RIPPLE, Circuit Judge.
Officer Brooke Lomas, a police officer in Madison, Wisconsin, responded to a complaint that a man was driving through downtown Madison while holding an unholstered gun in the view of other drivers. After locating the individual, Roric Gibbs, she issued a misdemeanor citation for disorderly conduct and searched his car. The citation was later dismissed, and Mr. Gibbs then brought this action under 42 U.S.C. § 1983 against Officer Lomas. Mr. Gibbs alleged that the arrest and search had violated his Fourth Amendment right to be free from unreasonable searches and seizures. Officer Lomas moved for summary judgment on the basis of qualified immunity. The district court denied her motion. We now reverse that determination. Even if Mr. Gibbs had a constitutional right to be free from this arrest and search, that right was not clearly established at the time of Officer Lomas's actions. The district court should have granted her motion.
Because this is an interlocutory appeal from a denial of summary judgment based on qualified immunity, we recount the facts as "asserted by the plaintiff" or as "assumed by the district court." Jewett v. Anders, 521 F.3d 818, 819 (7th Cir.2008).
On July 15, 2012, Travis and Katherine Gruchow were driving through Madison, Wisconsin. The Gruchows saw a young man in a red Jeep Cherokee; he was holding near his head what appeared to be a handgun. The barrel was pointed at the
Dexter's Pub is located on Officer Lomas's beat. Dispatch therefore advised her of the report, giving her a description of the individual and of the Jeep and telling her that the individual "had a gun on him" but that "nothing was threatened with the weapon."
When Officer Lomas arrived at Dexter's, her superior, Sergeant Brian Chaney, already was there. Other officers also arrived on the scene. The officers decided to look at the Jeep, which was parked and unoccupied, to see if a weapon was visible. However, before they did so, Mr. Gibbs walked out of the bar. Mr. Gibbs matched the physical description that the Gruchows had provided to Officer Lomas. Sergeant Chaney instructed Mr. Gibbs to show his hands, turn around and put his hands on the building wall. Mr. Gibbs complied with these orders. Officer Lomas then handcuffed Mr. Gibbs, and Sergeant Chaney frisked him for weapons. During this interaction, Mr. Gibbs told the officers that he was the driver of the Jeep. Officer Lomas then placed Mr. Gibbs in the back of a squad car.
After this conversation, Officer Lomas explained to Mr. Gibbs that he was being detained because someone had seen him driving his vehicle and pointing a gun at the ceiling of the car. She also informed him of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). After hearing his rights, Mr. Gibbs told Officer Lomas that he had airsoft guns in his car. Airsoft guns are replicas of firearms; they usually have the same color, dimensions, weight and markings as real firearms. Mr. Gibbs explained that he was on his way home from an airsoft event, where he had been a referee, when a friend called and suggested that they meet at Dexter's for a drink.
The parties disagree as to whether, during the course of this conversation, Mr. Gibbs consented to Officer Lomas's search of the Jeep. Officer Lomas stated that during her discussion with Mr. Gibbs, he had consented to her looking in the Jeep for the airsoft weapons.
After the search, Officer Lomas discussed the situation with Sergeant Chaney, and they decided to issue Mr. Gibbs a misdemeanor citation for disorderly conduct. Mr. Gibbs signed the citation to acknowledge that he had received it and that it was explained to him. He then was released. According to the law enforcement report, the entire interaction lasted approximately thirty minutes; Mr. Gibbs says it took about an hour. The citation was later dismissed pursuant to an agreement made by Mr. Gibbs's lawyer and the assistant district attorney and approved by a state judge.
On October 31, 2012, Mr. Gibbs brought this action against Officer Lomas under 42 U.S.C. § 1983. He did not name as defendants any of the other officers who had been present in the parking lot at Dexter's Pub. He sought damages and declaratory relief, alleging that he had been arrested without probable cause and that his car had been searched without a warrant, in violation of his rights under the Fourth Amendment as made applicable to the
In support of her motion, Officer Lomas argued to the district court that her actions conformed to the Constitution because she had probable cause to arrest Mr. Gibbs for disorderly conduct under Wisconsin state law. She took the view that, despite a recent statutory amendment that exempts (in the absence of "other facts and circumstances that indicate a criminal or malicious intent") "loading, carrying, or going armed with a firearm" from the category of citable disorderly conduct, see Wis. Stat. § 947.01(2), the totality of the circumstances here — that Mr. Gibbs was driving fast on city streets while pointing an unholstered gun at the ceiling of his car — gave her probable cause to arrest and cite Mr. Gibbs. Consequently, she maintained, the search of the car was constitutionally permissible as a search incident to arrest. Alternatively, Officer Lomas submitted that she was entitled to qualified immunity because, at the time she acted, any constitutional right that had been violated was not clearly established.
The district court denied Officer Lomas's motion. In its view, "the facts known to Lomas at the time were not sufficient to warrant a belief that Gibbs had committed disorderly conduct," and, therefore, Officer Lomas did not have probable cause to arrest Mr. Gibbs.
On appeal, Officer Lomas contends, as she did in the district court, that she did not violate Mr. Gibbs's constitutional rights and, even if she did, those rights were not clearly established when she acted. Accordingly, she urges, she is entitled to qualified immunity. For the reasons set forth in this opinion, we believe that there is merit in Officer Lomas's submission. We first address several threshold matters.
Our appellate jurisdiction is secure. "[A] district court's denial of summary judgment usually is an unappealable interlocutory order...." Jewett v. Anders, 521 F.3d 818, 821-22 (7th Cir.2008). However, there is a well-established exception to this general rule under the collateral order doctrine where a party challenges a district court's determination that a government official is not entitled to qualified immunity. Mitchell v. Forsyth, 472 U.S. 511, 524-30, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Of course, when we exercise this
Here, Officer Lomas's appeal clearly falls within the first category: She submits that, even considering the facts in the light most favorable to Mr. Gibbs, those facts do not amount to a clearly established constitutional violation. Therefore, mindful of the limits of our jurisdiction, we must construe all facts and inferences in favor of Mr. Gibbs and examine only the "purely legal question" of whether those facts "make out a violation of clearly established law." Huff v. Reichert, 744 F.3d 999, 1004 (7th Cir.2014) (internal quotation marks omitted).
The standard of review is also well established. We review de novo the denial of a motion for summary judgment on qualified immunity grounds. Findlay v. Lendermon, 722 F.3d 895, 899 (7th Cir. 2013).
Jewett, 521 F.3d at 821 (quoting Magin v. Monsanto Co., 420 F.3d 679, 686 (7th Cir. 2005)); see also Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Having completed our examination of the pertinent threshold issues, we now come to the merits of Officer Lomas's qualified immunity defense.
We first examine the requirements of the qualified immunity doctrine that Officer Lomas maintains protects her from exposure to trial and liability from damages.
"Section 1983 allows citizens whose constitutional rights have been violated by public officials to sue those officials in their individual capacities." Fleming v. Livingston Cnty., Ill., 674 F.3d 874, 878 (7th Cir.2012). In responding to such an action, a public official may raise the affirmative defense of qualified immunity. Jewett, 521 F.3d at 823. Qualified immunity "protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (internal
Determining whether a defendant state officer is entitled to qualified immunity involves two inquiries: "(1) whether the facts, taken in the light most favorable to the plaintiff, make out a violation of a constitutional right, and (2) whether that constitutional right was clearly established at the time of the alleged violation." Williams v. City of Chicago, 733 F.3d 749, 758 (7th Cir.2013). If either inquiry is answered in the negative, the defendant official is entitled to summary judgment. We are permitted to address the two prongs of qualified immunity in either order. Pearson, 555 U.S. at 236, 129 S.Ct. 808. With this background, we now turn to the facts presented by the record.
Mr. Gibbs claims that, by arresting him for disorderly conduct, Officer Lomas violated his Fourth Amendment right to be free from unreasonable seizures. "`False arrest' is shorthand for an unreasonable seizure prohibited by the Fourth Amendment." Gonzalez v. Vill. of W. Milwaukee, 671 F.3d 649, 655 (7th Cir. 2012). Because the presence of probable cause makes a warrantless arrest reasonable under the Fourth Amendment, "the existence of probable cause is an absolute defense to a § 1983 claim for false arrest." Gutierrez v. Kermon, 722 F.3d 1003, 1007 (7th Cir.2013). Accordingly, Officer Lomas submits that the record establishes that she had probable cause to arrest Mr. Gibbs for disorderly conduct. We must evaluate that submission.
"An officer has probable cause to make an arrest only when the facts and circumstances within his knowledge and of which he has reasonably trustworthy information are sufficient to warrant a prudent person in believing that the suspect has committed an offense." Reher v. Vivo, 656 F.3d 772, 776 (7th Cir.2011). In making this assessment, we ask whether, given the "totality of the circumstances," a reasonable officer would believe that the suspect had committed a crime. Jones v. City of Elkhart, Ind., 737 F.3d 1107, 1114 (7th Cir.2013) (internal quotation marks omitted). "We do not consider the subjective motivations of the officer." Id. Where, as here, part of the officer's probable cause analysis is based on an informant's tip, we have stated that "as long as a reasonably credible witness or victim informs the police that someone has committed a crime, or is committing[] a crime, the officers have probable cause." Matthews v. City of E. St. Louis, 675 F.3d 703, 706-07 (7th Cir.2012) (internal quotation marks omitted).
Our present task, therefore, is to determine whether the totality of the circumstances, as known to Officer Lomas at the time she arrested Mr. Gibbs, gave her probable cause to believe that Mr. Gibbs had committed the crime of disorderly conduct. At the time that Mr. Gibbs was handcuffed and placed in the back of the police vehicle,
Whether these facts gave Officer Lomas probable cause to arrest Mr. Gibbs depends on the elements of the crime of disorderly conduct. See Abbott v. Sangamon Cnty., Ill., 705 F.3d 706, 715 (7th Cir.2013) ("The existence of probable cause or arguable probable cause depends, in the first instance, on the elements of the predicate criminal offense(s) as defined by state law."). Wisconsin's disorderly conduct statute provides:
Wis. Stat. § 947.01.
There is little question that if we analyzed this case solely under subsection 947.01(1), Officer Lomas would have had probable cause to arrest Mr. Gibbs. There are two elements to a typical disorderly conduct offense in Wisconsin: (1) "that the defendant engaged in violent, abusive, indecent, profane, boisterous, unreasonably loud, or similar disorderly conduct" and (2) "that the defendant's conduct occurred under circumstances where such conduct tends to cause or provoke a disturbance." State v. Schwebke, 253 Wis.2d 1, 644 N.W.2d 666, 674 (2002) (internal quotation marks omitted). The Wisconsin courts have interpreted the phrase "similar disorderly conduct" broadly to mean "conduct of a type not previously enumerated but similar thereto in having a tendency to disrupt good order
Mr. Gibbs nevertheless argues that Officer Lomas did not have probable cause to arrest Mr. Gibbs because subsection 947.01(2) provides that absent "facts and circumstances that indicate a criminal or malicious intent," an individual cannot be cited for disorderly conduct "for loading, carrying, or going armed with a firearm, without regard to whether the firearm is loaded or is concealed or openly carried." In Mr. Gibbs's view, Officer Lomas should have realized that this limitation on the more general language of the statute exempted his actions from the ambit of the statute.
Subsection 947.01(2) was enacted in 2011 as part of a larger act that expanded concealed carry rights in Wisconsin.
The district court held that, in light of subsection 947.01(2), Officer Lomas could not have had probable cause to arrest Mr. Gibbs because she had no evidence that Mr. Gibbs was acting with a criminal or malicious intent. The court contrasted Mr. Gibbs's behavior with other conduct that, in its view, might amount to disorderly conduct under subsection 947.01(2), such as "if Gibbs had placed his hand on the trigger, or had pointed the gun at someone or something besides the roof of his own car, or had done anything at all that could reasonabl[y] be construed by an observer as any sort of attempt to hurt himself or to threaten others."
Reher, 656 F.3d at 775 (citation omitted). As we noted in Abbott, 705 F.3d at 714, "[t]he probable-cause standard inherently allows room for reasonable mistakes." See Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). Here, we deal with the question in the context of a false arrest suit where the defendant officer has the added layer of protection of qualified immunity. In this situation, we ask whether a reasonable police officer in the defendant's shoes could have believed that probable cause existed.
We are convinced that Mr. Gibbs did not meet his burden of refuting Officer Lomas's qualified immunity defense either by "identifying a closely analogous case or by persuading the court that the [officer's] conduct [wa]s so egregious and unreasonable that, notwithstanding the lack of an analogous decision, no reasonable officer could have thought [s]he was acting lawfully." See Abbott, 705 F.3d at 723-24. Instead of identifying an analogous case, Mr.
As we have noted earlier, the mere addition of subsection (2) to section 947.01 hardly makes the law "clearly established." The Wisconsin courts have yet to interpret key terms of the subsection, such as "going armed with" and "criminal or malicious intent."
Nor is this the sort of case where Officer Lomas's conduct was so egregious as to be recognized universally by law enforcement officers as unlawful. Rather, as we have suggested earlier, a reasonable police officer — indeed, a reasonable court — could believe that, under the facts described above, far more than the statutorily exempted activity of "loading, carrying, or going armed with a firearm" was taking place. Despite Mr. Gibbs's repeated contentions that he was "just driving," he obviously was doing more than that.
Indeed, his conduct also was sufficient for a reasonable officer to conclude — in the absence of any guidance from the Wisconsin courts — that a criminal or malicious intent was present, thus removing any protection that subsection 947.01(2) would otherwise have given Mr. Gibbs. For example, Wisconsin state law prohibits firing a gun from a vehicle, see Wis. Stat. §§ 167.31(2)(c), 941.20(3), and an officer who receives a tip that an individual was visibly handling an unholstered weapon while speeding may believe reasonably that the individual had the intent to violate that prohibition. Wisconsin also prohibits entering a bar with a handgun under most circumstances, see Wis. Stat. § 941.237(2), and the facts known to Officer Lomas when she arrested Mr. Gibbs may have suggested that he had the intent to violate this statute. Apart from these statutorily based examples of how the facts of this case may have indicated a specific criminal intent, it is also reasonable to interpret
In sum, even if Officer Lomas was mistaken in believing that she had probable cause to arrest Mr. Gibbs, such a mistake was reasonable in light of the facts and circumstances of this case and in light of the undeveloped case law regarding subsection 947.01(2). Consequently, contrary to the conclusion of the district court, Officer Lomas was entitled to qualified immunity for her arrest of Mr. Gibbs.
Mr. Gibbs also contends that the search of his car by Officer Lomas violated his Fourth Amendment rights. The Fourth Amendment prohibits, with limited exceptions, warrantless searches. See Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). However, "[a]mong the exceptions to the warrant requirement is a search incident to a lawful arrest." Id.; Peals v. Terre Haute Police Dep't, 535 F.3d 621, 627 (7th Cir. 2008). Under the search-incident-to-arrest exception, law enforcement may search a vehicle "incident to a recent occupant's arrest ... (1) if the arrestee is within reaching distance of the vehicle during the search, or (2) if the police have reason to believe that the vehicle contains evidence relevant to the crime of arrest." Davis v. United States, ___ U.S. ___, 131 S.Ct. 2419, 2425, 180 L.Ed.2d 285 (2011) (internal quotation marks omitted).
Here, the search was conducted because Officer Lomas had reason to believe that the vehicle contained evidence relevant to the crime of arrest — namely, the weapon that Mr. Gibbs had been holding while driving through Madison. Mr. Gibbs's entire argument regarding the search is that because the arrest violated his clearly established constitutional rights, the search also violated those rights. He makes no other arguments. Since we have held that a reasonable officer in Officer Lomas's shoes could have determined that she had the authority to arrest Mr. Gibbs, it follows that such a reasonable officer also could conclude that she had the authority to search the vehicle incident to that arrest.
Consequently, we hold that the search of Mr. Gibbs's vehicle for the weapon involved in the offense of arrest did not violate Mr. Gibbs's clearly established rights, and Officer Lomas is entitled to immunity from suit for her search of the vehicle.
We find it unnecessary to decide whether Officer Lomas violated Mr. Gibbs's constitutional
REVERSED and REMANDED.