Torry v. City of Chi.

• Decision Date: 02 August 2019
• Docket Number: No. 18-1935,18-1935
• Citation: 932 F.3d 579
• Parties: Marcus D. TORRY, Latrell Q. Goss, and William I. Roberts, Plaintiffs-Appellants, v. CITY OF CHICAGO, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

932 F.3d 579

Marcus D. TORRY, Latrell Q. Goss, and William I. Roberts, Plaintiffs-Appellants,

v.CITY OF CHICAGO, et al., Defendants-Appellees.

No. 18-1935

United States Court of Appeals, Seventh Circuit.

Argued April 9, 2019

Decided August 2, 2019

Irene K. Dymkar, Attorney, LAW OFFICE OF IRENE K. DYMKAR, Chicago, IL, for Plaintiffs-Appellants.

Elizabeth Tisher, Attorney, CITY OF CHICAGO LAW DEPARTMENT, Chicago, IL, for Defendants-Appellees.

Before Kanne, Barrett, and Brennan, Circuit Judges.

Barrett, Circuit Judge.

One afternoon in 2014, three Chicago police officers stopped three black men in a grey sedan to investigate a nearby shooting that had happened a few hours earlier. When the passengers sued the officers a year later, none of the officers remembered the Terry stop. Lacking recall, they relied on other evidence to show that reasonable suspicion had existed for it. Cell phone footage taken by one of the plaintiffs during the encounter depicted Sergeant Robert King, the officer who initiated the stop, citing the plaintiffs’ suspicious behavior in the area of the shooting as the reason that he had pulled them over. And a police report showed that dispatches to officers investigating the shooting, including King, identified the suspects as three black men in a grey car. The descriptions of the car’s model varied, and none was an exact match for the car that the plaintiffs were driving. But reasonable suspicion can exist without an exact match, and the district court held that these descriptions were close enough to justify the Terry stop. In any event, the court said, the officers were entitled to qualified immunity because the stop did not violate clearly established law.

Before us, the plaintiffs have repeatedly suggested that the defendants’ failure of memory is a concession of liability. In other words, they maintain that if a police officer doesn’t remember a stop now, reasonable suspicion could not have justified it at the time. But the Fourth Amendment does not govern how an officer proves that he had reasonable suspicion for a Terry stop; he can rely on evidence other than his memory to establish what he knew when the stop occurred. The police report demonstrates that King knew that the suspects in the shooting had been identified as three black men driving a grey car, and the cell-phone video shows him giving the shooting as the reason for the stop. We agree with the district court that the officers are entitled to qualified immunity.

I.

On the morning of September 23, 2014, a drive-by shooting occurred about half a mile from Manley High School, which is located on West Polk Street in Chicago. Sergeant Robert King was on duty that day as a "school sergeant"—an officer who responds to and investigates violence near schools within his beat. A police report detailing the chronology of events related to the shooting shows that King responded to the shooting and that three descriptions of suspects were received while he was assisting.¹ One identified the suspects’ vehicle as a newer-model grey Nissan with three black male occupants. The second was almost identical to the first but specified that the Nissan was an SUV. The third identified the shooter as a medium-complected black male wearing a white t-shirt and driving a grey Trailblazer (a Chevrolet SUV).

Shortly past noon on that same day, Marcus Torry and William Roberts picked up Latrell Goss, Torry’s brother, in a grey Ford Fusion sedan. Goss’s car had broken down on West Polk Street; Torry and Roberts met him at his car and then drove him west on West Polk to an auto parts store. They passed Manley High School as they drove to the store, and they passed it again when they returned the same way. As they went by the school for the second time, they were pulled over by three police officers—King, Jacek Leja, and Justin Raether. Torry captured video of the ensuing encounter on his cell phone camera. Like the district court, we draw our description of the encounter primarily from the video, supplementing it with other undisputed facts and drawing all inferences in the plaintiffs’ favor.²

After Torry pulled over, King approached his window and asked for his license and registration. Torry asked why he had been stopped, and King replied that "this was about your third pass by this school." Torry protested that he had not driven by the school three times and handed over his license and registration. King told him not to argue; Torry demanded King’s badge number.

King told Torry to step out of the car and reached for the handle of the driver’s door, which prompted Torry to ask if he was under arrest. King didn’t directly answer the question but said, "Sir, get out of the car please. Sir, this is a Terry stop, I have the right to search the car, get out of the car." Torry, protesting that he had done nothing wrong, failed to comply with multiple commands that he exit the vehicle. King told Torry, "If you don’t get out of the car, I will remove you from the car," and Torry replied, "I’m gonna remove myself but I just don’t want to get—y’all get me, shoot me, or kill me for something I didn’t do wrong." King responded, "Yes, sir, absolutely; hands up, don’t shoot, there you go." Neither King nor the other officers had a gun out, but Torry feared police brutality.

Torry testified that when he finally removed his seatbelt, King "just grab[bed] me out of the car." King ordered Torry to "come on out, sir," as Torry repeatedly exclaimed, "Please don’t shoot." King walked Torry to a squad car, saying, "Let’s go back to my car, sir, right over here," and placed him inside. Goss testified that an officer grabbed him out of the car too, but neither Goss nor Roberts were placed in a squad car. After the plaintiffs had been repeatedly ordered to leave the car but before they had complied, one of the officers shook a can of mace, although he never used it.

After placing Torry in the back of his squad car, King sat in the front for a few minutes while he ran Torry’s name through a warrant check. Torry demanded to know why he had been pulled over, and King explained that Torry had "cruised this street here around the school," which was an area of "safe passage" and "the immediate location of a shooting this morning." (An area of "safe passage" is a designated area where extra precautions are taken to prevent violence that might affect students on their way to and from school.) King then returned to Torry’s car, where the officers talked to Goss and Roberts, who testified that the other officers patted them down and searched Goss’s pockets. Still in the squad car, Torry yelled obscenities and protests while continuing to film with his cell phone camera. At one point, Goss approached the car and told him to be quiet, to which Torry responded, "Leave me alone!"

Roughly ten minutes into the stop and eight minutes after putting Torry in the squad car, King retrieved Torry and walked him back to his own car. Torry asked if he was under arrest, to which King answered, "If you were under arrest, you’d be in handcuffs." Torry got in his car, and King returned his license and registration. Shortly after, one of the officers said to Goss that "you don’t want anything to do with him," and—in response to an unintelligible reply—said, "Yeah, c’mon, jump in the car ... yeah we’ll give you a ride home." Goss testified that the officers had told him to get in their car to return to his disabled car.

Free to leave, Torry and Roberts pulled back onto West Polk Street. Torry continued his video recording, narrating that the officers were driving behind his car. Goss, riding in the back seat of Leja and Raether’s car, testified that those officers debated pulling Torry over again "to mess with him." But the officers dropped Goss off at his car and nothing else happened.

One year later, Torry, Goss, and Roberts sued the three officers under 42 U.S.C. § 1983, alleging that the officers lacked reasonable suspicion to initiate the Terry stop, and that even if the stop was justified, its scope transformed it into a de facto arrest without probable cause.³ By the time the plaintiffs filed suit, none of the officers could recall the stop. Nor could King recall any details about the shooting. It was undisputed, though, that the shooting occurred while King was on duty in that area as a school sergeant, and the police report detailing the investigation’s chronology reflected that King responded as an assist vehicle to the shooting, drove around the corner to the victim’s residence a few minutes later, and continued to assist until 9:49 a.m., when the report notes him as "clear." During the hour or so that King was on the shot call, three suspect descriptions were transmitted to investigators: one that identified the suspects’ car as a newer-model grey Nissan with three black male occupants, a second that was almost identical to the first but specified that the Nissan was an SUV,⁴ and a third that identified the shooter as a medium-complected black male wearing a white t-shirt and driving a grey Trailblazer.

Based on that report and his review of Torry’s video, King testified by affidavit that the dispatches would have alerted him that the suspects were three black men driving a grey car, and, as the video reflected, that he told Torry—who was driving a grey car with three black male occupants—that he had stopped him because of the shooting. The plaintiffs and the defendants filed cross-motions for summary judgment, and the district court granted summary judgment to the defendants.

II.

The primary theme of the plaintiffs’ argument is that proving reasonable suspicion for the stop requires the officers to have at least some independent memory of what they knew at the time. The plaintiffs particularly object, therefore, to the district court’s reliance on indirect evidence—the police report and King’s affidavit—to conclude that the officers had reasonable suspicion to pull them over. They offer four reasons why the...