# Colbert v. City of Chicago > Court of Appeals for the Seventh Circuit · March 14, 2017 · 851 F.3d 649 URL: https://www.frixlaw.com/law-library/cases/8414561 ## Case - **Full name:** Christopher COLBERT and Jai Crutcher v. CITY OF CHICAGO - **Court:** Court of Appeals for the Seventh Circuit - **Decided:** March 14, 2017 - **Citations:** 851 F.3d 649; 2017 U.S. App. LEXIS 4486; 2017 WL 985832 - **Precedential status:** Published - **Opinion:** Concurring in part by Hamilton - **Judges:** Bauer, Flaum, Hamilton - **Cited by:** 849 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8414561 ## How later opinions describe it (automated extraction) - holding that the plaintiff was “unable to satisfy § 1983’s personal-responsibility requirement at summary judgment” where “he was unable to identify which of the … searching officers had caused the alleged property damage because he was not allowed in the rooms while the offic… - finding that warden and director of food services could not be held liable under § 1983 because they "did not know that the inmates were being deprived of adequate nutrition and were not personally involved in delivering the purportedly deficient meals" - holding that the plaintiff could allege under § 1983 that "the named officers participated in something akin to a 'conspiracy of silence among the officers' in which defendants refuse to disclose which of their number has injured the plaintiff" - concluding plaintiff could not satisfy personal responsibility component of § 1983 because he could not "identify which of the ten searching officers had caused the alleged property damage because he was not allowed in the rooms while the officers conducted their search" - affirming summary judgment for defendants and noting in dicta that allegations against four officers from the same department for committing the distinct act of damaging property might have been sufficient to defeat a motion to dismiss earlier in the case ## Opinion text HAMILTON, Circuit Judge, concurring in part and dissenting in part. I agree with my colleagues that we should affirm summary judgment for defendants on the search of Colbert’s person and bedroom (Part II-B-1) and the false arrest claim (Part II-C). I respectfully dissent, however, from the decision to affirm summary judgment on Crutcher’s malicious prosecution claim (Part II-A) and Colbert’s property damage claim (Part IIB-2). Plaintiffs have raised genuine issues of material fact regarding these two claims. The factual account provided by Crutcher and Colbert may or may not be true, but that question is not before us. On appeal from summary judgment, we must treat their evidence as true and give them the benefit of reasonable inferences from the evidence. Georgia-Pacific Consumer Prods. LP v. Kimberly-Clark Corp., 647 F.3d 723, 727 (7th Cir. 2011). Plaintiffs’ evidence tells a disturbing story. Crutcher and Colbert describe a scene where, in the early morning hours of March 31, 2011, officers taunted and terrorized them and their families while destroying their home. Their testimony describes in detail how officers threatened them, cursed them, and struck them. They recount the fright of their children as officers broke holes in the walls, cut open a couch, tore doors off of cabinets, and more. They even describe an officer who unhol-stered his firearm and threatened to shoot Crutcher’s six-week-old puppy before leaving the dog outside, where it was lost. 1 This case raises larger questions about how courts should address claims of law enforcement misconduct. These questions are particularly pressing for members of our community, like plaintiffs, who are more likely to experience such misconduct. Crutcher and Colbert are black men. It’s no secret that people of color are disproportionately subject to police misconduct. See Utah v. Strieff, 579 U.S. -, -, 136 S.Ct. 2056, 2070 , 195 L.Ed.2d 400 (Sotomayor, J., dissenting); U.S. Dep’t of Justice Civil Rights Division & U.S. Attorney’s Office Northern District of Ill., Investigation of the Chicago Police Department 145 (Jan. 13, 2017) (finding that Chicago Police Department “has tolerated racially discriminatory conduct that not only undermines police legitimacy, but also contributes to [a] pattern or practice of unreasonable force”). Part I addresses Colbert’s claim'for property damage based on unreasonable execution of the search. Part II addresses Crutcher’s claim for malicious prosecution. I. ' Colbert’s Property Damage Claim A. Unreasonable Execution of the Search This first issue stems from the combination of the regime of individual liability under 42 U.S.C. § 1983 and a reasonable but intrusive police practice to ensure safety during searches of homes: securing residents where they cannot interfere with, but also cannot see, the execution of the search. See Michigan v. Summers, 452 U.S. 692 , 101 S.Ct. 2587 , 69 L.Ed.2d 340 (1981). “Excessive or unnecessary destrue *662 tion of property in the course of a search may violate the Fourth Amendment, even though the entry itself is lawful and the fruits of the search are not subject to suppression.” United States v. Ramirez, 523 U.S. 65, 71 , 118 S.Ct. 992 , 140 L.Ed.2d 191 (1998); see also Johnson v. Manitowoc County, 635 F.3d 331, 335 (7th Cir. 2011); Green v. Butler, 420 F.3d 689, 694-95 (7th Cir. 2005); Lawmaster v. Ward, 125 F.3d 1341 , 1349-50 & n.3 (10th Cir. 1997) (reversing summary judgment in part; searching officers left plaintiffs gun in dog’s water bowl and left cigar and cigarette ashes in his bedding). The problem is, if officers carry out a search in an unreasonable way, causing unnecessary or excessive destruction, how can the residents and ultimately courts hold accountable the individual officers responsible for the misconduct? The majority concludes that Colbert cannot reach a jury with his property damage allegations because he cannot identify who broke what. Colbert is unable to do this because the officers handcuffed him and prevented him from observing the search. Ante at 657. The majority emphasizes that Colbert did not sue every officer at the scene, noting that it is possible none of the named defendants are responsible for the damage. Ante at 658. Things might have been different, the majority says, if Colbert had alleged a “conspiracy of silence” in his complaint. While I am pleased that the majority offers a solution for the problem, its solution sets too high a bar for plaintiffs in Colbert’s situation. First, this is not a pleading deficiency. A plaintiff is not required to plead legal theories in his complaint. King v. Kramer, 763 F.3d 635, 642 (7th Cir. 2014) (“A complaint need not identify legal theories, and specifying an incorrect theory is not a fatal error.”), quoting Rabé v. United Air Lines, Inc., 636 F.3d 866, 872 (7th Cir. 2011). This rule makes sense, particularly in a case like this. When Colbert filed his original complaint, he did not know the officers would deny any recollection of breaking his. property. At that time there was no “conspiracy of silence” to allege. The majority notes that Colbert did not allege a conspiracy of silence in his second amended complaint, which he filed after learning that the officers denied responsibility. Ante at 658. That’s true but it shouldn’t matter. A plaintiff is not required to plead legal theories in his second amended complaint either. (In any event, if we are going to insist that these matters be in the pleadings, then district courts will need to be liberal in allowing amendments along these lines. See Fed. R. Civ. P. 1 & 15(a)(2).) During their depositions, the officers claimed they did not remember many of the events from March 31, 2011. Since those depositions, Colbert has argued quite clearly in the district court, Dkt. No. 75 at 14-15, and in this court that the officers are conspiring to deny their wrongdoing. Colbert’s brief here argues: “For example, defendants Tweedle and Johnson will, if they testify in accordance with their deposition testimony, admit to having been present but will deny any recollection of the search of Colbert’s residence .... At trial, plaintiffs expect each defendant to deny wrongdoing; the jury should be permitted to assess the credibility of these claims.” It is unclear what else Colbert should have said to assert a “conspiracy of silence.” 2 *663 Second, by dismissing Colbert’s claim because he did not sue enough officers, see ante at 658-59, the majority invites future plaintiffs to sue every officer on the scene and to sort out later the issues of individual liability. This will needlessly drag law enforcement officers into litigation where they had little or no involvement in the underlying conduct. Suppose Colbert had sued all ten officers and all ten denied participating in the specific acts of property destruction. Those denials, combined with evidence that the damage occurred and was inflicted in the course of the search, would be circumstantial evidence permitting a reasonable inference that there was a conspiracy of silence among the officers. In light of this decision, plaintiffs in similar cases will be well-advised to pursue that approach. There is at least one better approach in cases like this — cases where a plaintiff offers evidence that officers acted unreasonably in the search and took steps to prevent the plaintiff from identifying who caused the damage. It would be to shift the burden of production to the defendants on the issue of individual responsibility. The majority refers to this approach, ante at 658-59, and other circuits have used this method to varying degrees. When faced with a similar situation where officers masked- their identities, the Sixth Circuit permitted the district court to shift the burden of production on remand: “Although an officer’s mere presence at the scene of a search is insufficient to establish individual liability under § 1983, here the agents’ intent to conceal contributed to plaintiffs’ impaired ability to identify them.” Burley v. Gagacki, 729 F.3d 610, 622 (6th Cir. 2013) (citations omitted); see also Burley v. Gagacki, 834 F.3d 606, 615 (6th Cir. 2016) (later appeal clarifying that even if burden of production is shifted to defendant, plaintiff still has burden of persuasion). The Ninth Circuit likewise has used burden-shifting in certain instances where plaintiffs cannot learn the identity of the officers involved. See, e.g., Dubner v. City and County of San Francisco, 266 F.3d 959, 965 (9th Cir. 2001) (“Although the plaintiff bears the burden of proof on the issue of unlawful arrest, she can make a prima facie case simply by showing that the arrest was conducted without a valid warrant. At that point, the burden shifts to the defendant to provide some evidence that the arresting officers had probable cause for a warrantless arrest. The plaintiff still has the ultimate burden of proof, but the burden of production falls on the defendant.”); Johnson v. BART, 724 F.3d 1159, 1173 (9th Cir. 2013) (holding that burden-shifting approach applies only where officers are required to show probable cause). Here, Colbert offers evidence that the officers carried out their search in an unreasonable way, causing a great deal of unnecessary damage. He cannot identify which officers broke which items because he was restrained. I am not criticizing the police practice of preventing residents from interfering with an otherwise lawful search. That will often make sense for everyone’s safety. But where the police, for these presumably legitimate reasons, made it impossible for the residents to know which individual officers carried out which actions, the burden of production should shift to these four defendants. If a defendant seeks summary judgment, he *664 must present evidence that he is not personally liable for the unreasonable search, either by identifying who caused the damage or through some other means. Otherwise, the matter should proceed to trial so a jury can evaluate credibility. At trial, Colbert would still have the ultimate burden of persuasion. This burden-shifting approach would retain the regime of individual responsibility under § 1983 without resorting to what the majority calls “collective punishment.” See ante at 658-59. This approach is only a procedural adjustment, shifting the burden of production based on the defendants’ own actions when they act together. The burden of persuasion would still remain with the plaintiff. I would welcome better solutions to this problem, but a solution is needed. This burden-shifting approach would fit with the requirement of personal responsibility without interfering with officers’ ability to restrain occupants so they can conduct safe and effective searches. It would also prevent the unjust effect of allowing officers to sequester residents and then destroy a home with impunity. B. Failure to Intervene Colbert also provided sufficient evidence to support liability for each of the four defendants for an unreasonable search on a theory of failure to intervene. It is well established that an officer may be liable if she witnesses another officer violating a civilian’s constitutional rights, has a reasonable opportunity to intervene, and fails to do so. See, e.g., Miller v. Smith, 220 F.3d 491 (7th Cir. 2000) (“An official satisfies the personal responsibility requirement of § 1983 if she acts or fails to act with a deliberate or reckless disregard of the plaintiffs constitutional rights.”), citing Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir. 1982) (emphasis .in original). Miller is instructive. A motorist sued under § 1983 for excessive use of force, among other claims. He alleged that state police officers beat him while he was handcuffed, face down on the ground. As we explained, the district court granted summary judgment for the defendants “because Miller could neither identify the officer who allegedly attacked him, or otherwise support his claim with sufficient facts.” Id. at 493. We reversed. We noted that if one of the officers was beating Miller, “whichever officer was not directly responsible for the beating was idly standing by.” Id. at 495. We concluded: “If Miller can show at trial that an officer attacked him while another officer ignored a realistic opportunity to intervene, he can recover.” Id. We should take the same approach to Colbert’s claim for an unreasonable search. Colbert claims that, at minimum, the four officers failed to intervene when their fellow officers searched his home in an unreasonable manner. The majority notes that Colbert did not observe the officers failing to intervene. Ante at 659-60. But we did not require such evidence in Miller . Even though Miller did not observe the officers failing to intervene during his beating (he was face down), it was sufficient that the other officers were “nearby.” Miller, 220 F.3d at 495 . The same is true here. The majority claims that Colbert has failed to “identify any officer ... who turned a blind eye to other officers’ allegedly illegal actions.” Ante at 660. But Colbert has identified four individual officers and provided evidence of their failure to act. As the officers, themselves testified, Colbert’s home was “a very small residence” with only a few rooms. According to testimony, the officers’ search was incredibly loud and disruptive, as one might expect when doors are torn from their *665 hinges. The four defendants were necessarily close to any other officers in the home, and they failed to intervene. We required no more in Miller . We should require no more here. Defendants may argue, of course, that they did not notice their colleagues in the next room putting holes in the walls. The plausibility of that argument should be a jury issue. II. Crutcher’s Malicious Prosecution Claim Plaintiff Crutcher sued under state law for malicious prosecution. Crutcher testified that Officer Willingham falsely reported that he had confessed to knowing there was a shotgun in the closet of Colbert’s locked bedroom. According to Crutcher, Officer Willingham lied in the arrest report because Crutcher was unable to provide inside information about a gang. Crutcher described a series of exchanges where Willingham asked for gang intelligence, grew angry when Crutcher was unable to give any tips, and then threatened “if you don’t give me the information I want, [you’re] going down for the rest of your life.” This evidence supports an inference of malice, in my view, and the majority does not disagree. The majority rejects Crutcher’s claim, however, on the theory that even if Officer Willingham did lie, the grand jury indictment broke the chain of causation between his lie and Crutcher’s prosecution. Ante at 655. I disagree, at least for purposes of summary judgment. A. Grand Jury Indictment and Chain of Causation First, the “broken chain of causation” cases show that an officer who wrongly arrests is not necessarily liable for the later decision to maliciously prosecute. I agree. The bad actor in a false arrest is pot necessarily the same as in a malicious prosecution. See Reed v. City of Chicago, 77 F.3d 1049, 1053 (7th Cir. 1996) (“[T]he State’s Attorney, not the police, prosecutes a criminal action.”). In this case, however, the claim is based not on a wrongful arrest but on Willing-ham’s alleged lie after the arrest in the arrest report. Crutcher’s claim is that after the officers arrested him, Willingham took malicious steps to ensure his prosecution. This claim fits squarely within the rule the majority cites from Reed : “the chain of causation is broken by an indictment, absent an allegation of pressure or influence exerted by the police officers, or knowing misstatements by the officers to the prosecutor.” Ante at 655, citing Reed, 77 F.3d at 1053 (emphasis altered). There is evidence that Willingham acted to influence the prosecution by lying in the report after Crutcher’s arrest. Second, as a practical matter, the majority never confronts the implausibility of its assumption. According to the majority, the prosecutor never told the grand jury about' Crutcher’s alleged admission in the arrest report. That is, the prosecutor seeking the indictment for knowing possession of a firearm that was found in someone else’s locked bedroom never presented the grand jury with information that Crutcher had confessed he knew the gun was in the home. On this record, Officer Willingham’s arrest report was the prosecutor’s only evidence that Crutcher knew about the gun in Colbert’s bedroom closet. I find it difficult to believe that a competent prosecutor would fail to present this evidence to a grand jury. At the very least, we should not make such an improbable assumption in favor of the defense in reviewing summary judgment for the defense. B. Absence of Probable Cause Since the majority disposes of Crutch-er’s claim based on the grand jury indictment, it does not reach the defendants’ *666 argument that there was probable cause to prosecute Crutcher for knowing possession of the shotgun. This argument also should fail. Crutcher’s evidence would let a jury-find that he was prosecuted without probable cause. The charges against Crutcher required proof that he knew a firearm was in the home. He claims he did not know about the gun in the closet of Colbert’s locked bedroom. Officer Willingham claims that Crutcher confessed to knowing. Crutcher testified he did not confess as much. This conflicting evidence presents a genuine issue of material fact. Defendants also argue that, even without Officer Willingham’s alleged lie, there was probable cause that Crutcher knew about the gun. They argue that a tipster told Willingham that he saw Crutcher holding the two guns in the home. This tip was then corroborated, defendants claim, when the officers found one specific gun (the shotgun) and the holster for the other gun that the tipster had mentioned. The majority seems to take the tip as undisputed fact, but the tip should not defeat summary judgment for three reasons. First, as the district court noted, there are significant problems with Will-ingham’s testimony on the tipster. “Officer Willingham failed to provide any details about the purported reliability of the informant, despite fervent questioning by Plaintiffs counsel.” The district court thus decided to treat the cooperating individual as an anonymous tipster, and to give the statements less weight. Second, there is a credibility issue as to which came first, the search or the supposed tip. We have no record of the tip before the search. Even Willingham’s arrest report did not mention it. The first mention apparently came in Willingham’s deposition. Thus, based on the record before us, Willingham never claimed there was a tip about seeing Crutcher with the guns until after he was sued. Third, as if those problems were not enough, Crutcher’s testimony conflicts with Willingham’s account of the tip about guns. According to Crutcher, when the officers first arrived they were searching not for guns but for drugs. Crutcher testified that when Willingham entered the home, he used slang for drugs to ask first: ‘Where’s the diesel?” Willingham said he had received a tip “that y’all had some drugs,” and he accused Crutcher of flushing them down the toilet. As the officers went through the house, they further indicated that they were looking for drugs, for instance by searching through the sugar in the kitchen. According to Crutcher, the officers did not mention guns until the end of the search. Viewing the evidence through a summary judgment lens favorable to plaintiffs, then, the police and prosecution had no evidence that Crutcher knew about the shotgun and holster found upstairs in Colbert’s locked bedroom. Crutcher should be able to present his claim for malicious prosecution to a jury. . In addition to the property damage discussed by the majority, ante at 652-53, plaintiffs describe the officers damaging clothing, a weight bench, the basement door, the steps, bedroom dressers, and an electronic tablet. Crutcher testified that officers dismantled his stereo and television, damaging them in the process, and that officers destroyed photographs of his grandmother, leaving them "balled up” and covered in dog feces. . In Molina v. Cooper, 325 F.3d 963, 974 (7th Cir. 2003), and Hessel v. O'Hearn, 977 F.2d 299, 305 (7th Cir. 1992), we used the verb "allege” in discussing the possibility that a conspiracy of silence could shift the burden of production. Appellate opinions would be clearer if courts always took care to distinguish between what parties "allege” (in *663 pleading), "testify” (in evidence), and “argue” or "contend” (in briefs and oral argument). Unfortunately, courts do not always keep those verbs separate. Nothing in Molina or Hessel indicates that the panels were suggesting a new pleading requirement, which in any event would be difficult to justify in light of more general pleading standards. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8414561. Public record. Not legal advice.