Daudi Mwangangi v. Taylor Nielsen

• Court: Court of Appeals for the Seventh Circuit
• Decided: September 15, 2022
• Docket: 21-1971
• Status: Published

Opinion

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.