John Hall v. City of Chicago

• Court: Court of Appeals for the Seventh Circuit
• Decided: March 23, 2020
• Docket: 19-1347
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 19-1347 JOHN HALL, et al., Plaintiffs-Appellants, v.

CITY OF CHICAGO, Defendant-Appellee. ____________________

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12 CV 6834 — Harry D. Leinenweber, Judge. ____________________

ARGUED DECEMBER 12, 2019 — DECIDED MARCH 23, 2020 ____________________

Before BAUER, EASTERBROOK, and ST. EVE, Circuit Judges. ST. EVE, Circuit Judge. Plaintiffs in this case ask us to ad- dress the proper scope of a Terry stop. Police officers stopped Plaintiffs numerous times for violating a City ordinance while they were panhandling on the streets of Chicago. During the course of these street stops, the officers typically asked Plain- tiffs to produce identification (“ID”). The officers then pro- ceeded to use the provided ID cards to search for any out- standing warrants for their arrest or investigative alerts—a 2 No. 19-1347

process we will call a “warrant check” or a “name check.” Plaintiffs contend the officers would not return their IDs to them until after completing the name checks. Plaintiffs brought an action under 42 U.S.C. § 1983 against the City of Chicago, claiming that name checks unnecessarily prolong street stops and that the delays constitute unreason- able detentions in violation of the Fourth Amendment. They also assert that the City maintained an unconstitutional policy or practice of performing these name checks pursuant to Mo- nell v. Department of Social Services of City of New York, 436 U.S. 658 (1978). Plaintiffs’ Monell claim arises under several possi- ble theories: that the Chicago Police Department (“CPD”) Special Order regulating name checks omitted essential con- stitutional limits, that CPD failed to train on these same con- stitutional limits, and that former Superintendent Garry McCarthy promulgated an unconstitutional policy by pro- moting name checks in conjunction with every street stop. We conclude that officers may execute a name check on an individual incidental to a proper stop under Terry v. Ohio, 392 U.S. 1, 16 (1968), as long as the resulting delay is reasonable. Plaintiffs have failed to establish that they suffered an under- lying constitutional violation such that the City can be held liable under Monell. We therefore affirm. I. Background For many years, CPD used “contact cards” to document Terry stops and other interactions between police and citizens. Each contact card details personal information about the stopped individual, including his or her physical description, address, social security number, driver’s license number, and employer information. Between January 2010 and January No. 19-1347 3

2016, CPD documented over 3.3 million street encounters with citizens using contact cards and their successor form— Investigatory Stop Reports. Roughly two-thirds of these contact cards, by Plaintiffs’ es- timation, include a notation like “name check clear,” “NCC,” or “N.C. Clear”—indicating that officers completed a name check during the stop. When on the street, officers perform a name check in one of two ways: (1) radioing a dispatcher at the Office of Emergency Management and Communications (“OEMC”); or (2) entering search criteria into a Portable Data Terminal (“PDT”) located in the officer’s vehicle. When an of- ficer conducts a name check via a radio call, the officer reads to the dispatcher the individual’s information. The dispatcher records that information and performs the inquiry on the of- ficer’s behalf through his own terminal at OEMC. The amount of time it takes to obtain the results of a name check from an OEMC dispatcher can vary if, for example, the dispatcher must first respond to higher priority radio traffic. To perform a name check from a police car, the officer types the individ- ual’s first and last name into a name inquiry screen on the PDT. When an officer searches in this manner, the results come back seconds later. In their deposition testimony, several officers testified that they generally would conduct a name check during an inves- tigatory stop, and that it was up to their discretion whether to do so. They testified that they typically asked for citizens’ identification cards during street encounters and that people usually waited for the officers to return their ID cards before leaving. They also attested that preventing the subject of a stop from running away motivated their practice of holding onto the ID. Officer Carol Burns, for example, explained that 4 No. 19-1347

she would “typically hold onto the person’s ID until after [she had] received the call back that the person is clear” to “make sure that they don’t walk or run away.” Officer Burns also stated that, when conducting a name check, she would “say something like, I’m just going to run your name; if it’s clear, you’re free to go.” Until November 2018, Chicago’s Aggressive Panhandling Ordinance—City Ordinance 8-4-025, MCC § 8-4-025—prohib- ited certain behaviors while panhandling. The ordinance made it unlawful for a panhandler to solicit a person at spec- ified locations, such as within ten feet of a bus stop, on a pub- lic bus, in a restaurant, in a gas station, or within ten feet of an automatic teller machine. The ordinance also prohibited touching a solicited person without his consent, blocking the path of a person entering a building or vehicle, following a solicited person, or panhandling in a group of two or more persons. Plaintiffs—John Hall, Bonita Franks, Kim Pindak, George Gardner, McArthur Hubbard, and Vernon Dennis—are resi- dents of the City of Chicago who have each panhandled in the City. CPD officers stopped Plaintiffs numerous times and doc- umented those stops with contact cards. From 2005 to 2015, Chicago police records show 65 contact cards for Gardner; 7 for Franks; 39 for Pindak; 33 for Dennis; 54 for Hubbard; and 53 for Hall. These contact cards reflect that, in many of the stops, the officers performed name checks. Plaintiffs did not have a recollection of the specific details of these stops and varied when describing their duration and to what extent name checks caused a delay. Dennis testified that a call to the dispatcher for a name check took “maybe two to three minutes,” with a “minute or two delay” because other people No. 19-1347 5

were calling in, for a total of “three to seven minutes” for the entire encounter. Several of the other Plaintiffs testified that the warrant checks took anywhere from four to seven minutes. Franks, on the high end, testified that, on one occa- sion, an estimated eleven to fifteen minutes passed between an officer asking for her ID and returning the ID to her. Although no Plaintiff suggested that the officers used force or intimidation to obtain their IDs, Plaintiffs testified that they did not feel free to refuse the officers’ requests or leave before the officers returned their IDs to them. Gardner, for example, testified that “if you don’t give [an ID] to them, they’re going to say you resisted, you[‘re] hiding something … like you have warrants or something on you.” He elaborated, “They got your ID card, and if you leave, they’ll say you fleeing from a police officer. That’s a violation against you.” Pindak testi- fied that officers would use “verbal restraint,” saying, “You can’t go until we’re done.” He alleges that, when he asked the officers for his ID back, the officers said they would return the ID only “[w]hen they were done.” Gardner similarly testified that, during about half of his encounters with police, the of- ficers told him, “We’ll let you go if you don’t have any war- rants, or, If you’re clear, we’ll let you go.” The officers completed some contact cards following inter- actions where they had observed one of the Plaintiffs violat- ing the Aggressive Panhandling Ordinance. A contact card for Dennis, for example, reads, “Subject observed panhandling within 15 feet of a bus stop in violation of city ordinary [sic]. Subject warned, name check clear.” Another for Hubbard in- dicates, “Subject walking up to people asking for money. [Re- sponding Officer] informed Subject of panhandling ordi- nance. Name check clear.” Other times, the officers performed 6 No. 19-1347

stops for the purpose of completing what the City refers to as “well-being checks.” One contact card for Gardner states, “[Responding officer] while on foot patrol observed [Gard- ner] who appeared to be homeless. [Responding officer] con- ducted field interview which revealed above was staying at his mom’s and would have shelter. Name check: clear.” An- other for Hall reads, “Subject was appearing faint and affected negatively by the high temperature weather. [Responding of- ficer] asked if he needed medical attn. subject refused. Name check clear.” Plaintiffs filed a suit pursuant to 42 U.S.C. § 1983 against the City of Chicago and individual CPD officers, alleging that the unnecessary delays that result from blanket warrant checks unrelated to the reason justifying the stops constitute unreasonable seizures under the Fourth Amendment. Plain- tiffs do not challenge the use of contact cards. Plaintiffs eventually abandoned their claims against the individual officers but moved for summary judgment against the City, and the City filed a cross-motion. The district court denied Plaintiffs’ motion and granted the City’s. In doing so, the district court held that if officers have reasonable suspi- cion of an ordinance violation, they may permissibly detain an individual to investigate the possible violation. Therefore, there was no underlying constitutional violation for Plaintiffs to succeed on a Monell theory in these instances. Plaintiffs ap- pealed. II. Discussion We review the district court’s summary judgment ruling de novo and consider facts and draw inferences in the light most favorable to the Plaintiffs. Villas at Winding Ridge v. State No. 19-1347 7

Farm Fire and Cas. Co., 942 F.3d 824, 830 (7th Cir. 2019). Sum- mary judgment is appropriate when “there is no genuine dis- pute as to any material fact and the movant is entitled to judg- ment as a matter of law.” Fed. R. Civ. P. 56(a). The Supreme Court held in Monell that plaintiffs may sue municipalities under 42 U.S.C. § 1983 when their actions vio- late the Constitution. See 436 U.S. 658. In order to succeed on a Monell claim, a plaintiff must ultimately prove three ele- ments: (1) an action pursuant to a municipal policy, (2) culpa- bility, meaning that policymakers were deliberately indiffer- ent to a known risk that the policy would lead to constitu- tional violations, and (3) causation, meaning the municipal ac- tion was the “moving force” behind the constitutional injury. Bd. of Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 404–07 (1997). As a threshold matter plaintiffs must demonstrate that the policy at issue violates their constitutional rights. Sallenger v. City of Springfield, 630 F.3d 499, 504 (7th Cir. 2010). Thus, as with all Fourth Amendment inquiries, we begin by analyzing whether a search or seizure actually occurred. Carlson v. Bu- kovic, 621 F.3d 610, 618 (7th Cir. 2010). If we determine a sei- zure did take place, we next analyze whether that seizure was reasonable. Id. A. Fourth Amendment Seizure “[W]henever a police officer accosts an individual and re- strains his freedom to walk away, he has ‘seized’ that person.” Terry, 392 U.S. at 16. The test for whether a seizure has oc- curred is an objective one—we ask, considering the totality of the circumstances, “whether ‘a reasonable person would feel free to terminate the encounter.’” United States v. Lopez, 907 F.3d 472, 487 (7th Cir. 2018) (quoting United States v. Drayton, 536 U.S. 194, 201 (2002)); see also Florida v. Bostick, 501 U.S. 429, 8 No. 19-1347

439 (1991); California v. Hodari D., 499 U.S. 621, 628 (1991). “Circumstances that might indicate a seizure include the threatening presence of several officers, display of their weap- ons, physical touching of the private citizen, use of forceful language or tone of voice (indicating that compliance with the officers' request might be compelled), and the location in which the encounter takes place.” United States v. Clements, 522 F.3d 790, 794 (7th Cir. 2008) (citing United States v. Menden- hall, 446 U.S. 544, 554 (1980)); see also Drayton, 536 U.S. at 204 (finding a police encounter consensual where there was “no application of force, no intimidating movement, no over- whelming show of force, no brandishing of weapons, no blocking of exits, no threat, no command, not even an author- itative tone of voice” and concluding that a display of an of- ficer’s badge or uniform did not render an encounter coer- cive). Consequently, merely asking for identification does not amount to a seizure under the Fourth Amendment. The Su- preme Court has provided, In the ordinary course a police officer is free to ask a person for identification without implicat- ing the Fourth Amendment. “[I]nterrogation re- lating to one’s identity or a request for identifi- cation by the police does not, by itself, constitute a Fourth Amendment seizure.” … [Q]uestions concerning a suspect’s identity are a routine and accepted part of many Terry stops. … Knowledge of identity may inform an officer that a suspect is wanted for another offense. Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt Cty., 542 U.S. 177, 185–86 (2004) (quoting INS v. Delgado, 466 U.S. 210, No. 19-1347 9

216 (1984)). Indeed, “even when officers have no basis for sus- pecting a particular individual, they may generally ask ques- tions of that individual [and] ask to examine the individual’s identification … as long as the police do not convey a message that compliance with their requests is required.” Bostick, 501 U.S. at 434–35 (citing Delgado, 466 U.S. at 216; Florida v. Royer, 460 U.S. 491, 501 (1983)). We therefore conclude that the offic- ers’ initial requests for identification from Plaintiffs do not constitute seizures within the meaning of the Fourth Amend- ment. 1 We thus turn our analysis to the issue at the heart of Plain- tiffs’ claims—whether the time between Plaintiffs handing the officers their IDs and the officers returning their IDs to them is a seizure within the meaning of the Fourth Amendment. While Plaintiffs testified that they did not feel free to leave while police had their IDs, this testimony is irrelevant to our objective inquiry. Drayton, 536 U.S. at 202 (The “reasonable person test” is “objective and ‘presupposes an innocent per- son.’”). Testimony from the officers that they kept a person’s

1 The City also argues that the use of an ID to search public records does not constitute a search or seizure under the Fourth Amendment. See Willan v. Columbia Co., 280 F.3d 1160, 1162 (7th Cir. 2002) (holding that a query of an FBI database for conviction records was not a search within the meaning of the Fourth Amendment because records of conviction are public rather than private documents); see also United States v. Diaz-Cas- taneda, 494 F.3d 1146, 1153 (9th Cir. 2007) (“[T]here is no constitutional ba- sis for complaint when the police properly obtain information located in a driver’s license or state ID card, and then use it to access additional non- private (but inculpatory) information about the document’s owner.”). Plaintiffs, however, do not raise this theory; rather, their Fourth Amend- ment challenge focuses solely on the extended temporal duration of the police stop because of the name check. 10 No. 19-1347

ID for the purpose of preventing them from leaving is simi- larly irrelevant. Whren v. United States, 517 U.S. 806, 813 (1996) (“[W]e have been unwilling to entertain Fourth Amendment challenges based on the actual motivations of individual of- ficers.”). We also conclude Plaintiffs failed to provide evi- dence that the officers obtained Plaintiffs’ IDs through any showing of force, command, or intimidation as the Supreme Court described in Mendenhall or Drayton. Nevertheless, Pindak testified that, when he asked for the officers to return his ID, the officers told him that he could not leave until they were finished running his name check. Gard- ner similarly testified that the officers told him they would let him go if his name check was clear. Consistent with Pindak’s and Gardner’s testimony, Officer Burns asserted that she in- structed individuals on whom she performed name checks that they were “free to go” if their name checks were clear. Considering these explicit instructions in the light most favor- able to Plaintiffs, they have raised an issue of fact as to whether a reasonable person would feel free to leave in these circumstances. Plaintiffs therefore have demonstrated a gen- uine issue of material fact exists as to whether they were seized. B. Reasonableness We therefore proceed to the question of whether these po- tential seizures were reasonable under the Fourth Amend- ment. Because it is uncontested that the officers observed Plaintiffs violating the Aggressive Panhandling Ordinance, they had reasonable suspicion to justify Terry stops of these individuals. “It is nevertheless clear that a seizure that is law- ful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests No. 19-1347 11

protected by the Constitution.” Illinois v. Caballes, 543 U.S. 405, 407 (2005) (citing United States v. Jacobsen, 446 U.S. 109, 124 (1984)). “A seizure that is justified … can become unlawful if it is prolonged beyond the time reasonably required to com- plete [its] mission.” Id. Plaintiffs argue that, for a delay resulting from a name check to fall within constitutional limits, an officer needs more than reasonable suspicion that an individual committed the offense for which he or she was stopped: there must also be individualized suspicion to justify the warrant check, such as that the person detained is wanted on a warrant. Otherwise, they contend, the delay is unrelated to confirming or dispel- ling the suspicion that caused the officer to initiate the stop and is therefore unreasonable. But Plaintiffs too narrowly de- fine the “mission” of a Terry stop. In the traffic context, the Supreme Court has said that “[b]eyond determining whether to issue a traffic ticket, an officer’s mission includes ‘ordinary inquiries incident to the traffic stop.’” Rodriguez v. United States, 575 U.S. 348, 355 (2015) (quoting Caballes, 543 U.S. at 408). “Typically such inquiries involve … determining whether there are outstanding warrants against the driver.” Id. “These checks,” the Court wrote, “serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly.” Id. Accordingly, several sister circuits “have expressly held that officers do not exceed the permissible scope of a Terry stop by running a warrant check, even when the warrant check is unrelated to the crime suspected.” United States v. Young, 707 F.3d 598, 606 (6th Cir. 2012) (citing Klaucke v. Daly, 595 F.3d 20, 26 (1st Cir. 2010)); see also United States v. Christian, 356 F.3d 1103, 1007 (9th Cir. 2004). We agree. As a warrant 12 No. 19-1347

check is part of the “mission” of a proper Terry stop, a delay to perform a warrant check is permissible without separate reasonable suspicion that an individual has an outstanding warrant against him, as long as that delay is reasonable. Plaintiffs note the above cited cases all involve a different circumstance than the one we have here: traffic stops rather than street stops. They argue that the concerns about driving safety that the Court mentioned in Rodriguez are not at play with street stops, and thus warrant checks are not incidental to street stops like they are to traffic stops. We are persuaded, though, by the Tenth Circuit’s view of this issue. In United States v. Villagrana–Flores, 467 F.3d 1269 (10th Cir. 2006), the Tenth Circuit wrote, Officer safety … is just as strongly implicated where the individual being detained for a short period of time is on foot, rather than in an auto- mobile. An officer detaining a pedestrian has an equally strong interest in knowing whether that individual has a violent past or is currently wanted on outstanding warrants. Id. at 1277. We therefore hold that an officer’s completion of a warrant check during a street stop where the officer has rea- sonable suspicion of criminal activity is not per se unreasona- ble under the Fourth Amendment. This is not to say, however, that completion of a warrant check that extends the duration of a street stop is always rea- sonable. Indeed, the length of the delay impacts the reasona- bleness analysis. In Utah v. Strieff, 136 S.Ct. 2056 (2016), the Supreme Court held that running a warrant check incidental to a traffic stop did not require application of the exclusionary No. 19-1347 13

rule because “[t]he officer’s decision to run the warrant check was a ‘negligibly burdensome precaution’ for officer safety.” Id. at 2063 (quoting Rodriguez, 575 U.S. at 356). Thus, while a warrant check may cause some delay, that delay must not be unduly prolonged. See also Arizona v. Johnson, 555 U.S. 323, 333 (2009) (“An officer’s inquiries into matters unrelated to the jus- tification for the traffic stop … do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.” (emphasis added)). We similarly have suggested that dura- tion is an important consideration when determining reason- ableness. We have said, for example, that checking a driver’s criminal history on a computer in a patrol car is “normally reasonable, as it takes little time and may reveal outstanding arrest warrants.” United States v. Sanford, 806 F.3d 954, 956 (7th Cir. 2015); see also United States v. Childs, 277 F.3d 947, 949 (7th Cir. 2002) (en banc) (“[Q]uestions that do not increase the length of detention (or that extend it by only a brief time) do not make custody itself unreasonable.”). Here, most Plaintiffs testified that they estimated that war- rant checks typically delayed the stops by anywhere from four to seven minutes. No reasonable jury could find that this length of delay is objectively unreasonable in these circum- stances, particular when Plaintiffs were unable to recall any of the specifics of their alleged encounters with police. See United States v. Teslim, 869 F.2d 316, 322 (7th Cir. 1989) (holding a de- tention lasting five to seven minutes was reasonable because of its brief duration); United States v. Robinson, 455 F.3d 832, 834 (8th Cir. 2006) (noting cases in which seizures of less than ten minutes were upheld as de minimis intrusions that did not amount to unreasonable seizures). Even viewing the evidence in the light most favorable to the Plaintiffs, the longest delay 14 No. 19-1347

a Plaintiff estimated—eleven and fifteen minutes, as Franks claimed—appears to be an outlier. But in any event, this ex- tended time frame still is within the bounds of what this Court and our sister circuits have determined to be reasonable when officers have reasonable suspicion for the stop. See, e.g., United States v. Street, 917 F.3d 586, 597 (7th Cir. 2017) (concluding that a stop lasting ten to fifteen minutes was reasonable under the circumstances); United States v. Jones, 289 Fed.Appx. 593, 599–600 (4th Cir. 2009) (per curiam) (approving of a twenty minute traffic stop); United States v. Olivera-Mendez, 484 F.3d 505, 508, 510 (8th Cir. 2007) (concluding fifteen minutes wait- ing for dispatcher to respond with results of a name check was reasonable); United States v. Purcell, 236 F.3d 1274, 1279 (11th Cir. 2001) (approving of a fourteen minute stop). Plaintiffs have therefore failed to raise an issue of fact that they suffered underlying constitutional violations during stops where the officers had at least reasonable suspicion that Plaintiffs were engaged in criminal activity. In a footnote, without any legal citation, Plaintiffs state that “detaining a citizen for the sole purpose of running his or her name for warrants in the absence of individualized rea- sonable suspicion of criminal wrongdoing constitutes an un- reasonable seizure.” They later argue that the district court erred by ignoring ample evidence that police detained citi- zens for warrant checks without reasonable suspicion of a crime. But Plaintiffs never develop a separate legal argument about why name checks in this context are constitutionally suspect. Instead, the section of Plaintiffs’ opening brief dis- cussing their theory as to the underlying Fourth Amendment violations focuses entirely on the delays from name checks performed during otherwise proper Terry stops. “We have an- nounced that ‘[i]t is the parties' responsibility to allege facts No. 19-1347 15

and indicate their relevance under the correct legal stand- ard.’” Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012) (quoting Econ. Folding Box Corp. v. Anchor Frozen Foods Corp., 515 F.3d 718, 721 (7th Cir. 2008)); see also Ajayi v. Aramark Busi- ness Servs., Inc., 336 F.3d 520, 529 (7th Cir. 2003) (“[I]f [a plain- tiff] intends to challenge [an] aspect of the district court’s rul- ing, she must identify the legal issue, raise it in the argument section of her brief, and support her argument with pertinent authority.”). Plaintiffs thus have waived any argument that delays resulting from warrant searches performed without reasonable suspicion, such as during well-being checks, are unreasonable under the Fourth Amendment. Therefore, because name checks of a reasonable duration performed when officers have reasonable suspicion of ongo- ing criminal activity do not violate the Fourth Amendment, Plaintiffs have failed to raise an issue of fact that they suffered an underlying constitutional violation. The City thus cannot be liable under Monell. AFFIRMED.