure, there exists a narrow exception to the require-

ment of evidence of prior violations for the “rare” case in

which “the unconstitutional consequences” of municipal in-

action are “so patently obvious that a city could be liable un-

der § 1983 without proof of a pre-existing pattern of viola-

tions.” Connick v. Thompson, 563 U.S. 51, 64 (2011). Such cases

are ones where “a violation of federal rights [is] a highly pre-

dictable consequence” of a municipality’s failure to act. Bryan

County, 520 U.S. at 409; see also Polk County, 960 F.3d at 382;

Glisson v. Ind. Dep’t of Corr., 849 F.3d 372, 382 (7th Cir. 2017)

(en banc); Woodward v. Corr. Med. Servs. of Ill., Inc., 368 F.3d

917, 929 (7th Cir. 2004).

Taylor invokes both theories of Monell liability. He argues

first that CPD’s investigative alerts system is facially uncon-

stitutional because, in his view, it permits warrantless arrests

without probable cause. Taylor further contends that there is

a widespread custom of shoddy audits resulting in arrests

based on stale alerts. We find neither argument persuasive.

The first claim falls well short. Taylor is correct that CPD’s

investigative alert policy is not a model of clarity, but nothing

in the express terms of the policy allows officers to arrest in-

dividuals without probable cause.

The policy creates two types of alerts: “Investigative

Alert / Probable Cause to Arrest” and “Investigative

Alert / No Probable Cause to Arrest.” And it expressly states

that “AN ARREST IS NOT AUTHORIZED” on the basis of

No. 20-2377 29

the second type of alert, but only the first. The policy goes on

to require an officer creating an alert to specify a “[j]ustifica-

tion for the investigative alert request.” Presumably, although

this is not stated expressly, the “justification” for an “Investi-

gative Alert / Probable Cause to Arrest” must include the ba-

sis for the determination that there was probable cause to ar-

rest. And, indeed, the investigative alert entered in Taylor’s

case listed his offense as “WEAPONS VIOLATION

UNLAWFUL POSS OF HANDGUN.” The policy further pro-

vides for regular audits “to ensure investigative alert requests

on file are canceled when the subject of the alert has been ap-

prehended or the investigative alert is no longer needed.”

The Fourth Amendment permits warrantless arrests sup-

ported by probable cause. See United States v. Watson, 423 U.S.

411, 416–24 (1976). And one officer’s determination of proba-

ble cause may be imputed to other officers in the department,

who may arrest on the basis of the first officer’s finding. See

United States v. Hensley, 469 U.S. 221, 232–33 (1985). On its

face, then, the investigative alerts system does not offend the

Fourth Amendment. The City’s policy authorizes arrests

based upon probable cause, and it provides a mechanism by

which stale alerts are to be canceled.

But this mechanism does not appear to have worked as

planned, at least at the time of Taylor’s arrest—which brings

us to Taylor’s second theory of Monell liability. CPD amended

its policy on investigative alerts (formerly called “stop or-

ders”) at least twice in the years prior to 2011, so that the alerts

initially expired automatically after seven days, then after

six months, and then (in the current system) never unless they

are manually deleted. That is where the audits come in—to

ensure that stale alerts get purged from the system at

30 No. 20-2377

regular intervals. But the policy does not specify any particu-

lar procedure for conducting these audits, and as the district

court found, in 2011 “there were thousands of [open] investi-

gative alerts, yet no record of any audits or a paper trail of

accountability.”

The ineffectiveness of these audits resulted in Taylor’s

constitutional injury. Under the terms of the policy, the alert

for his arrest should have been canceled in June 2011 when he

turned himself in at the police precinct, or at the very least

upon his acquittal in November 2011. But it was not, so Taylor

was arrested on the same alert in December. And inexplica-

bly, the alert yet again remained active for more than a month

after this second arrest, until an officer finally canceled it

in January.

Taylor says this series of events displays deliberate indif-

ference to an implied policy of inaction on the part of the City

of Chicago. But under Monell, an implied policy is typically

actionable only with “considerably more proof than [a] single

incident.” Tuttle, 471 U.S. at 824. And here Taylor can point to

only one constitutional violation—his December 2011 arrest.

If CPD were engaged in a widespread practice of false arrests

based on stale investigative alerts, we would have expected

discovery in this case to turn up some evidence to that effect—

internal documents, citizen complaints or calls for an investi-

gation, or perhaps some form of inquiry by an inspector gen-

eral. But Taylor has not come forward with anything along

these lines. We are therefore not assured that this arrest was

the product of “a true municipal policy” rather than “a ran-

dom event”—and a very unfortunate one at that. Calhoun, 408

F.3d at 380. Put another way, we cannot say here that the mu-

nicipality’s failure to implement more concrete auditing

No. 20-2377 31

procedures was “the ‘moving force’ behind the injury al-

leged.” Bryan County, 520 U.S. at 404.

Nor is this case one where a false arrest like Taylor’s is a

“highly predictable consequence” of a gap in a municipal pol-

icy, permitting Monell liability on the basis of a single viola-

tion. Id. at 409. The policy as written requires “the unit inves-

tigative alert file [to be] audited each police period”—roughly

every month—to ensure the cancelation of stale alerts. If the

policy had been followed as written, Taylor’s second arrest

would have never happened. Given this express auditing re-

quirement, the likely occurrence of false arrests based on stale

alerts was not “so patently obvious” that the City’s failure to

provide more direction can be called deliberate indifference.

Connick, 563 U.S. at 64. We therefore affirm the district court’s

entry of summary judgment for the City of Chicago on Tay-

lor’s Monell claims relating to the investigative alerts policy.

IV

What happened to Robert Taylor in the second half of 2011

should be a cautionary tale for the Chicago Police Depart-

ment. The events reflect a combination of administrative cor-

ner-cutting and out-and-out misconduct by a member of the

force. In the end, Robert Taylor spent 128 days in jail before

being cleared of his charges, only to be arrested again for no

reason. All of this could have been avoided had the officers in

this case—and Officer Hughes in particular—acted with more

deliberation and care. The Fourth Amendment demands

nothing less.

For these reasons, we AFFIRM in part, REVERSE in part,

and REMAND.

32 No. 20-2377

HAMILTON, Circuit Judge, concurring in part and dissent-

ing in part. I join almost all of Judge Scudder’s careful and

persuasive opinion. It provides important and pointed guid-

ance on police officers’ duty of candor in seeking search war-

rants. With regret, however, I cannot join one portion of Part

III‒F. That portion addresses plaintiff’s Monell claims against

the City of Chicago based on the “investigative alert” system

used by the police department. I agree with much of what is

said about the law of Monell in Part III‒F, but I respectfully

dissent from the application of that law to plaintiff’s evidence

on one theory. I would reverse summary judgment on plain-

tiff’s claim that his second arrest, in December 2011, was

caused by a widespread and unconstitutional city practice of

failing to carry out the promised “audits” to remove stale in-

vestigative alerts. Plaintiff has come forward with evidence

sufficient to take that claim to trial.

Under the investigative alert system, Chicago police main-

tain a database of such “alerts,” both with and without prob-

able cause, based on information received from officers. Un-

der the policy, an officer who encounters a person subject to

an alert labeled “Probable Cause to Arrest” is authorized to

arrest that person pending further investigation. In other

words, an investigative alert with probable cause is the prac-

tical equivalent of an arrest warrant. 1

1One might reasonably wonder why, under the Fourth Amendment,

such arrests of human beings are authorized without a judge finding prob-

able cause and issuing a warrant, while a non-exigent search of a home

ordinarily requires a search warrant issued by a judge. That’s a question

asked by the concurring and dissenting Justices in United States v. Watson,

423 U.S. 411 (1976), where the Court drew that distinction between arrests

No. 20-2377 33

But how reliable or stale is the information in the data-

base? According to the written policy, “the unit investigative

alert file is [to be] audited each police period.” The policy does

not specify who is supposed to carry out such audits or how,

or how thoroughly. And here is how the district court sum-

marized the evidence about real-life, as opposed to paper, au-

diting:

In 2011, at the time of Taylor’s arrest, thousands

of investigative alerts were inputted into the

system. The parties dispute whether any audits took

place that year, but there were no records of any audit

completed in 2011, no written criteria for per-

forming audits, and no records demonstrating

lieutenants were held accountable for conduct-

ing audits. (Emphasis added.)

Part III‒F of the court’s opinion correctly finds that the au-

dit provision of the investigative alert policy is essential for

the written policy to withstand constitutional challenge. Ante

at [29] (“The City’s policy authorizes arrests based upon prob-

able cause, and it provides a mechanism by which stale alerts

are to be canceled.”). The court’s opinion also acknowledges

that the audit mechanism imagined by the written policy did

not work as planned in plaintiff’s case. He was arrested on the

alert for a second time in December 2011, six months after his

original arrest on the same alert and more than a month after

he had actually been acquitted on the charge for which that

alert had been issued.

and searches. On this topic, for those of us in the lower federal courts, “a

page of history is worth a volume of logic.” See New York Trust Co. v. Eis-

ner, 256 U.S. 345, 349 (1921) (Holmes, J.).

34 No. 20-2377

The court’s opinion affirms summary judgment for the

city on the failure-to-audit Monell claim because plaintiff has

not come forward with evidence of similar, prior unjustified

arrests caused by the city’s systemic failure to audit pending

investigative alerts. Ante at 30–31. Such evidence should not

be needed here. As the court’s opinion acknowledges, evi-

dence of other similar constitutional violations is not required

under Monell for a practice or custom claim where “‘a viola-

tion of federal rights [is] a highly predictable consequence’ of

a municipality’s failure to act.” Ante at 28, quoting Board of

County Comm’rs of Bryan County v. Brown, 520 U.S. 397, 409

(1997). The Supreme Court illustrated the point in City of Can-

ton v. Harris, 489 U.S. 378 (1989). A city arms its police officers,

and policymakers “know to a moral certainty” that officers

will be required to arrest fleeing felons. The need to train of-

ficers on constitutional limits on use of deadly force is “so ob-

vious” that failure to do so could amount to deliberate indif-

ference to constitutional rights. Id. at 390 & n.10.

The danger that stale investigative alerts will produce con-

stitutional violations (and waste police officers’ time) is clear

enough that the written policy says that monthly audits are

required. That danger is also obvious enough that the audit

feature is essential to our conclusion that the written policy is

constitutional on its face. Yet Monell addresses not just written

policies but also actual practices. On this summary judgment

record, we must assume that the entire Chicago Police De-

partment carried out zero audits of pending investigative

alerts in 2011—that it did exactly nothing the entire year of

2011 to carry out a feature of the written policy that’s essential

to keep the practice within constitutional bounds. From that

evidence, a reasonable jury could infer (a) that a total failure

on that scale over that length of time reflected a de facto policy

No. 20-2377 35

of at least deliberate indifference to (b) an obvious danger of

unconstitutional deprivations of liberty based on stale alerts.

The court’s requirement of evidence of more unconstitu-

tional incidents to prove Monell liability in this case of obvious

dangers provides another data point in our court’s conflicting

jurisprudence in this important corner of § 1983 law. In a se-

ries of cases, we have applied the obvious-danger reasoning

of City of Canton and Bryan County to affirm or allow Monell

liability without proof of similar prior violations. See J.K.J. v.

Polk County, 960 F.3d 367, 382–84 (7th Cir. 2020) (en banc) (af-

firming Monell verdict for plaintiffs; risk that male guards

would sexually assault female inmates was so obvious that

policymakers’ failures amounted to deliberate indifference);

Glisson v. Indiana Dep’t of Corrections, 849 F.3d 372, 382 (7th Cir.

2017) (en banc) (reversing summary judgment on Monell

claim; dangers faced by chronically ill inmates were so obvi-

ous that failure to adopt protocols for coordinated, compre-

hensive care could be deemed deliberate indifference without

evidence of similar prior cases); Woodward v. Correctional Med-

ical Services of Illinois, Inc., 368 F.3d 917, 929 (7th Cir. 2004) (af-

firming verdict for plaintiff under Monell; danger of inmate

suicide was so obvious that failure to provide adequate sui-

cide prevention training to jail staff amounted to practice of

deliberate indifference without evidence of prior suicides).

Compare those decisions, however, to the court’s treat-

ment of the issue here, insisting on other similar cases despite

the obvious risks posed by systemic failures to audit investi-

gative alerts, and to Dean v. Wexford Health Sources, Inc., 18

F.4th 214, 237 (7th Cir. 2021) (reversing Monell verdict for

plaintiff; plaintiff failed to show similar prior cases where

prison health-care provider’s policy of “collegial review”

36 No. 20-2377

before outside medical referrals caused similar unconstitu-

tional delays in critical health care), and Hildreth v. Butler, 960

F.3d 420, 426−30 (7th Cir. 2020) (affirming summary judgment

on Monell claim for prison health-care provider whose poli-

cies for refilling and renewing prescriptions led to predictable

delays and harm because plaintiff did not offer evidence of

enough incidents to establish “widespread” practice). It’s

worth noting that all of the obvious-danger cases just cited,

other than Woodward, divided this court.

Perhaps the city could convince a jury, as it has convinced

my colleagues, that the failure to carry out audits was not as

complete as plaintiff’s evidence shows or was the result of

nothing worse than negligence. But with respect, the dangers

of unjustified arrest here are so obvious and the failure so

complete, at least according to plaintiff’s evidence, that a rea-

sonable jury could find deliberate indifference at the policy-

making level of the Chicago police.

In response to these views, one might fairly ask why, if the

dangers of unjustified arrests are so obvious, plaintiff cannot

come forward with at least a few other examples? I expect that

such examples would be quite difficult to find. Chicago must

have a mountain of arrest records that did not lead to convic-

tions. (In 2019, CPD made more than 90,000 arrests. Chicago

Police Dep’t, 2020 Annual Report at 50.) We have no indica-

tion that the Chicago police themselves keep track of errors

resulting from stale or erroneous information in the investi-

gative alert database. More generally, the city itself has recog-

nized that CPD’s recordkeeping practices related to litigation

and constitutional compliance are not reliable. See City of

Chicago Office of Inspector General, Follow-Up: Review of

the Chicago Police Department’s Management and

No. 20-2377 37

Production of Records at 2 (Sept. 16, 2021) (“CPD’s ability to

meaningfully ensure that it is fulfilling all of its constitutional

and legal obligations to produce all relevant records for crim-

inal and civil litigation remains seriously impaired.”). I have

trouble imagining a discovery tool or an independent investi-

gative measure that would be likely to work in this case, at

least without prohibitive expense. But for now, suffice it to

say that the debacle in this case and the evidence of no regular

auditing put the Chicago policymakers on notice of the need

for action. In Woodward, we said that the defendant there did

not “get a ‘one free suicide’ pass.” 368 F.3d at 929. In this case,

Chicago has received a “one free bad arrest” pass for its prac-

tice of failing to audit stale investigative alerts. It should not

count on receiving any more.