Davin Green v. Jonathon Newport
Filed opinion of the court by Judge Bauer. We reverse the district court s denial of Officer Newport s motion for summary judgment on qualified immunity grounds, and direct the court to grant the motion. William J. Bauer, Circuit Judge; Michael S. Kanne, Circuit Judge and Gary Feinerman, District Court Judge. [6863359-1]  [16-1536]
United States Court of Appeals
For the Seventh Circuit
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:15-cv-00786-DEJ — David E. Jones, Magistrate Judge.
ARGUED NOVEMBER 9, 2016 — DECIDED AUGUST 22, 2017
Before BAUER and KANNE, Circuit Judges, and FEINERMAN,*
BAUER, Circuit Judge. On November 26, 2014, around
8:30 p.m., Officer Jonathon Newport of the Milwaukee Police
Of the United States District Court for the Northern District of Illinois,
sitting by designation.
Department and his partner, Officer Busshardt, responded to
a suspicious person complaint made by an employee of the
O’Reilly Auto Parts store in Milwaukee, Wisconsin.1 A dispatcher told Officer Newport that a Mercury Grand Marquis
drove around the store’s parking lot about five times. Officer
Newport believed this behavior was consistent with “casing”
a business in preparation for a robbery. He knew that this store
had been robbed within the last two months and that firearms
were brandished in the course of the robbery. Officer Newport
was also aware that the store closed at 9 p.m. and would soon
Officer Newport drove to the parking lot, and observed a
Mercury Marquis in a stall in front of the store about thirty feet
from its entrance. An overhead parking lot lamp was next to
and south of the Mercury Marquis. A Chevrolet Malibu, driven
by Davin Green, was parked next to the Marquis. According to
Officer Newport, Joe Lindsey, the driver of the Marquis, stood
outside the driver’s door of his vehicle, next to the front
passenger door of the Malibu. Also according to Officer
Newport, Lindsey leaned into the front passenger window of
the Malibu for a few moments and stood back up. Officer
Newport testified that he suspected that Lindsey had concealed a weapon when leaning into the Malibu and decided to
investigate further. Green disputes that Lindsey stood outside
the driver’s door of his vehicle, next to the passenger door of
We accept the factual background set forth by the district court, which
was based on the undisputed portions of the parties’ proposed findings of
fact, stipulated facts developed at oral argument, and the transcript at the
the Malibu, and also that Lindsey ever leaned into the front
passenger window of the Malibu.
Officer Newport activated his squad car’s emergency lights
and stopped behind the Marquis. The officers told Lindsey and
Green to put up their hands. Officer Newport approached
Green and asked if Green had any weapons; Green replied
“no.” Officer Newport then directed Green to exit the vehicle.
Officer Newport’s account of what happened next is
disputed by Green: Officer Newport said that when Green
exited his vehicle, his right arm was kept tight to his body
while his left swung freely and that after asking Green to raise
his arms out “like an airplane,” Green raised only his left arm.
Officer Newport grabbed Green’s right wrist to force his right
arm up, but Green resisted. Officer Newport grabbed Green’s
right wrist to position his arm and proceeded to pat him down
and discovered a handgun in Green’s waistband.
Green sued Officer Newport and the City of Milwaukee
claiming under 42 U.S.C. §§ 1983 and 1988 they violated his
right to be free from unreasonable searches and seizures; that
Officer Newport conducted the stop and frisk without reasonable suspicion. The parties filed cross-motions for summary
judgment. The court ruled that the investigatory stop violated
a clearly established constitutional right, and denied qualified
immunity. Officer Newport timely appealed.
We have interlocutory jurisdiction over a district court’s
denial of summary judgment on qualified immunity grounds.
Gibbs, 755 F.3d at 535. We consider such appeals to the extent
that the defendant public official presents an “abstract issue of
law[,]” such as “whether the right at issue is clearly established
or whether the district court correctly decided a question of
law[.]” Huff v. Reichert, 744 F.3d 999, 1004 (7th Cir. 2014)
(citations omitted). We review a district court’s qualified
immunity determination de novo. D.Z. v. Buell, 796 F.3d 749, 753
(7th Cir. 2015) (citation omitted).
B. Qualified Immunity Framework
“The doctrine of qualified immunity shields officials from
civil liability so long as their conduct ‘does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.’” Mullenix v. Luna, 136
S. Ct. 305, 308 (2015) (quoting Pearson v. Callahan, 555 U.S. 223,
231 (2009)). “Qualified immunity balances two important
interests—the need to hold public officials accountable when
they exercise power irresponsibly and the need to shield
officers from harassment, distraction, and liability when they
perform their duties reasonably.” Pearson, 555 U.S. at 231. “The
defense provides ‘ample room for mistaken judgments’ and
protects all but the ‘plainly incompetent and those who
knowingly violate the law.’” Wheeler v. Lawson, 539 F.3d 629,
639 (7th Cir. 2008) (quoting Hunter v. Bryant, 502 U.S. 224, 227
To overcome a defendant’s invocation of qualified immunity, a plaintiff must show: “(1) that the official violated a
statutory or constitutional right, and (2) that the right was
‘clearly established’ at the time of the challenged conduct.”
Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (citation omitted). “If
either inquiry is answered in the negative, the defendant official
is entitled to summary judgment.” Gibbs, 755 F.3d at 537.
Courts are free “to exercise their sound discretion in deciding
which of the two prongs of the qualified immunity analysis
should be addressed first in light of the circumstances in the
particular case at hand.” Pearson, 555 U.S. at 236. Because the
answer to this inquiry is dispositive, we address only whether
the right at issue was clearly established.
The plaintiff bears the burden of demonstrating that a right
was clearly established at the time the alleged violation
occurred. Kiddy–Brown v. Blagojevich, 408 F.3d 346, 359 (7th Cir.
2005). For a right to be clearly established, “existing precedent
must have placed the statutory or constitutional question
beyond debate.” Mullenix, 136 S. Ct. at 308 (citation omitted).
The right must be “sufficiently clear that every reasonable
official would understand that what he is doing violates that
right.” Id. (citation and quotation marks omitted).
The Supreme Court has instructed that “clearly established
law should not be defined at a high level of generality.” White
v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam) (citation and
quotation marks omitted). While a case directly on point is not
required, “the clearly established law must be ‘particularized’
to the facts of the case.” Id. at 551 (citation omitted). The Court
has found that “[s]uch specificity is especially important in the
Fourth Amendment context, where … ‘it is sometimes difficult
for an officer to determine how the relevant legal doctrine …
will apply to the factual situation the officer confronts.’”
Mullenix, 136 S. Ct. at 308 (citation and alterations omitted).
In this case, the district court concluded that Officer
Newport conducted an investigatory stop based solely on a
“suspicious person” report, and in doing so violated Green’s
clearly established Fourth Amendment right and that Officer
Newport was therefore not entitled to qualified immunity.
Officer Newport argues that the district court erred
by defining Green’s Fourth Amendment right without the
requisite specificity. He further argues that the case law relied
upon by the district court is factually dissimilar to the facts in
this case, and the court failed to demonstrate that Green’s
Fourth Amendment rights were clearly established. We agree.
The Fourth Amendment prohibits unreasonable searches
and seizures, but police may conduct an investigatory stop of
an individual when the officer has reasonable suspicion that a
crime may be afoot. Terry v. Ohio, 392 U.S. 1, 21–22 (1968). Such
stops, referred to as Terry stops, need not be supported by
probable cause; rather, they are permissible as long as officers
have a “reasonable articulable suspicion that criminal activity
is afoot.” United States v. Riley, 493 F.3d 803, 808 (7th Cir. 2007)
While the cases relied upon by the district court establish
the contours of reasonable suspicion, they do not place
the constitutionality of Officer Newport’s conduct “beyond
debate.” In Gentry, a police officer stopped the plaintiff based
on nothing more than a dispatch report that a suspicious
person was pushing a wheelbarrow, which is not in and of
itself a crime. 597 F.3d at 843. In Packer, police officers stopped
a vehicle’s occupants based on a citizen’s call reporting a
suspicious vehicle parked along the street, at 1:00 o'clock in
the morning. 15 F.3d at 658. In both cases, the dispatch reports
did not provide any specific facts concerning a crime, just a
general reference to a suspicious person or vehicle. Id. at 659;
Gentry, 597 F.3d at 846. Therefore, police “lacked the minimal
detail of information that would point to any arguably particularized suspicion of criminal conduct.” Packer, 15 F.3d at 659.
In both Gentry and Packer, we found that such a generalized
“suspicious person” report, without more, was insufficient to
justify a Terry stop. Id. at 658–59; 597 F.3d at 845–46. The instant
case is easily distinguishable.
Determining whether an officer had reasonable suspicion
to support a Terry stop requires courts to examine “the totality
of the circumstances known to the officer at the time of
the stop, including the experience of the officer and the
behavior and characteristics of the suspect.” D.Z., 796 F.3d at
754 (citation omitted). At the time Officer Newport conducted
the stop, he had information that a Marquis circled the auto
parts store parking lot multiple times near the close of business. He believed that this conduct was consistent with casing
a business in order to commit a robbery. Officer Newport was
also aware that the store had been robbed within the last two
months at closing time. The Supreme Court has held that
“officers are not required to ignore the relevant characteristics
of a location in determining whether the circumstances are
sufficiently suspicious to warrant further investigation.” Illinois
v. Wardlow, 528 U.S. 119, 124 (2000); see also United States v.
Oglesby, 597 F.3d 891, 894 (7th Cir. 2010) (collecting cases).
While the prior robbery does not make this area “high crime”
per se, see Wardlow, 528 U.S. at 124, we believe it is a relevant
We recognize that there are factual disputes between Green
and Officer Newport, and that the district court refused to
credit certain factual assertions by Officer Newport. But even
construing the facts in Green’s favor, we cannot find that the
police lacked “minimal information” to warrant suspicion of
criminal conduct. The facts of Gentry and Packer are too
dissimilar to control this case, and they do not place the
constitutionality of Officer Newport’s stop beyond debate.
Green counters that, while Gentry and Packer may not have
expressly proscribed Officer Newport’s conduct, these cases
provided him “fair warning” that his conduct was unlawful.
See Hope v. Pelzer, 536 U.S. 730, 741 (2002) (finding that officers
violate clearly established law in novel factual circumstances
when precedent gives them “fair warning” that their conduct
is unconstitutional). It is not clear on what legal basis Green
asserts this argument, but as we have already concluded,
Gentry and Packer are too factually dissimilar to control this
case. The inquiry into whether a right is clearly established
“must be undertaken in light of the specific context of the case,
not as a broad general proposition.” Mullenix, 136 S. Ct. at 308
(citation omitted). Green ignores the context of the situation
which Officer Newport confronted: the auto store’s recent
robbery; the “casing” behavior reportedly carried out by the
driver of the Marquis; and the proximity to the store’s closing
hour. These facts make this case wholly distinguishable from
Gentry and Packer, in which officers lacked any information to
warrant suspicion of criminal conduct, and consequently these
cases cannot provide Officer Newport “fair warning” that his
conduct was unlawful. Accordingly, the district court erred in
its determination that Officer Newport’s Terry stop violated
clearly established law, and we find that Officer Newport is
entitled to qualified immunity.
We briefly address whether Officer Newport is entitled to
qualified immunity on Green’s challenge to the lawfulness of
Officer Newport’s frisk. Our cases recognize that a reviewing
court must analyze a frisk separately from an initial stop.
United States v. Williams, 731 F.3d 678, 683 (7th Cir. 2013). An
officer performing a Terry stop may not automatically frisk the
individual subject to the stop; the officer must have some
articulable suspicion that the subject is “armed and dangerous.” Arizona v. Johnson, 555 U.S. 323, 327 (2009).
Green has the burden of demonstrating that the frisk
violated a clearly established law. See Kiddy–Brown, 408 F.3d
at 359. Green relies on the same cases that he relied upon for
his Terry stop analysis. As we stated above, much of this
precedent is factually inapposite or simply irrelevant; Gentry
is the only relevant case. However, in Gentry, we found that the
police officers lacked any basis for their belief that the plaintiff
was concealing a weapon or posed a danger to others, and
therefore found the frisk unconstitutional. 597 F.3d at 847–48.
Importantly, Officer Newport knew that the prior attack on
the store involved a weapon so he had reason to suspect that
when Lindsey leaned into the Malibu he was concealing a
weapon in Green’s vehicle.
We note that, viewing the facts in the light most favorable
to Green, Officer Newport did not see Lindsey stand next to
the front passenger door of Green’s Malibu and did not see
Lindsey lean into the Malibu’s front passenger window.
However, as we have held, reasonable suspicion that someone
has committed or is about to commit a burglary or another
crime typically involving a weapon generally gives rise to a
reasonable suspicion that the person might be armed. See
United States v. Snow, 656 F.3d 498, 501–03 (7th Cir. 2011);
United States v. Barnett, 505 F.3d 637, 640–41 (7th Cir. 2007)
(collecting cases). This principle applies with equal force in this
case and provides Officer Newport with an independent
justification for conducting a protective frisk. Given these
considerations, Officer Newport had a plausible reason to
suspect that Green was armed and dangerous, in marked
contrast with the facts of Gentry. Green has failed to meet the
burden of establishing that the frisk violated clearly established
law, and we find that Officer Newport is entitled to qualified
immunity regarding the frisk.
We reverse the district court’s denial of Officer Newport’s
motion for summary judgment on qualified immunity
grounds, and direct the court to grant the motion.
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