McComas v. Brickley

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2138

S HANNON M C C OMAS,

Plaintiff-Appellee,

v.

E DWARD B RICKLEY,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 1:09-cv-01540-SEB-MJD—Sarah Evans Barker, Judge.

A RGUED O CTOBER 17, 2011—D ECIDED M ARCH 13, 2012

Before B AUER, P OSNER and W OOD , Circuit Judges.

B AUER, Circuit Judge. The plaintiff-appellee, Shan-

non McComas, was arrested by the defendant-appellant,

Edward Brickley, for murder and for assisting a criminal

in the state of Indiana. State prosecutors formally

charged McComas only with assisting a criminal and

false informing. These charges were later dropped.

McComas then brought suit in federal court against

Brickley for false arrest under 42 U.S.C. § 1983. Brickley

2 No. 11-2138

moved for summary judgment in the district court,

arguing that he had probable cause for the arrest and

that he is protected by qualified immunity. The court

denied his motion. Finding error in the court’s qualified

immunity determination, we reverse.

I. BACKGROUND

The events underlying this § 1983 suit for false arrest

took place during a 2007 New Year’s Eve celebration

at Durty Nelly’s Pub & Eatery, an Indianapolis bar.

McComas was, at the time, an Indianapolis police officer,

and his wife was the manager of the bar. McComas was

off-duty on New Year’s Eve and attended the party at

Durty Nelly’s. The night progressed without major inci-

dent until, at around 3:00 a.m. on New Year’s Day, a

fight broke out. Surveillance cameras located throughout

the bar captured a chaotic series of events that cul-

minated in a shooting just outside of Durty Nelly’s

front entrance. Several patrons were wounded and a

security guard, Ronnie Croom, was killed.

The defendant-appellant, Detective Edward Brickley

of the Indianapolis police force, responded to a call

for help. He investigated the scene of the shooting

and questioned several witnesses, although he did

not interview McComas at that time. In the days that

followed, Brickley discovered a handgun stashed in

a pillowcase on Durty Nelly’s premises, and he gained

full access to the bar’s surveillance videos.

Interviews with various witnesses pointed to Sununguro

Runsununkuko (nicknamed “Go-Go”) as the primary

No. 11-2138 3

culprit in Croom’s murder.1 Go-Go was a member of the

security team hired by the bar for the party that night.

Brickley examined the surveillance videos, which

showed Go-Go using a taser on patrons during the

initial outbreak of the fight. Minutes later, McComas is

captured on the cameras walking alone to the back of

the bar, through the kitchen and toward the bar’s office.

When he reappears, he is carrying an object in his hand.

Moments later, near the bar’s front entrance, Go-Go can

be seen tasing another group of people. Go-Go eventually

walks outside, where he remains during the period of

time that the shots were fired. When Go-Go returns to

the bar, he hands off an object to another person,

Ramirez Hayes, who also worked security that night.

Minutes later, Hayes makes his way through the

kitchen and to the office in the back of the bar. When

interviewed by Brickley, Ramirez stated that the object

he received from Go-Go was a .40 caliber Smith &

Wesson, the same type of gun Brickley recovered

from the scene. After the shots were fired outside and

during the ensuing chaos, McComas was stationed

near the front door, discharging a taser on at least two

occasions in an apparent attempt at crowd control.

In the course of his investigation, Brickley spoke twice

to Norman Broaden, the promoter of Durty Nelly’s

New Year’s Eve party. Broaden claimed to have spoken

with McComas after police arrived at the scene and

intimated that McComas also spoke with Go-Go at

1

Prosecutors would later drop murder charges against Go-Go.

4 No. 11-2138

some point after the shooting. It was only after inter-

viewing several witnesses (including Hayes and

Broaden), recovering the gun, and studying the surveil-

lance footage that Brickley met with McComas to

take his statement. This statement proved critical

to McComas’s subsequent arrest. McComas initially

made several denials. First, he denied being aware of any

altercation in the bar that night until he noticed an

injured man lying on the floor near the bar’s front door.

He also claimed that at approximately 3:00 or 3:15 a.m.,

he accompanied a patron to the back of the bar to

retrieve her coat from the bar’s office. Next, he explicitly

denied speaking to anyone directly about the incident

during the aftermath, including Go-Go. He admitted

to carrying a taser at times, but claimed that he did not

use it that night and reiterated that he “was in the back”

and so did not see any fighting. Finally, he denied

having any access to a gun that night.

Brickley had gathered enough information to have

formed a relatively well-developed theory of what hap-

pened that night, and felt that McComas’s story did not

add up. So he challenged McComas’s version of events:

“I want you to understand that I’ve seen the video, the

entire video, the whole evening. . . . You’re pretty easy

to pick out of that thing . . . what you have on is very

identifiable in that surveillance video.” McComas

changed his tack almost immediately. For the first time

in the interview, he mentioned that he was drinking

that night. He then claimed to have a fuzzy memory

about whether he actually saw an altercation and

whether he used a taser. Brickley insisted that footage

No. 11-2138 5

on the surveillance video shortly after 3:00 a.m. shows

McComas walking away from the bar’s back office with

a gun in his hand. McComas replied, “No, I am not car-

rying a handgun. I’m carrying my taser.” When con-

tinually pressed by Brickley, he admitted that he

might have used Go-Go’s taser at some point in the

night, although he continued to adamantly deny

having access to a gun.

Shortly after the interview, McComas was arrested

for murder and for assisting a criminal. Prosecutors

pursued charges of assisting a criminal and false inform-

ing, but later dropped even those charges, and McComas

filed an action for false arrest against Brickley under

42 U.S.C. § 1983.

II. DISCUSSION

The district court denied Brickley’s motion for

summary judgment, finding that a genuine factual

dispute existed as to whether Brickley’s actions were

protected by the existence of probable cause. The

district court denied a motion for qualified immunity

by Brickley. Brickley appeals the denial of qualified

immunity.

A. Appellate Jurisdiction

At the outset, we address a jurisdictional issue. Al-

though typically we cannot review denials of summary

judgment, the Supreme Court has carved out an

6 No. 11-2138

exception for pre-trial determinations on the issue of

qualified immunity, allowing courts of appeals to

review them as final judgments under 28 U.S.C. § 1291.

Mitchell v. Forsyth, 472 U.S. 511, 525 (1985); Sallenger

v. Oakes, 473 F.3d 731, 738 (7th Cir. 2007). Our juris-

diction over these matters is limited, however, to review

of issues of law. Johnson v. Jones, 515 U.S. 304, 313

(1995); Sallenger, 473 F.3d at 738.

The district court relied on our decisions in Chelios v.

Heavener and Clash v. Beatty when it held that factual

disputes prevented the application of qualified im-

munity at the summary-judgment stage. Chelios, 520

F.3d 678 (7th Cir. 2008); Clash, 77 F.3d 1045 (7th Cir.

1996). Clash and Chelios both involved factually inten-

sive questions of whether officers employed excessive

force. This case is different. There are admittedly

many factual disputes between the parties, but none

are relevant to whether or not qualified immunity ap-

plies. In resolving the issue, we take as given any

facts that the district court may have assumed when

it denied summary judgment. See Leaf v. Shelnutt, 400

F.3d 1070, 1078 (7th Cir. 2005) (citations omitted).

B. Relevant Standards

Determining whether qualified immunity applies to

the actions of a public official involves a two-part

inquiry: (1) whether the facts alleged, taken in the light

most favorable to the plaintiff, amount to a constitu-

tional violation; and (2) whether the constitutional right

No. 11-2138 7

at issue was clearly established at the time of the alleged

violation. Jones v. Clark, 630 F.3d 677, 680 (7th Cir. 2011).

We may address these questions in any order. Pearson

v. Callahan, 555 U.S. 223, 236-42 (2009). Here, we need

only answer the second question to determine that

Brickley is entitled to qualified immunity.

To determine if a right was clearly established at the

time of an alleged violation, we look at “whether it

would be clear to a reasonable official that his or her

conduct was unlawful in the situation.” Carvajal v.

Dominguez, 542 F.3d 561, 566 (7th Cir. 2008); Humphrey

v. Staszak, 148 F.3d 719, 725 (7th Cir. 1998). In the context

of a wrongful arrest, the question turns on whether the

arresting officer had “arguable probable cause.” Jones,

630 F.3d at 684. Arguable probable cause exists when

a reasonable officer could mistakenly have believed that

he had probable cause to make the arrest. Id.

We review de novo the denial of a motion for summary

judgment on qualified immunity grounds, keeping in

mind that we must adopt the facts as the district court

construed them. Carvajal, 542 F.3d at 566.

McComas was arrested on suspicion of committing

two crimes: murder and assisting a criminal. Murder is

defined by Indiana law, in relevant part, as follows: “A

person who knowingly or intentionally kills another

human being . . . commits murder, a felony.” IND.

C ODE § 35-42-1-1 (2012). It is unclear how prosecutors

initially believed they had grounds on which to charge

McComas with murder, even under a theory of ac-

complice liability. Even if McComas had provided a gun

8 No. 11-2138

to Go-Go, and Go-Go had used that gun later to shoot

at patrons outside, it is an enormous stretch to infer

that McComas provided the gun intending to aid Go-Go

in killing Croom. There is simply not enough evidence in

the record to support even arguable probable cause

for an arrest on this charge.

But the absence of arguable probable cause for murder

does not preclude judgment in favor of Brickley. The

existence of arguable probable cause for either charge

is enough to bar liability for false arrest under § 1983.

See Pourghoraishi v. Flying J., Inc., 449 F.3d 751, 762 (7th

Cir. 2006).

So we turn to the other charge at the time of

McComas’s arrest; the charge of assisting a criminal. It

is defined under Indiana law in relevant part as follows:

“A person who . . . with intent to hinder the apprehen-

sion or punishment of the other person, harbors, con-

ceals, or otherwise assists the person commits assisting

a criminal.” IND. C ODE § 35-44-3-2 (2012). The district

court believed that it would be forced to make impermis-

sible credibility determinations in order to decide

whether arguable probable cause had existed for this

charge. Therefore, it concluded, the case must be re-

solved through a trial. Even under the district court’s

interpretation of the facts, we disagree.

The district court focused on the fact that the object

in McComas’s hand as he is leaving the bar’s office and

walking through the kitchen is unidentifiable. Accepting

this, it still does not render unreasonable a conclu-

sion that McComas was assisting a criminal. This is

No. 11-2138 9

especially true given the suspicious quality of

McComas’s statement immediately prior to his arrest.

At best, McComas gave an unclear and hazy account

of what happened that night. At worst, he lied. He

initially claimed not to have seen any altercation and

that he became aware of a shooting only when a body

was dragged into the bar. He further claimed that he

did not use a taser that night. He also told a story about

helping a woman to the back office to retrieve her coat.

None of these things jibed with what was clear in the

surveillance footage, which showed that McComas

was directly involved in at least part of an altercation

inside the bar and that he used a taser on a group of

patrons. It further shows that at around 3:00 a.m., he

was walking out of the back office not with a coat, but

with a smaller, unidentifiable object in his hand.

Only when Brickley revealed to McComas that the

surviellance video contradicted his story did McComas

change that story. Under these circumstances, it was

certainly not unreasonable for Brickley to conclude he

had been lied to. Lying to the police is a bad idea, in part

because it creates the impression that the liar has some-

thing to hide. This applied especially to McComas, who

as a former police officer can reasonably be expected to

know the consequences of lying to the police in the

course of a murder investigation. Indeed, Brickley’s

suspicion of McComas’s evasiveness is revealed in ex-

changes like this one:

McComas: “I’m not afraid of the police. I am the

police.”

10 No. 11-2138

Brickley: “I understand that. That’s why I’m

having such a problem.”

In this case, McComas’s shifting narrative raised the

possibility that he was somehow covering for the

supposed shooter, Go-Go. The undisputed facts show

that both McComas and Go-Go had been involved in the

altercation after the fighting broke out, and at some

point in the night, a taser found its way into McComas’s

hands. Furthermore, Broaden informed Brickley that he

saw Go-Go and McComas talking after the shooting

occurred, despite McComas’s protestations that he had

no conversation with Go-Go that night. It is not

important whether such a conversation actually hap-

pened; it is enough to note that Brickley had reason

to believe it did, and reason to distrust McComas’s

account of events.

We stress that the reasonableness of the arrest does not

turn on the plausibility of Brickley’s theory about the

gun. Indiana law is clear that the crime of assisting a

criminal is “obviously intended to cover the situation

where a person did not actively participate in the crime

itself, but after the commission of the crime aided the

criminal.” Smith v. State, 429 N.E.2d 956, 959 (Ind. 1982),

overruled in part by Wright v. State, 690 N.E.2d 1098,

1109 (Ind. 1997).

So the important question is whether there was

arguable probable cause for the arrest in light of

McComas’s troubled interview and the way it con-

tradicted the surveillance footage. Considering the

totality of the undisputed facts, we find that arresting

No. 11-2138 11

McComas was reasonable. See Wheeler v. Lawson, 539 F.3d

629, 639 (7th Cir. 2008) (“Qualified immunity protects

those officers who make a reasonable error in deter-

mining whether there is probable cause to arrest an

individual.”). Because there was arguable probable

cause on these facts, Brickley is protected by qualified

immunity from an action for false arrest.

C. False Informing

McComas was also charged with false informing, but

the charge wasn’t brought by prosecutors until some

time after his initial arrest. The charge is relevant to

McComas’s false arrest claim, however, because “an

arrest is reasonable under the Fourth Amendment so

long as there is probable cause to believe that some crimi-

nal offense has been or is being committed, even if it is

not the crime with which the officers initially charge

the suspect.” Jackson v. Parker, 627 F.3d 634, 638-39 (7th

Cir. 2010) (quoting Fox v. Hayes, 600 F.3d 819, 837 (7th Cir.

2010)). Thus, if there was arguable probable cause for

an arrest for false informing, Brickley would be entitled

to qualified immunity on this ground also.

We need not dwell on this analysis since the facts

underlying the charge of false informing are so closely

related to the facts discussed above. Indiana defines

the crime as giving “a false report of the commission of

a crime or . . . false information in the official investiga-

tion of the commission of a crime, knowing the report

or information to be false.” IND. C ODE § 35-44-2-2(d). As

we have already noted, the narrative that McComas

12 No. 11-2138

initially supplied of his involvement in the events that

night at Durty Nelly’s was plainly contradicted by the

footage on the surveillance videos. When Brickley chal-

lenged the narrative on the basis of those videos, only

then did the story change. In short, there was arguable

probable cause for an arrest immediately following

McComas’s interview for the charge of false informing.

III. CONCLUSION

For the reasons discussed above, we R EVERSE the

district court’s denial of summary judgment on the

issue of qualified immunity and R EMAND with instruc-

tions consistent with this opinion.

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