Daudi Mwangangi v. Taylor Nielsen

In the

United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 21-1576, 21-1577 & 21-1971

DAUDI M. MWANGANGI,

Plaintiff-Appellee/Cross-Appellant,

v.

TAYLOR NIELSEN, et al.,

Defendants-Appellants/Cross-Appellees,

and

CITY OF LEBANON, INDIANA,

Defendant/Cross-Appellee.

____________________

Appeals from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:19-cv-04105 — Jane Magnus-Stinson, Judge.

____________________

ARGUED JANUARY 11, 2022 — DECIDED SEPTEMBER 15, 2022

____________________

Before EASTERBROOK, SCUDDER, and KIRSCH, Circuit Judges.

SCUDDER, Circuit Judge. Daudi Mwangangi provided road-

side assistance in the greater Indianapolis area. On October 7,

2017, he got a service request from a driver in need of a

2 Nos. 21-1576, 21-1577 & 21-1971

jumpstart in nearby Lebanon, Indiana, and Mwangangi set

out to help in his used Crown Victoria. On the way there he

activated clear strobe lights on the outside of his car, and a

driver that Mwangangi passed on the highway twice called

911 to report him as a police impersonator. Shortly after

Mwangangi got the stranded Toyota Camry back up and run-

ning and on its way, he found himself at a Speedway gas

pump surrounded by seven police officers from several sur-

rounding jurisdictions.

The encounter escalated from there. Mwangangi was or-

dered from his car, handcuffed, patted down twice, and even-

tually arrested for police impersonation—charges that were

not dropped until two years later, when everyone realized he

had been telling the truth all along about his roadside assis-

tance job. Sprawling litigation followed. The district court en-

tered summary judgment for Mwangangi on many of his

Fourth Amendment-based claims—and, in doing so, denied

the police officers involved the protection of qualified immun-

ity—but found for the City of Lebanon and individual officers

as to others. Having taken our own close look at what tran-

spired, we affirm some of the district court’s rulings and re-

verse others.

I

A

Daudi Mwangangi worked for Finderserve, LLC, provid-

ing roadside assistance in and around Indianapolis. Around

9:30 p.m. on October 7, 2017, the company notified him that a

driver in nearby Lebanon needed a jumpstart, so he set out

for the job in his dark blue 2003 Ford Crown Victoria.

Mwangangi arrived at a Speedway gas station about 45

Nos. 21-1576, 21-1577 & 21-1971 3

minutes later and found the driver of a Toyota Camry parked

at a gas pump and awaiting assistance. He parked his Crown

Victoria nose-to-nose with and about two car lengths from the

other driver, activated his clear flashing strobe lights for

added visibility, and jumpstarted the Camry. Within minutes

the Camry’s driver was back on the road on his way to Cin-

cinnati. Mwangangi turned off his strobe lights and pulled up

to the gas pump to log the service call, fill his tank, and return

home.

Unbeknownst to Mwangangi, however, the local police

were looking for him. Dustin Washington, a driver that

Mwangangi had passed on the highway en route to Lebanon,

called 911 to report that a Crown Victoria with the license

plate SR393 had “attempt[ed] to pull [him] over with strobe

lights in their headlights.” The 911 dispatcher relayed that in-

formation to law enforcement officers in the Lebanon area,

advising them to “investigate for a possible police imperson-

ator” driving a “Crown Vic with strobe lights.” Washington

called back a short time later when he happened to spot

Mwangangi parked at the Lebanon Speedway. In his second

911 call, Washington reported that the same “unmarked

Crown Vic that was impersonating a police officer” was now

at the Speedway gas station “with his strobe lights flashing

behind another car.”

This second call touched off additional radio dispatches to

local law enforcement. In the first two, the dispatcher in-

formed officers that the “possible police impersonator” was at

the Speedway with its strobe lights on and a “vehicle pulled

over.” In the third, the dispatcher advised that “the vehicle

they thought they had pulled over left” the gas station, but

4 Nos. 21-1576, 21-1577 & 21-1971

that the “blue Crown Vic” was still “pulled over by a pump”

and the driver was in the vehicle.

All four City of Lebanon police officers on duty that

night—Sergeant Ben Phelps, Officer Taylor Nielsen, Officer

Trey Hendrix, and Officer Frank Noland—responded to the

Speedway station. Three officers from nearby jurisdictions

provided backup as well, including Officer Blayne Root from

the neighboring Town of Whitestown.

Officer Nielsen arrived first, just a few minutes after

Mwangangi jumpstarted the stranded Camry. When she

pulled into the Speedway and parked behind Mwangangi’s

Crown Victoria, she immediately noticed a lightbar stretching

across the vehicle’s rear window and a sheriffs-supporter spe-

cialty license plate with a plate number matching the one that

came over the radio dispatches. Officer Nielsen activated her

red and blue lights and approached the front passenger-side

window to ask Mwangangi a few questions. She saw reflec-

tive traffic vests, a mounted flashlight and tablet, and what

appeared to be radar equipment inside the Crown Victoria,

and so she asked Mwangangi to step outside his car to con-

tinue the questioning.

By this point, all the responding officers had arrived on the

scene and, like Officer Nielsen, activated their lights. Officer

Root met Mwangangi as he stepped out of the Crown Victoria

and immediately turned him around and patted him down.

The frisk turned up no weapons, but Officer Root proceeded

to handcuff Mwangangi and move him away from the Crown

Victoria. At that point Officer Root handed Mwangangi off to

Officer Noland, who performed a second, more extensive pat

down over Mwangangi’s torso and arms, in between his

spread legs, and inside his reflective safety vest. Mwangangi

Nos. 21-1576, 21-1577 & 21-1971 5

remained handcuffed the entire time. The second pat down

also did not turn up any weapons or contraband.

While this was unfolding, the Boone County dispatcher in-

formed the officers at the scene that the 911 caller, Dustin

Washington, was there too. Two officers then talked to Wash-

ington and the person with him and got a more complete ac-

count of what prompted the 911 calls. Washington stated that

the Crown Victoria tailgated him on the highway, activated

its strobe lights, and turned on its lefthand turn signal before

passing him in the right lane. By chance, when Washington

got off the highway a few minutes later, he spotted the same

Crown Victoria parked nose-to-nose with another vehicle in

the Speedway parking lot.

Armed with this new information, the officers huddled to

discuss what they had learned so far and to decide next steps.

Based on that conversation, Officer Nielsen returned to

Mwangangi, read him his Miranda rights, and asked him a se-

ries of questions, including where he lived, what he did for a

living, the nature of his visit to the Speedway, and the like.

Mwangangi answered truthfully and told Officer Nielsen that

he worked for a company named Finderserve and was at the

gas station responding to a roadside assistance call from a mo-

torist on his way to Cincinnati who needed a jumpstart. Of-

ficer Root, standing nearby and seeking to corroborate

Mwangangi’s story, ran a Google search for “Findaserve”—

only and unsurprisingly (given the mistaken spelling) to find

nothing. Mwangangi offered to pull up his call log for officers

if they removed his handcuffs. He then declined their request

to search his cell phone.

The officers conferred once more. In their view,

Mwangangi’s account did not add up: they found no trace of

6 Nos. 21-1576, 21-1577 & 21-1971

Mwangangi’s supposed employer on the internet, he had re-

fused the officers’ request to review his logbook, and they did

not understand his recounting of the jumpstarted Camry’s

comings and goings. All of this led Sergeant Phelps, the rank-

ing officer at the scene, to decide that they would “J3 and hook

and search”—arrest Mwangangi and tow and perform an in-

ventory search of the Crown Victoria—and let the prosecutors

decide whether criminal charges should follow. So with that

the officers took Mwangangi to the Boone County Jail, where

he remained for two days.

Local prosecutors ultimately charged Mwangangi with

impersonating a police officer, in violation of Indiana Code

§ 35-44.1-2-6(b). Law enforcement also secured a warrant to

search his cell phone and iPad, which the police kept for five

months. Mwangangi defended himself against the charge un-

til it was finally dismissed two years later in October 2019.

Mwangangi brought a lawsuit of his own later that same

month. He filed a complaint including causes of action that

fell into three general buckets. First, he invoked

42 U.S.C. § 1983 and alleged that the individual police officers

involved in his stop and arrest violated his Fourth Amend-

ment rights. His theories of liability were wide-ranging, in-

cluding challenging the initial investigatory stop, the two pat

downs, the handcuffing, and the ultimate arrest decision. Sec-

ond, Mwangangi sought to impose Monell liability against the

City of Lebanon based on its handcuffing and vehicle inven-

tory search policies. Third, he alleged state law theories of

false arrest, false imprisonment, battery, negligence, and neg-

ligent training and supervision against the City and individ-

ual Lebanon police officers.

Nos. 21-1576, 21-1577 & 21-1971 7

Following discovery, the parties filed cross-motions for

summary judgment.

B

The district court’s decision was a mixed bag for all in-

volved. The court entered partial summary judgment for

Mwangangi on four issues: (1) that Officer Root’s pat down

was an unreasonable search; (2) that the officers’ decision to

handcuff Mwangangi was unreasonable and converted his

detention into an arrest without probable cause; (3) that Of-

ficer Noland’s second pat down was also an unreasonable

search; and (4) the officers’ formal decision to arrest him

lacked probable cause. On each point, the district court deter-

mined that the individual officers were not entitled to quali-

fied immunity.

But the defendants were also partially successful on their

cross-motion for summary judgment. The district court en-

tered judgment in their favor on Mwangangi’s challenges to

the legality of his initial detention, Officer Nielsen’s decision

to order him out of his vehicle, and the alleged use of exces-

sive force based on the tightness of his handcuffs. It also en-

tered summary judgment for the City of Lebanon on

Mwangangi’s Monell claim based on the City’s inventory

search policy and for the relevant defendants on his state law

claims of intentional infliction of emotional distress, negligent

handling of property, and negligent training and supervision.

Finally, there were several issues that the district court

concluded could not be resolved at summary judgment.

These included Mwangangi’s failure to intervene and super-

visory liability allegations against individual officers, his Mo-

nell challenge relating to handcuffing, and his state law

8 Nos. 21-1576, 21-1577 & 21-1971

theories of false imprisonment, false arrest, and battery. Those

claims are set to proceed to trial after the resolution of this

appeal.

The parties filed timely cross-appeals.

II

We start with a note on appellate jurisdiction. The district

court’s “denial of qualified immunity is within our jurisdic-

tion to review before a final judgment,” because the “denial

turns on ‘abstract’ questions of law” rather than factual dis-

putes between the parties. Hanson v. LeVan, 967 F.3d 584, 589

(7th Cir. 2020). Indeed, in ruling on those questions of law, the

district court rightly viewed the facts in the light most favor-

able to Mwangangi, the nonmovant. We do the same. See

Johnson v. Jones, 515 U.S. 304, 319–20 (1995).

Mwangangi urges that we also have appellate jurisdiction

over his cross-appeal because the district court entered a par-

tial final judgment under Federal Rule of Civil Procedure

54(b). That rule permits a district court to “direct entry of a

final judgment as to one or more, but fewer than all, claims”

if the court “expressly determines that there is no just reason

for delay.” Fed R. Civ. P. 54(b); Factory Mut. Ins. Co. v. Bobst

Group USA, Inc., 392 F.3d 922, 924 (7th Cir. 2004) (“Rule 54(b)

permits entry of a partial final judgment only when all of one

party’s claims or rights have been fully adjudicated, or when

a distinct claim has been fully resolved with respect to all par-

ties.”). A district court’s doing so brings the claims encom-

passed by the partial final judgment within the scope of

28 U.S.C. § 1291, which authorizes appellate jurisdiction over

“final decisions of the district courts of the United States.”

Nos. 21-1576, 21-1577 & 21-1971 9

Our case law explains, however, that we do not always ac-

cept a Rule 54(b) partial final judgment at face value. See Sears,

Roebuck & Co. v. Mackey, 351 U.S. 427, 437 (1956) (“The District

Court cannot, in the exercise of its discretion, treat as ‘final’

that which is not ‘final’ within the meaning of § 1291.”). As a

court of review, we must be assured that the district court has

actually rendered a “final judgment”—“a ‘judgment’ in the

sense that it is a decision upon a cognizable claim for relief,”

and “‘final’ in the sense that it is ‘an ultimate disposition of an

individual claim entered in the course of a multiple claims ac-

tion.’” Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 7

(1980).

Our review of a purportedly final partial judgment pro-

ceeds in two steps. Rankins v. Sys. Sols. of Kentucky, LLC, 40

F.4th 589, 591–92 (7th Cir. 2022). First, we assess whether the

“district court’s order was truly a final judgment” by taking

our own independent look at “the degree of overlap between

the certified claim and all other parts of the case that are still

pending in the district court.” Id. at 592 (cleaned up). Essen-

tially, we are looking to see whether “the certified claim is

akin to a standalone lawsuit.” Id. Second, “we must consider

whether the district court abused its discretion in finding no

just reason to delay the appeal of the adjudicated claim.” Id. If

these two requirements are not met, we must dismiss for lack

of jurisdiction, because the Rule 54(b) judgment is not final for

the purposes of § 1291. Id.

The district court’s Rule 54(b) partial final judgment en-

compasses two claims: one arising from the inventory search

of Mwangangi’s vehicle and another regarding the retention

of his property pursuant to a search warrant after his arrest.

Those claims, in turn, encompass various federal and state

10 Nos. 21-1576, 21-1577 & 21-1971

theories of liability—that the City is liable for the inventory

search under Monell, for example, and that the City and indi-

vidual officers shoulder responsibility for damage caused by

the inventory search or for the unreasonable retention of

Mwangangi’s property under various state-law theories of la-

bility.

We are confident the district court resolved these two

claims as to all parties Mwangangi named and sought to hold

responsible. We are equally confident both of those claims are

distinct from the claims that remain pending in the district

court and require resolution by trial—one based on

Mwangangi’s handcuffing and one based on his arrest. See,

e.g., 10 Charles Alan Wright & Arthur R. Miller, Federal Prac-

tice & Procedure § 2657 (4th ed.) (“[W]hen a claimant presents

a number of legal theories, but will be permitted to recover

only on one of them, the bases for recovery are mutually ex-

clusive . . . and the plaintiff has only a single claim for relief

for purposes of Rule 54(b).”).

Put most simply, the inventory search and property reten-

tion claims resolved by the district court root themselves in

discrete facts and seek redress for distinct and separately

compensable harms when compared with the claims still

pending and awaiting trial. See Local P-171, Amalgamated Meat

Cutters & Butcher Workmen of N. Am. v. Thompson, 642 F.2d

1065, 1070–71 (7th Cir. 1981) (“At a minimum, claims cannot

be separate unless separate recovery is possible on each.”);

Wright & Miller § 2657 (“[I]f the claims factually are separate

and independent, then multiple claims clearly are present.”).

Nothing in this appeal affects the remaining claims. See Horn

v. Transcon Lines, Inc., 898 F.2d 589, 592 (7th Cir. 1990).

Nos. 21-1576, 21-1577 & 21-1971 11

As to the second prong of our review, the district court

concluded that there was no just reason for delay because the

officer defendants were already “entitled to an appeal con-

cerning the qualified immunity determinations.” And, more-

over, if Mwangangi were to prevail on either claim in his

cross-appeal, whatever was sent back to the district court

could be consolidated with his other claims for a single trial—

avoiding piecemeal litigation in both the district court and

our court.

We see no abuse of discretion in this determination. The

officers were entitled to—and signaled their intent to take ad-

vantage of—immediate review of the district court’s denial of

qualified immunity on certain of Mwangangi’s claims. The

district court proceedings were already delayed then, and the

court was within its discretion to conclude that the incremen-

tal burden from immediate appellate review of Mwangangi’s

finally-resolved claims was minimal.

We are therefore satisfied that we have appellate jurisdic-

tion over all the claims before us. We can proceed to the mer-

its.

III

A

The Fourth Amendment framework governing

Mwangangi’s various claims is well-established. All agree

that “[s]topping someone is generally considered a seizure for

which probable cause is required,” with the Supreme Court

in Terry v. Ohio recognizing “a limited exception to the Fourth

Amendment’s probable-cause requirement for brief investi-

gatory stops.” United States v. Olson, 41 F.4th 792, 799 (7th Cir.

2022) (citing 392 U.S. 1, 88 (1968)). These short detentions give

12 Nos. 21-1576, 21-1577 & 21-1971

officers a chance to “verify (or dispel) well-founded suspi-

cions that a person has been, is, or is about to be engaged in

criminal activity.” United States v. Leo, 792 F.3d 742, 751 (7th

Cir. 2015).

A Terry stop “requires only reasonable suspicion of crimi-

nal activity” to justify the seizure. Olson, 41 F.4th at 799. This

standard, we have explained, requires the existence of “a par-

ticularized and objective basis for suspecting the particular

person stopped of criminal activity.” United States v. Cole, 21

F.4th 421, 433 (7th Cir. 2021) (en banc) (quoting Navarette v.

California, 572 U.S. 393, 396–97 (2014)). For the stop to “pass

constitutional muster, the investigation following it must be

reasonably related in scope and duration to the circumstances

that justified the stop in the first instance.” United States v.

Bullock, 632 F.3d 1004, 1015 (7th Cir. 2011) (quoting United

States v. Robinson, 30 F.3d 774, 784 (7th Cir. 1994)). During a

Terry stop, officers may order a driver out of his vehicle, Ari-

zona v. Johnson, 555 U.S. 323, 331 (2009), and then proceed to

pat him down for weapons “if the officer reasonably con-

cludes that the driver ‘might be armed and presently danger-

ous,’” id., based on “specific and articulable facts.” United

States v. Shoals, 478 F.3d 850, 853 (7th Cir. 2007). But a Terry

stop can “ripen into a de facto arrest that must be based on

probable cause if it continues too long or becomes unreason-

ably intrusive,” including through a disproportionate use of

force. Bullock, 632 F.3d at 1015; Olson, 41 F.4th at 799.

Because courts confront nearly endless variations of facts

in the Terry context, we have resisted the urge to conclude that

an officer’s use of a particular type of force automatically

transforms a Terry stop into a full custodial arrest. See, e.g.,

Shoals, 478 F.3d at 853 (collecting cases establishing that an

Nos. 21-1576, 21-1577 & 21-1971 13

officer’s decision to draw a weapon or handcuff the subject,

standing alone, does not necessarily lead to the conclusion

that the suspect was arrested). Even in an area of law with few

hard and fast rules, however, the use of certain police restraint

techniques such as “using handcuffs, placing suspects in po-

lice cars, drawing weapons, and other measures of force more

traditionally associated with arrests,” may become “so intru-

sive” as to “become[] tantamount to an arrest requiring prob-

able cause.” Bullock, 632 F.3d at 1016 (cleaned up); see also

Matz v. Klotka, 769 F.3d 517, 526 (7th Cir. 2014) (explaining that

these “hallmarks of formal arrest … should not be the norm

during an investigatory detention”).

Police may acquire enough information over the course of

the stop to develop probable cause for an arrest. See United

States v. Reedy, 989 F.3d 548, 553 (7th Cir. 2021). And “[p]rob-

able cause is an absolute bar to a claim of false arrest asserted

under the Fourth Amendment and section 1983.” Muhammad

v. Pearson, 900 F.3d 898, 907 (7th Cir. 2018); Huff v. Reichert, 744

F.3d 999, 1007 (7th Cir. 2014) (explaining that an officer has

probable cause “when the facts and circumstances within the

officer’s knowledge and of which they have reasonably trust-

worthy information are sufficient to warrant a prudent person

in believing that the suspect had committed an offense”

(cleaned up)).

But even if an officer’s probable cause assessment is mis-

taken, qualified immunity may protect him from liability.

Huff, 744 F.3d at 1007. If an officer has “arguable probable

cause”—meaning that “a reasonable officer in the same cir-

cumstances and possessing the same knowledge as the officer

in question could have reasonably believed that probable

cause existed in light of well-established law”—we cannot say

14 Nos. 21-1576, 21-1577 & 21-1971

that the officer violated the plaintiff’s clearly established con-

stitutional rights. Id. (cleaned up); see also McComas v. Brick-

ley, 673 F.3d 722, 725 (7th Cir. 2012).

B

In the district court, Mwangangi challenged nearly every

aspect of his encounter with police, from the initial stop

through the officers’ decisions to pat him down, handcuff

him, arrest him, and tow and search his vehicle, to even the

City’s retention of his property for months after his arrest.

Our focus on appeal is narrower. The summary judgment

record supports the conclusion that Officer Nielsen had a

“particularized and objective basis” to justify an investigatory

Terry stop in the Speedway parking lot based on the infor-

mation relayed by the 911 dispatcher and what she saw when

she arrived on the scene. Cole, 21 F.4th at 433. It is equally

clear, in our view, that Officer Nielsen had ample authority to

ask Mwangangi to step out of his car to answer some ques-

tions. See Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977). The

analysis gets a lot harder from that point forward, however.

We take it step by step to track the issues presented on appeal.

1. Officer Root’s First Pat Down

Officer Blayne Root of the Whitestown police department

met Mwangangi as he stepped out of the Crown Victoria. Im-

mediately—based on nothing more than what was known

from the dispatch calls and his brief observation of the vehi-

cle, and over Mwangangi’s denial that he had any weapons

on him—Officer Root instructed him to turn around and place

his phone on top of the car, patted him down for weapons,

and handcuffed him. Mwangangi contended, and the district

court agreed, that by doing so, Officer Root violated his

Nos. 21-1576, 21-1577 & 21-1971 15

Fourth Amendment rights, and that Root’s actions were so

unreasonable as to deny him the defense of qualified immun-

ity.

We see the initial pat down differently, based in large part

on one key, undisputed fact. Some crimes, by their “very na-

ture,” we have explained, are “so suggestive of the presence

and use of weapons that a frisk is always reasonable when of-

ficers have reasonable suspicion that an individual might be

involved in such a crime.” United States v. Barnett, 505 F.3d

637, 640 (7th Cir. 2007) (citing Terry, 392 U.S. at 33 (Harlan, J.,

concurring)); see also United States v. Snow, 656 F.3d 498, 501

(7th Cir. 2011) (same). Here, the police were investigating sus-

pected police impersonation—an offense that, in terms of the

likelihood of a weapon being present, is far more akin to rob-

bery, burglary, assault with weapons, or car theft (offenses

where courts have found an automatic right to frisk) than

crimes like marijuana possession, shoplifting, petty theft, tres-

passing, or alcohol offenses (where courts have required other

circumstances suggesting the suspect is armed and danger-

ous). See 4 Wayne R. LaFave, Search & Seizure § 9.6(a) (6th ed.

2021); see also Barnett, 505 F.3d at 640 (concluding that bur-

glary is one example of a “crime normally and reasonably ex-

pected to involve a weapon”).

Taking stock of this context, we conclude that an officer in

Officer Root’s position could have reasonably suspected that

Mwangangi had a weapon. Doubtless some instances of po-

lice impersonation may raise no reasonable suspicion of

weapons being present. But here Officer Root, responding to

a barebones dispatch and meeting a suspect climbing out of a

darkly tinted vehicle resembling an unmarked police car, did

not know enough to rule out the possibility that Mwangangi

16 Nos. 21-1576, 21-1577 & 21-1971

was armed. We therefore cannot say that this first pat down

violated Mwangangi’s Fourth Amendment rights.

We need to sound a word of caution, though. Officer Root

acknowledged in his deposition that, as a subjective matter,

he had no reason to believe Mwangangi presented a danger.

When pressed for a justification for the pat down, he sug-

gested that “anything can be used as a weapon”—even com-

monplace items that people might keep in their cars like

“windshield washer fluid” or a “ballpoint pen, [a] cell phone,

[or] a highlighter.” This goes way too far. As we have empha-

sized on prior occasions, these types of overgeneralized justi-

fications—rationales applicable “to practically any person

that had been around the area when the officers showed

up”—cannot support an officer’s proceeding from a stop to a

frisk. Doornbos v. City of Chicago, 868 F.3d 572, 582 (7th Cir.

2017).

Because of the context of the potential crime under inves-

tigation and surrounding circumstances, Officer Root’s deci-

sion to pat Mwangangi down did not amount to a constitu-

tional violation. But do not mistake our overarching message:

Officer Root’s non-offense-based and nearly universally ap-

plicable justifications for his pat down of Mwangangi find no

support in law. There is no “one free pat down” rule—full

stop. Officers must be able to point to particular facts support-

ing an objectively reasonable suspicion that a suspect was

armed and dangerous.

2. Officer Root’s Decision to Handcuff

That brings us to Officer Root’s handcuffing of

Mwangangi immediately following the pat down. “[T]he use

of handcuffs substantially aggravates the intrusiveness of a

Nos. 21-1576, 21-1577 & 21-1971 17

Terry stop” and, as a meaningful “restraint[] on freedom of

movement,” is “normally associated with arrest.” United States

v. Glenna, 878 F.2d 967, 972 (7th Cir. 1989) (emphasis in origi-

nal); see also United States v. Smith, 3 F.3d 1088, 1094–95 (7th

Cir. 1993). While there is no categorical rule that an officer’s

decision to place a suspect in handcuffs always transforms the

interaction from a Terry stop into an arrest, it is the “rare case”

in which “common sense and ordinary human experience

convince us that an officer believed reasonably that an inves-

tigative stop could be effectuated safely only in this manner.”

Glenna, 878 F.2d at 973 (cleaned up); see also United States v.

Howard, 729 F.3d 655, 661 (7th Cir. 2013) (“Handcuffs in a

Terry stop and frisk are not and should not be the norm.”).

This was not that rare case. Compare, e.g., Glenna, 878 F.2d

at 973 (determining handcuffing did not indicate arrest where

officers had dispatch information that the suspect possessed

several small armed weapons and an explosive device and

discovered a loaded clip during the stop); United States v.

Smith, 697 F.3d 625, 631 (7th Cir. 2012) (concluding handcuff-

ing a suspected bank robber, who was left on the scene with a

single member of law enforcement, did not transform the stop

into arrest); Matz, 769 F.3d at 526 (explaining that officers

could handcuff, as part of a Terry stop, the associate of an

AWOL gang member under investigation for an armed rob-

bery and potential murder who had been spotted in a car with

that gang member).

Nothing here is close to the circumstances present in

Glenna, Smith, and Matz, and even in those cases the officers’

use of handcuffs helped push the suspects’ encounters to “the

outer edge of a permissible Terry stop.” Matz, 769 F.3d at 525.

Officer Root did not hesitate to acknowledge that Mwangangi

18 Nos. 21-1576, 21-1577 & 21-1971

was friendly, respectful, and fully compliant with his instruc-

tions after stepping out of the car. And the pat down dispelled

any notion that, based on the nature of the 911 calls, he was

dealing with an armed or dangerous suspect—the frisk did

not turn up a weapon or contraband of any kind. Rather, Of-

ficer Root’s use of handcuffs seems to have been automatic—

a reflexive next step untethered to anything except highly

generalized concerns about officer safety. As a result, Officer

Root’s use of handcuffs exceeded the permissible scope of the

underlying Terry stop.

The question, then, is whether Officer Root’s handcuffing

effectuated a lawful de facto arrest of Mwangangi. The latter

inquiry, in turn, depends on whether the facts and circum-

stances—as known to Officer Root at the time of the handcuff-

ing—established probable cause to arrest Mwangangi for po-

lice impersonation under Indiana law. See, e.g., Robinson, 30

F.3d at 785. We see the answer as no.

Officer Root knew very little at the moment he put

Mwangangi in handcuffs. He knew (at least some of) what

had been relayed through the 911 dispatcher to that point:

that there was a “possible police impersonator” in a blue

Crown Victoria with strobe lights and license plate SR393

heading toward Lebanon, and that the same unmarked car

was later spotted at the Lebanon Speedway “with a vehicle

pulled over.” The few minutes of firsthand observations be-

tween when he arrived and when he placed Mwangangi in

handcuffs did not add much. Indeed, in his deposition, Of-

ficer Root testified that he did not have “any specific memory”

of anything that he observed until Officer Nielsen asked

Mwangangi to step out of his car.

Nos. 21-1576, 21-1577 & 21-1971 19

But without any details “relating to any specific activity

associated with the Crown Victoria that represented illegality

other than the conclusion” that the driver was a possible po-

lice impersonator, the information at Officer Root’s disposal

did not add up to a reasonable belief that Mwangangi had vi-

olated the Indiana statute prohibiting police impersonation—

or committed any other crime. See Maniscalco v. Simon, 712

F.3d 1139, 1144 (7th Cir. 2013) (explaining an “arrest is per-

missible under the Fourth Amendment if the arresting officer

had probable cause to make the arrest for any reason”). At

bottom, when Officer Root handcuffed Mwangangi, all he

knew was that Mwangangi got out of a vehicle that looked

like an unmarked police car and, according to a dispatch call,

belonged to a suspected police impersonator. There was noth-

ing else to support a reasonable belief that Mwangangi had

falsely represented that he was a police officer with the intent

to deceive or induce compliance by another. See Ind. Code

§ 35-44.1-2-6.

Officer Root’s arguments to the contrary fall short and into

the common trap of borrowing information known to other

officers on the scene to shore up his own probable cause as-

sessment. But this is not the type of scenario where, under the

so-called collective knowledge doctrine, Officer Root could

rely on other officers’ observations to justify the arrest, as he

was not acting at their direction at the time. See, e.g., United

States v. Nicksion, 628 F.3d 368, 376–77 (7th Cir. 2010); see also

United States v. Nafzger, 974 F.2d 906, 911 (7th Cir. 1992) (ex-

plaining, in the Terry context, that “the requesting officer’s be-

lief that there is sufficient evidence to detain a suspect must

have been communicated to the officer performing the stop”).

And even if Officer Root learned all of the relevant infor-

mation as the encounter progressed, “the probable cause

20 Nos. 21-1576, 21-1577 & 21-1971

analysis is an ex ante test: the fact that the officer later discov-

ers additional evidence unknown to [him] at the time of the

arrest is irrelevant as to whether probable cause existed at the

crucial time.” Padula v. Leimbach, 656 F.3d 595, 601 (7th Cir.

2011) (cleaned up).

Finally, on these facts, we cannot say that Officer Root had

even “arguable probable cause” to arrest. “[A] reasonable of-

ficer in the same circumstances and possessing the same

knowledge”—working essentially off only a 911 call, with no

information about the underlying conduct that prompted that

call—could not have reasonably believed that probable cause

existed to arrest Mwangangi for police impersonation. Huff,

744 F.3d at 1007 (cleaned up). To conclude otherwise risks

conflating the authority justifying the initial Terry stop with

the authority to arrest. We decline to do so.

The district court was therefore right to enter summary

judgment for Mwangangi on his Fourth Amendment hand-

cuffing claim.

3. Officer Noland’s Second Pat Down

We next turn to Mwangangi’s claim against Officer No-

land challenging the second pat down. Recall that Officer

Root handed Mwangangi off to Officer Noland immediately

after the initial pat down and handcuffing. Officer Noland

then performed a second, more extensive pat down. The dis-

trict court determined that this pat down was unreasonable

because Officer Noland lacked any articulable basis for be-

lieving Mwangangi was armed and dangerous. And the dis-

trict court saw the second pat down as “even more unreason-

able” than Officer Root’s first pat down, because Officer

Nos. 21-1576, 21-1577 & 21-1971 21

Noland “personally witnessed Officer Root complete the first

pat down and Mr. Mwangangi was in handcuffs.”

Officer Noland nowhere challenges this precise ruling on

appeal. Indeed, not a single word in the Lebanon officers’ ap-

pellate brief—filed on behalf of Noland and others—ad-

dresses the second pat down, despite the district court’s ex-

press, adverse ruling on Mwangangi’s claim against Officer

Noland and determination that he committed a Fourth

Amendment violation. Instead, the Lebanon officers skip past

the second pat down and argue only generally that everyone

on the scene had at least arguable probable cause by the time

Sergeant Phelps and Officer Nielsen made the formal decision

to arrest.

The problem for Officer Noland, however, is that the for-

mal arrest decision came well after the second pat down and,

crucially, after officers had an opportunity to interview the

911 caller, his passenger, and Mwangangi himself. Cf. Rawl-

ings v. Kentucky, 448 U.S. 98, 111 (1980) (concluding that it was

not “particularly important that the search preceded the ar-

rest rather than vice versa” where—unlike here—“the formal

arrest followed quickly on the heels of the challenged search

of petitioner’s person”).

Officer Noland did not argue, as he might have, that he

had an articulable suspicion that Mwangangi remained

armed and dangerous even after Officer Root’s first (perhaps

more cursory) pat down, or that he independently had prob-

able cause to arrest at that moment. And, of course, we cannot

make those arguments for him; “[i]n our adversarial system

of adjudication, we follow the principle of party presentation”

that is “designed around the premise that parties represented

by competent counsel know what is best for them, and are

22 Nos. 21-1576, 21-1577 & 21-1971

responsible for advancing the facts and argument entitling

them to relief.” United States v. Sineneng-Smith, 140 S. Ct. 1575,

1579 (2020) (cleaned up).

Applying the principle here, we see no choice but to con-

clude that Officer Noland—by remaining entirely silent on

the district court’s direct, express analysis of his conduct—

waived any challenge to the district court’s determination that

his second pat down violated Mwangangi’s Fourth Amend-

ment rights. See also, e.g., Vesey v. Envoy Air, Inc., 999 F.3d 456,

464 (7th Cir. 2021) (explaining that “[u]ndeveloped argu-

ments are waived on appeal,” and that, even where there is

some elaboration in a reply brief, “arguments not made in the

principal brief are forfeited”).

4. The Officers’ Formal Arrest Decision

Finally, Mwangangi urges that the officers’ formal arrest

decision lacked probable cause. We cannot agree. Circum-

stances changed between Officer Root’s handcuffing of

Mwangangi and the time that Sergeant Phelps and Officer

Nielsen made the decision to formally arrest Mwangangi, tow

his car, and transport him to the local jail. The arrest decision

was reasonable based on what officers learned in the interim.

First, at roughly the same time that Officer Root hand-

cuffed Mwangangi, Boone County Dispatch advised that the

911 caller was at the Speedway gas station in a black Kia. The

dispatcher also relayed that the 911 caller positively identified

Mwangangi’s Crown Victoria as the vehicle he called about

30 minutes earlier.

Second, Sergeant Phelps and Officer Hendrix interviewed

the 911 caller, Dustin Washington, and his passenger and

learned more about what had prompted the first 911 call.

Nos. 21-1576, 21-1577 & 21-1971 23

They told the officers that Mwangangi’s Crown Victoria tail-

gated him on the highway with clear strobe lights on and its

lefthand turn signal activated, which they interpreted as the

Crown Victoria trying to get the Kia to move to the shoulder.

When the Kia did not slow down or move out of the way, the

Crown Victoria passed it in the right lane. Not long after,

Washington spotted the same Crown Victoria parked nose-to-

nose with a Toyota Camry in the Speedway parking lot—

again with its strobe lights activated.

Third, in their brief discussion after the interview, the of-

ficers shared with each other what they had learned so far. For

her part, Officer Nielsen told the others that Mwangangi had

traffic vests, traffic cones, and “a whole radar system” in his

car, and Officer Root added that he had a “light bar that goes

the whole back window.”

Fourth, Officer Nielsen interviewed Mwangangi. After tell-

ing him that he was “not under arrest” and reading him his

Miranda rights, she asked questions about where Mwangangi

lived, what he did for a living, whether he was driving his

personal vehicle, whether the lights on his car were function-

ing, and whether he had activated them on the interstate ear-

lier that night. She also asked some travel-related questions.

Over the course of this questioning, Mwangangi told Of-

ficer Nielsen that he lived in Carmel and worked for Finder-

serve doing roadside assistance—though the officers under-

stood him to be saying “Findaserve.” Mwangangi said that he

had come to jumpstart a driver on their way from Chicago to

Cincinnati. He also told officers that the car he jumpstarted

was a black Toyota and that he had the car’s information on

his phone but declined when Officer Nielsen asked whether

24 Nos. 21-1576, 21-1577 & 21-1971

they could go through his phone and look at the service re-

quests for themselves.

In the officers’ view, these facts, taken together, supplied

a reasonable belief that Mwangangi had violated Indiana’s

police impersonation statute, § 35-44.1-2-6. See, e.g., Jump v.

Village of Shorewood, 42 F.4th 782, 789 (7th Cir. 2022) (explain-

ing that probable cause “exists at arrest when a reasonable of-

ficer with all the knowledge of the on-scene officers would

have believed that the suspect committed an offense defined

by state law”). And even if these facts did not add up to prob-

able cause, the officers continue, they are entitled to qualified

immunity because they did not have “fair notice, based upon

then-existing precedent, that it would be unlawful to arrest

[Mwangangi] for impersonating a law enforcement officer”

on these facts—and a reasonable officer could have mistak-

enly believed that probable cause existed.

We agree with the officers that an objective assessment of

the totality of the facts and circumstances they faced provided

them with arguable probable cause to arrest Mwangangi.

When Sergeant Phelps and Officer Nielsen made the formal

arrest decision, they could rely on:

• A known eyewitness’s statement describing

how Mwangangi, driving an unmarked

Crown Victoria, tailgated him and flashed

strobe lights, seemingly in an attempt to get

him to move to the side of the road;

• That same witness’s account of Mwangangi

pulled nose-to-nose with a different driver

in the Speedway parking lot, again with the

Crown Victoria’s strobe lights activated; and

Nos. 21-1576, 21-1577 & 21-1971 25

• Officer Nielsen’s observations that

Mwangangi had safety vests, traffic cones, a

SureFire flashlight, a mounted tablet, and

what appeared to be radar equipment inside

of his vehicle, in addition to a lightbar

stretching across the rear window, function-

ing strobe lights, and a sheriffs supporter li-

cense plate on the outside of his car.

The parties spill substantial ink about the proper interpre-

tation of Indiana’s police impersonation statute and what it

means to “represent” oneself as a law enforcement officer. See

Ind. Code § 35-44.1-2-6(b). There is very little guidance from

Indiana courts on the question. But we need not wade into

that thicket. Especially against the backdrop of an undevel-

oped statute, an officer could have reasonably, subjectively

believed that Mwangangi violated the statute by attempting

to pull another driver over in a car that resembled an un-

marked police vehicle and that had common law enforcement

tools inside—even if, as they did here, prosecutors later con-

clude that Mwangangi’s conduct objectively did not fit the

statutory prohibition. See, e.g., D.Z. v. Buell, 796 F.3d 749, 755

(7th Cir. 2015) (explaining that “even if probable cause is lack-

ing with respect to an arrest, an officer is entitled to qualified

immunity if his subjective belief that he had probable cause

was objectively reasonable”).

To be sure, Mwangangi’s truthful answers to the officers’

questions certainly suggested that nothing suspect was afoot.

And had the officers slowed down, clarified the name of

Mwangangi’s employer, and paid closer attention to what

Mwangangi was saying, perhaps his encounter with police

would not have ended with a trip to Boone County Jail. But

26 Nos. 21-1576, 21-1577 & 21-1971

once “detectives have performed a good-faith investigation

and assembled sufficient information from the totality of the

circumstances to establish probable cause, they are not re-

quired under the Constitution to continue searching for addi-

tional evidence.” Jump, 42 F.4th at 791. After officers reasona-

bly believed that they had the information necessary to ar-

rest—based on their own collective observations and a wit-

ness interview—they had no obligation to “seek out … alleg-

edly exculpatory evidence.” Id.

In sum, the officers had at least arguable probable cause to

arrest Mwangangi for impersonating a police officer by the

time Sergeant Phelps made the formal arrest decision. The

district court erred, then, in entering summary judgment for

Mwangangi as to liability on his false arrest claim against Ser-

geant Phelps, Officer Nielsen, and Officer Noland, and that

determination is reversed.

C

We have one final issue to address in resolving the indi-

vidual officers’ appeals. Beyond the Fourth Amendment

claims we have addressed thus far, Mwangangi seeks to hold

not only Officer Root liable for the false arrest, but also the

other officers on the scene who failed to intervene to prevent

the constitutional violation created by his continued hand-

cuffing. The district court concluded that the individual offic-

ers had effectively waived any challenge to Mwangangi’s fail-

ure to intervene claims. In the court’s view, the defendants

had not argued that the bystander officers were “not suffi-

ciently involved in the alleged constitutional violation,” and

that the “undisputed evidence, viewed in the light most fa-

vorable to each of the Individual Defendants, establishes

that” Officer Noland and Officer Nielsen were personally

Nos. 21-1576, 21-1577 & 21-1971 27

involved in Mwangangi’s “unconstitutional continued hand-

cuffing.”

The Lebanon defendants’ briefing on appeal does not

tackle this finding directly—nowhere does it address the issue

of Officer Noland or Officer Nielsen’s liability for failing to

intervene to prevent Officer Root’s conduct. See, e.g., Doxtator

v. O’Brien, 39 F.4th 852, 865 (7th Cir. 2022) (“An officer who is

present and fails to intervene to prevent other law enforce-

ment officers from infringing the constitutional rights of citi-

zens is liable under § 1983 if that officer had reason to know”

that an unjustifiable arrest or other constitutional violation

has been committed and “the officer had a realistic oppor-

tunity to intervene to prevent the harm from occurring.”

(quoting Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994)).

But we are not as sure as the district court that Mwangangi

is entitled to summary judgment on those claims. In fact,

Mwangangi argued below that there were “still questions of

material fact” on this question. Because whether the by-

stander officer “had sufficient time to intervene or was capa-

ble of preventing the harm caused by the other officer is gen-

erally an issue for the trier of fact,” further factfinding on what

Officer Nielsen and Officer Noland knew about Officer Root’s

actions over the course of the evening is needed on remand.

Doxtator, 39 F.4th at 865. The district court, in short, was too

quick to enter judgment against the officer defendants, rather

than to send this claim to trial.

IV

We come now to Mwangangi’s cross appeal challenging

two aspects of the district court’s entry of summary judgment

for the defendants: first, the resolution of his Monell inventory

28 Nos. 21-1576, 21-1577 & 21-1971

search claims; and second, the district court’s determination

that the defendants are immune from his state law claims for

negligent supervision and negligent handling of property un-

der the Indiana Tort Claims Act.

A

The district court concluded that Mwangangi waived his

Monell claim based on the City of Lebanon’s inventory search

policy because “[f]rom [his] meager briefing, the [court] can-

not discern exactly what practice, beyond a generalized ‘in-

ventory search,’ is the subject of Mr. Mwangangi’s com-

plaint.” Mwangangi concedes on appeal that “‘skeletal’ argu-

ments may be properly treated as waived,” but insists that he

presented enough for the claim to be addressed on the merits.

Our review of the district court briefing turned up almost

no mention of Mwangangi’s inventory search-based Monell

claim. In his summary judgment reply brief, Mwangangi ar-

gued for the first time only that Lebanon’s “policies associ-

ated with Vehicle searches both as written and as practiced”

led to violations of his civil rights “in the form of an unrea-

sonable search.” But that was not nearly enough to warrant

the district court addressing the claim on the merits: “[a] liti-

gant who fails to press a point by supporting it with pertinent

authority, or by showing why it is a good point despite a lack

of supporting authority or in the face of contrary authority,

forfeits the point.” United States v. Giovannetti, 919 F.2d 1223,

1230 (7th Cir. 1990).

We therefore see no error in the district court’s entry of

summary judgment for the City on this claim.

Nos. 21-1576, 21-1577 & 21-1971 29

B

The second aspect of Mwangangi’s cross-appeal chal-

lenges the district court’s entry of summary judgment on cer-

tain (often poorly defined) state law claims arising from “neg-

ligence resulting in damage” to his Crown Victoria “during or

as a result of the police encounter and arrest” and the “unrea-

sonable and negligent retention of plaintiff’s personal prop-

erty (phone and tablet) seized in relationship to the police en-

counter/arrest.” He also adds a negligent training and super-

vision overlay to the vehicle search claim. Based on our re-

view, however, the district court was right to conclude that

the Indiana Tort Claims Act shields the individual officers

and the City from liability on these claims. See Bushong v. Wil-

liamson, 790 N.E.2d 467, 472 (Ind. 2003) (explaining that the

ITCA “governs lawsuits against political subdivisions and

their employees” and “provides substantial immunity for

conduct within the scope of the employee’s employment”).

Under Section 34-13-3-3(8) of the Act, “[a] governmental

entity … is not liable if a loss results from” the “adoption and

enforcement of” a law, rule, or regulation, unless “the act of

enforcement constitutes false arrest or false imprisonment.”

Mwangangi contends that the inventory search of his vehicle

and retention of his property pursuant to a warrant were not

“law enforcement” activities, but that does not hold up to

even the slightest level of scrutiny. Indiana law vests law en-

forcement with responsibility for the retention of personal

property seized during the execution of a search warrant. See

Ind. Code § 35-33-5-5 (setting out procedures governing re-

tention and return of “[a]ll items of property seized by any

law enforcement agency as a result of an arrest, search war-

rant, or warrantless search”).

30 Nos. 21-1576, 21-1577 & 21-1971

These same principles apply to the inventory search of

Mwangangi’s Crown Victoria. These types of searches hap-

pen all day every day across the country—performed in large

part to protect private property in police custody and to pro-

tect the police, themselves, from possible danger and from

claims of lost or stolen property. See Taylor v. State, 842 N.E.2d

327, 330–31 (Ind. 2006). That the impoundment of a car and a

subsequent inventory search are part of the police’s “admin-

istrative or caretaking function rather than a criminal investi-

gatory function” means only that “the policies underlying the

Fourth Amendment warrant’s requirement are inapplicable.”

Fair v. State, 627 N.E.2d 427, 430 (Ind. 1993). It does not, as

Mwangangi presses, mean that police are acting outside of the

scope of their law enforcement duties when doing an inven-

tory of a vehicle.

As a result, the officers and the City are protected from

state tort liability under the law enforcement exemption in

§ 34-13-3-3(8) as to Mwangangi’s claims of negligence in per-

forming the inventory of his car and retaining his property,

even if (as Mwangangi alleges) officers deviated from depart-

mental policy while doing so. See, e.g., City of Anderson v.

Weatherford, 714 N.E.2d 181, 185–86 (Ct. App. Ind. 1999) (con-

cluding that officers’ conduct while arresting the plaintiff pur-

suant to a valid arrest warrant did not “serve[] to remove

them from the cover of the Tort Claims Act,” even where the

officers disregarded a supervisor’s instructions and standard

departmental procedures); Serino v. Hensley, 735 F.3d 588, 595

(7th Cir. 2013) (explaining that § 34-13-3-(8) covers even police

“who engage in allegedly egregious conduct” while carrying

out legitimate police activity).

Nos. 21-1576, 21-1577 & 21-1971 31

Finally, the district court’s Rule 54(b) partial final judg-

ment references Mwangangi’s state law failure to train claim

against the City relating to the officers’ performance of the in-

ventory search. But we do not see any argument regarding

this claim in Mwangangi’s briefing, and so we consider it

waived. See Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir.

2012) (“[E]ven arguments that have been raised may still be

waived on appeal if they are underdeveloped, conclusory, or

unsupported by law.”).

* * *

For these reasons, the district court’s Rule 54(b) partial fi-

nal judgment, the basis of Mwangangi’s cross-appeal, number

21-1971, is AFFIRMED. The district court’s summary judg-

ment opinion—the basis of appeals 21-1576 and 21-1577—is

AFFIRMED in part and REVERSED and REMANDED in part

as follows:

1. Entry of partial summary judgment for

Mwangangi is AFFIRMED against Officer

Blayne Root as to the false arrest and against

Officer Frank Noland as to the second pat

down.

2. Entry of partial summary judgment for

Mwangangi is REVERSED as to the chal-

lenge to Officer Blayne Root’s pat down and

as to the alleged false arrest by Officer Taylor

Nielsen, Officer Frank Noland, and Sergeant

Ben Phelps.

3. Entry of partial summary judgment for

Mwangangi against Officer Taylor Nielsen

and Officer Frank Noland based on their

32 Nos. 21-1576, 21-1577 & 21-1971

alleged failure to intervene is VACATED and

these theories of liability are REMANDED.

Nos. 21-1576, 21-1577 & 21-1971 33

EASTERBROOK, Circuit Judge, concurring. I join the court’s

opinion and add an observation about one of plaintiff’s legal

theories.

Mwangangi contends that Noland and Nielsen are liable

under 42 U.S.C. §1983 because they did not intervene to pre-

vent Root from arresting him. He does not explain why. What

statute or constitutional rule requires one employee of the gov-

ernment to stop another from making a mistake? The Su-

preme Court has held many times that §1983 supports only

direct, and not vicarious, liability. See, e.g., Ashcroft v. Iqbal,

556 U.S. 662, 676–77 (2009); Monell v. New York City Department

of Social Services, 436 U.S. 658 (1978). “Failure to intervene”

sounds like vicarious liability. Mwangangi contends that Root

violated the Fourth Amendment by arresting him without

probable cause. If Noland and Nielsen participated in the ar-

rest, they, too, may have violated the Fourth Amendment. But

if, however, all they did was stand by while Root made an

arrest, then what Mwangangi seeks is vicarious liability.

Many a plaintiff contends that the Constitution requires

public employees to act for their protection. Yet DeShaney v.

Winnebago County Department of Social Services, 489 U.S. 189

(1989), holds that our Constitution establishes negative liber-

ties—the right to be free of official misconduct—rather than

positive rights to have public employees protect private inter-

ests. See also, e.g., Castle Rock v. Gonzales, 545 U.S. 748 (2005).

So a police officer who fails to stop a municipal bus that the

officer sees being driven recklessly is not liable to a pedestrian

later struck by the careening bus. Similarly, when persons

who had been injured by soldiers’ misconduct sued the Sec-

retary of Defense, contending that the Secretary had to ensure

his subordinates’ correct behavior, we replied that this would

34 Nos. 21-1576, 21-1577 & 21-1971

amount to forbidden vicarious liability. See Vance v. Rumsfeld,

701 F.3d 193, 203–05 (7th Cir. 2012) (en banc). The wrongdoers

were personally liable, but others in the chain of command

were not.

Perhaps state law requires police officers to prevent their

fellows from violating suspects’ rights, but §1983 cannot be

used to enforce state law. Some federal statutes or constitu-

tional provisions may require public employees to render as-

sistance, and these could be enforced through §1983, because

then liability would be direct rather than derivative. But

Mwangangi has not cited any such sources of law.

Several decisions of this court say that police officers and

prison guards must intervene when they see their colleagues

acting improperly. See, e.g., Doxtator v. O’Brien, 39 F.4th 852,

865 (7th Cir. 2022). None of these decisions explains why this

theory of liability is consistent with Iqbal, Vance, and similar

decisions. Doxtator relies on Abdullahi v. Madison, 423 F.3d 763,

774 (7th Cir. 2005); Lanigan v. East Hazel Crest, 110 F.3d 467,

478 (7th Cir. 1997); and Yang v. Hardin, 37 F.3d 282, 285 (7th

Cir. 1994), all of which predate Iqbal and Vance. I suspect that

these decisions arose in much the same way as today’s quota-

tion from Doxtator (slip op. 27): the plaintiff asserts that inter-

vention is necessary, and the defendants do not provide a

substantive response. The court observes (slip op. 27) that the

Lebanon defendants’ brief “does not tackle this issue di-

rectly”; certainly it does not invoke Iqbal or Vance. (It does cite

Iqbal, but only for a point about appellate jurisdiction.) This is

how circuit law comes to diverge from decisions of the Su-

preme Court and from our own en banc decisions.

Given the principle of party presentation, see United States

v. Sineneng-Smith, 140 S. Ct. 1575 (2020), I do not disagree with

Nos. 21-1576, 21-1577 & 21-1971 35

my colleagues’ decision to remand with respect to the failure-

to-intervene theory against Noland and Nielsen. I hope, how-

ever, that litigants will not continue to allow this questionable

theory to pass in silence.

36 Nos. 21-1576, 21-1577, & 21-1971

KIRSCH, Circuit Judge, dissenting in part. I join the majority

on every issue but one. The majority affirms the denial of

qualified immunity to Officer Blayne Root, holding that he

lacked even arguable probable cause to believe Daudi

Mwangangi had violated Indiana’s police impersonation law

at the time he handcuffed Mwangangi. On this narrow issue,

I disagree. Given the totality of what Officer Root knew at the

time of the handcuffing and the lack of any clearly established

law on what constitutes probable cause under Indiana’s foggy

police impersonation statute, I would hold that Root had ar-

guable probable cause to believe Mwangangi had violated the

statute.

Here’s what Officer Root knew when he handcuffed

Mwangangi: At about 9:50 pm on an October Saturday night,

Officer Root received a message from Boone County Dispatch

advising that a possible police impersonator was traveling

westbound on I-865 and approaching I-65 North in a blue

Crown Victoria (a common type of police cruiser) with strobe

lights and the license plate number SR393. Another dispatch

message notified Officer Root of a possible impersonator in an

unmarked Crown Victoria at a Speedway gas station in Leba-

non, Indiana “with a vehicle pulled over.” When Officer Root

arrived at the gas station, he pulled up to the left of Officer

Taylor Nielsen and behind Mwangangi’s vehicle, which

matched the Crown Victoria description and had the same li-

cense plate as reported in the dispatch. As a result, he con-

cluded that the officers “had the vehicle” in question. After

Officer Nielsen asked Mwangangi to exit the vehicle, Officer

Root asked him if he had any weapons and Mwangangi said

no. Officer Root then proceeded to pat down Mwangangi for

weapons. Although the pat down yielded no weapons, Officer

Root handcuffed Mwangangi.

Nos. 21-1576, 21-1577 & 21-1971 37

The majority emphasizes how little Officer Root knew and

cites an admission in his deposition that he lacked any details

“relating to any specific activity associated with the Crown

Victoria that represented illegality other than the conclu-

sion[.]” Supra at 19. But that statement requires context. Of-

ficer Root testified that he did not have “any specific memory

of anything specific” he observed at Mwangangi’s vehicle. Of-

ficer Root was not retracting his earlier testimony about the

specifics that he learned from the dispatch calls or his belief

that police had the matching Crown Victoria when he pulled

up to the gas station.

In my view, an officer in Officer Root’s position could have

reasonably, if mistakenly, believed that there was probable

cause that Mwangangi had committed the impersonation of-

fense. See Fleming v. Livingston Cnty., Ill., 674 F.3d 874, 880 (7th

Cir. 2012) (police officers are “entitled to qualified immunity

in a false-arrest case when, if there is no probable cause, a rea-

sonable officer could have mistakenly believed that probable

cause existed.” (citations omitted)). Indiana makes it a felony

offense to falsely represent oneself as a police officer with the

intent to deceive or to induce compliance with one’s instruc-

tions, orders, or requests. Ind. Code 35-44.1-2-6. There are no

Indiana cases that I could find addressing what probable

cause looks like under Indiana’s impersonation law (and we

have not taken up the issue either), let alone anything that

would clearly dictate to Officer Root that the information he

possessed was insufficient under the statute. See Holloway v.

City of Milwaukee, 43 F.4th 760, 767 (7th Cir. 2022) (“The un-

lawfulness of challenged conduct is ‘clearly established’ only

if it is dictated by controlling authority or a robust consensus

of cases of persuasive authority, such that it would be clear to

a reasonable officer that his conduct was unlawful in the

38 Nos. 21-1576, 21-1577, & 21-1971

situation he confronted.” (citation omitted and cleaned up)).

Without any clearly established guidance from a court, or

simply anything addressing a situation analogous to the one

Officer Root confronted here, I do not agree that no reasonable

officer in Root’s situation could conclude that there was prob-

able cause.

The majority warns that my conclusion “risks conflating

the authority justifying the initial Terry stop with the author-

ity to arrest.” Supra at 20. While I agree that we must be care-

ful not to muddy the waters on the level of suspicion required

for constitutionally distinct seizures, there are cases where the

information that supports reasonable suspicion also supplies

arguable probable cause. This is one of them. Root knew that

an unmarked Crown Victoria (not a tow truck) was driving

on the interstate at night with strobe lights on, that the same

vehicle may have pulled someone over at the gas station, and

that the vehicle matched the description and license plate

number dispatch provided.

I am not suggesting that Officer Root’s actions were model

officer conduct. He could have slowed down and taken fur-

ther steps to confirm his suspicions before placing

Mwangangi in handcuffs. But qualified immunity shields “all

but the plainly incompetent or those who knowingly violate

the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). And oper-

ating without any clearly established law, I conclude that an

officer in Officer Root’s position could have reasonably, if er-

roneously, believed that he had probable cause. For these rea-

sons, I respectfully dissent.