Green v. Newport

868 F.3d 629, 2017 WL 3599778, 2017 U.S. App. LEXIS 16011
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 22, 2017
DocketNo. 16-1536
StatusPublished
Cited by92 cases

This text of 868 F.3d 629 (Green v. Newport) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Green v. Newport, 868 F.3d 629, 2017 WL 3599778, 2017 U.S. App. LEXIS 16011 (7th Cir. 2017).

Opinion

BAUER, Circuit Judge.

On November 26, 2014, around 8:30 p.m., Officer Jonathon Newport of the Milwaukee Police 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 [632]*632course of the robbery. Officer Newport was also aware that the store closed at 9 p.m. and would soon be empty.

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 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.

I. DISCUSSION

A. Jurisdiction

We have interlocutory jurisdiction over a district court’s denial of summary judgment on qualified, immunity grounds. Gibbs v. Lomas, 755 F.3d 529, 535 (7th Cir. 2014). 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, — U.S. —, 136 S.Ct 305, 308, 193 L.Ed.2d 255 (2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). “Qualified immu[633]*633nity 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, 129 S.Ct. 808. “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, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)).

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, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (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, 129 S.Ct. 808. 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, — U.S. —, 137 S.Ct. 548, 552, 196 L.Ed.2d 463 (2017) (per cu-riam) (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.

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868 F.3d 629, 2017 WL 3599778, 2017 U.S. App. LEXIS 16011, Counsel Stack Legal Research, https://law.counselstack.com/opinion/green-v-newport-ca7-2017.