In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐1362
CHRISTOPHER COLBERT and JAI CRUTCHER,
Plaintiffs‐Appellants,
v.
CITY OF CHICAGO, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13‐cv‐2397 — Robert M. Dow, Jr., Judge.
____________________
ARGUED NOVEMBER 29, 2016 — DECIDED MARCH 14, 2017
____________________
Before BAUER, FLAUM, and HAMILTON, Circuit Judges.
FLAUM, Circuit Judge. Plaintiffs‐appellants Christopher
Colbert and Jai Crutcher were arrested after a search of their
apartment, in which police officers and parole agents found
an unregistered firearm and ammunition. After Colbert’s and
Crutcher’s acquittals and dismissal of the gun‐possession
charges, plaintiffs‐appellants brought malicious‐prosecution,
2 No. 16‐1362
Fourth Amendment, and false‐arrest claims against the offic‐
ers and the City of Chicago. The district court granted sum‐
mary judgment in defendants‐appellees’ favor. We affirm.
I. Background
From 2002 to 2010, Jai Crutcher was incarcerated for rob‐
bery, unlawful use of a weapon by a felon, aggravated dis‐
charge of a firearm at an occupied vehicle, and mob action. In
December 2010, Crutcher was released; however, he returned
to prison in January 2011 for domestic battery. In March 2011,
he was discharged on mandatory supervised release.1 On
March 17, 2011, Crutcher and his girlfriend moved in with
Colbert, Crutcher’s brother by adoption.
In late March 2011, Chicago Police Department Officer
Russell Willingham and his partner received a tip from an in‐
formant who reported that he had been at Crutcher’s resi‐
dence on multiple occasions and had observed Crutcher in
possession of a forty‐caliber semiautomatic handgun and a
twelve‐gauge shotgun. Officer Willingham ran a name check
on Crutcher and saw that he was on mandatory supervised
release. Officer Willingham then contacted the Illinois Depart‐
ment of Corrections (“IDOC”) and spoke with parole agent
1 The terms of Crutcher’s release required him to “refrain from possessing
a firearm or other dangerous weapon,” “consent to a search of [his] per‐
son, property, or residence under [his] control,” and “comply with any
additional conditions the Prisoner Review Board has or may set as a con‐
dition of [his] parole or mandatory supervised release including, but not
limited to: ELECTRONIC MONITORING FOR DURATION.” Crutcher’s
electronic‐monitoring condition further mandated that he “not use or
knowingly have under [his] control or in [his] residence any firearms, am‐
munition, or explosive devices” and subjected his “host site” to search for
“any reason and at any time.”
No. 16‐1362 3
Jack Tweedle. Willingham relayed the informant’s report to
Tweedle, and both decided to perform a compliance check at
Crutcher’s residence.
At 6:30 AM on March 31, 2011, at least ten law‐enforcement
officials—including defendants‐appellees Officer Willingham
and parole agents Tweedle, Darryl Johnson, and Louis Hop‐
kins, as well as several others not named in the lawsuit—re‐
ported to Crutcher’s residence. Crutcher woke up to the offic‐
ers’ knock at the door, noticed the officers out front, and called
Colbert, who was at work. Crutcher took several minutes to
let the officers in. Once Crutcher opened the door, the officers
informed him that they were there to conduct a parole check.
Crutcher consented to the search as required under the terms
of his supervised release.
Before beginning the search, the officers handcuffed
Crutcher. Soon afterward, Colbert returned home from work.
The officers informed Colbert that they were conducting a
compliance check and handcuffed Colbert, as well. Neither
Crutcher nor Colbert was permitted to observe the search,
which encompassed the basement, kitchen, and various bed‐
rooms.
In his complaint, Colbert alleged that, during their search,
the officers caused damage throughout his house. Specifically,
he claimed the officers “pulled out insulation, put holes in the
walls, ripped the couch open to search its contents, and
tracked dog feces throughout the house.” He further alleged
that the officers ruined part of the kitchen countertop and
broke hinges off of certain shelves. Colbert did not provide
any evidence of the residence’s pre‐search condition. He was
also unable to identify any of the officers who allegedly dam‐
aged his property.
4 No. 16‐1362
While searching Colbert’s house, the officers encountered
a locked bedroom door on the main floor. Colbert informed
the officers that it was his bedroom. According to Colbert, one
of the IDOC agents then wrestled him to the ground and took
the keys to the room. The officers found a twelve‐gauge shot‐
gun and approximately one hundred rounds of ammunition
in the bedroom closet. The shotgun was not registered with
the City of Chicago. The officers also discovered a case for a
forty‐caliber semiautomatic handgun, but they did not re‐
cover the gun itself. Colbert admitted that he owned both fire‐
arms. The officers arrested both Crutcher2 and Colbert.
Later, Officer Willingham submitted a criminal complaint
against Crutcher, alleging that Crutcher had possessed a fire‐
arm as a felon, in violation of 720 Ill. Comp. Stat. 5/24–1.1(a),
and had violated his parole, see 730 Ill. Comp. Stat. 5/3–3–9.
Both charges required Crutcher to have known about the fire‐
arms in the house. Officer Willingham’s arrest report stated,
in relevant part:
After being Mirandized and waiving said
rights, [Crutcher] stated that he had full
knowledge of the firearm being in the residence
but stated that it was OK because it was his
brother’s, and he’s legit … . [A]s to the fact that
a .40 cal semiauto handgun previously had been
in the residence … [Colbert] stated [it] was his
but [that it was] currently at a friend’s house in
Matteson.
2 Crutcher does not challenge the district court’s ruling that he was legally
arrested.
No. 16‐1362 5
According to Crutcher, however, Officer Willingham’s state‐
ment was false: Crutcher had informed Officer Willingham
that the shotgun was not his and that he did not know that
Colbert had a firearm in the house. On April 19, 2011, the
Cook County trial court dismissed the criminal complaint on
a finding of no probable cause.3
In May 2011, an Illinois grand jury indicted Crutcher on
one count of being an armed habitual criminal and two counts
of unlawful possession of a firearm by a felon. On February
28, 2012, a jury found Crutcher not guilty.
As for Colbert, Officer Willingham submitted in an affida‐
vit that the officers arrested him for (1) failing to register his
firearm pursuant to § 8‐20‐140 of Chicago’s Municipal Code,
and (2) using a shotgun able to hold over three rounds, in vi‐
olation of 520 Ill. Comp. Stat. 5/2.33(m).4 Colbert’s official
charge, however, mistakenly identified § 8‐20‐040 as the ordi‐
nance underlying the charges.5 According to Officer Willing‐
ham, the discrepancy was due to a scrivener’s error. Colbert
was released from custody on the same day of his arrest, and
the charges against him were later dismissed.
Appellants subsequently filed this lawsuit. Crutcher al‐
leged that Officer Willingham and the City of Chicago had
both subjected him to malicious prosecution under Illinois
law. Colbert alleged that (1) the named officers and agents
3 The court did not provide its reasoning for this finding.
4 Neither party disputes the notion that Colbert’s possession amounted to
“use” under the statute. Regardless, it is not relevant for the purposes of
the issues on appeal.
5 Section 8‐20‐040 prohibits possessing more than one assembled and op‐
erable firearm per licensed owner in a home.
6 No. 16‐1362
had violated his Fourth Amendment rights, and (2) the City
of Chicago had falsely arrested him. The district court granted
defendants‐appellees’ motion for a more definite statement
regarding Colbert’s and Crutcher’s claims against the City.
Specifically, the district court ordered Colbert and Crutcher to
identify any allegedly unconstitutional ordinance that formed
the basis of their claims. Appellants filed an amended com‐
plaint, identifying § 8‐20‐040 (the ordinance mistakenly listed
in the official charge) as the allegedly unconstitutional ordi‐
nance at issue. The City then moved to dismiss the claims
against it, arguing that Officer Willingham had arrested Col‐
bert for violating § 8‐20‐140, not § 8‐20‐040. The district court
denied the City’s motion. Appellants then filed a second
amended complaint that continued to identify § 8‐20‐040 as
the only allegedly unconstitutional ordinance at issue.
The City of Chicago and Officer Willingham moved for
summary judgment, as did IDOC agents Tweedle, Johnson,
and Hopkins. Colbert and Crutcher moved for partial sum‐
mary judgment on their false‐arrest claim against the City.
They also, for the first time, asserted that the registration re‐
quirements under § 8‐20‐140—the ordinance actually under‐
lying Colbert’s arrest—were unconstitutional. In response,
Officer Willingham submitted an affidavit stating that Colbert
had been arrested for violating § 8‐20‐140, but Officer Willing‐
ham had erroneously marked § 8‐20‐040 as the cause for ar‐
rest. The district court accepted this explanation, granted
summary judgment for defendants‐appellees on all claims,
denied Colbert’s and Crutcher’s motion for partial summary
judgment, and dismissed the case. This appeal followed.
No. 16‐1362 7
II. Discussion
We review the district judge’s grant of summary judgment
de novo, viewing all facts in favor of the nonmoving party.
Georgia‐Pac. Consumer Prods. LP v. Kimberly‐Clark Corp.,
647 F.3d 723, 727 (7th Cir. 2011).
A. Malicious Prosecution6
Crutcher brought state‐law claims for malicious prosecu‐
tion against the City and Officer Willingham under supple‐
mental jurisdiction, pursuant to 28 U.S.C. § 1367.7 “To estab‐
lish a claim for malicious prosecution under Illinois law,
6 The district court treated Crutcher’s underlying criminal proceedings as
two separate actions: (1) Officer Willingham’s criminal complaint, which
the state court dismissed on April 19, 2011, after finding no probable
cause, and (2) the State’s grand‐jury indictment, which ended with a not‐
guilty jury verdict on February 28, 2012. Crutcher first raised his mali‐
cious‐prosecution claims on November 29, 2012; so the district court con‐
cluded that Crutcher’s claims arising out of the first criminal proceeding
were untimely. The court subsequently determined that Crutcher’s claims
regarding the second proceeding lacked evidence of malice. Crutcher ar‐
gues that the district court erroneously split the underlying criminal pro‐
ceedings. He maintains he was subjected to one continuous criminal pro‐
ceeding that ended with the February 2012 not‐guilty verdict. Thus, he
concludes, his claims were all timely and included the necessary allega‐
tions, including malice.
Regardless of whether Crutcher’s criminal proceedings are properly
understood as one or two actions, defendants‐appellees were entitled to
judgment as a matter of law on Crutcher’s malicious‐prosecution claims.
Because we conclude that these claims fail even if we treat his underlying
criminal proceedings as one continuous proceeding, we do not address
the question of when a proceeding is “terminated” for the purposes of ma‐
licious prosecution in Illinois.
7 The Supreme Court is currently considering whether to recognize a fed‐
eral constitutional claim for malicious prosecution under the Fourth
8 No. 16‐1362
plaintiffs must establish five elements: (1) commencement or
continuation of an original proceeding [by the defendant];
(2) termination of the proceeding in favor of the plaintiff;
(3) the absence of probable cause; (4) malice; and (5) dam‐
ages.” Cairel v. Alderden, 821 F.3d 823, 834 (7th Cir. 2016) (citing
Sang Ken Kim v. City of Chi., 858 N.E.2d 569, 574 (Ill. App.
2006)). “The absence of any one of these elements bars a plain‐
tiff from pursuing the claim.” Johnson v. Saville, 575 F.3d 656,
659 (7th Cir. 2009) (quoting Swick v. Liautaud, 662 N.E.2d 1238,
1242 (Ill. 1996)).
The fact that Crutcher was indicted by a grand jury defeats
his claim. Noting that “a malicious prosecution action against
police officers” can often be “anomalous,” we have explained,
[T]he State’s Attorney, not the police, prosecutes
a criminal action. It is conceivable that a wrong‐
ful arrest could be the first step towards a mali‐
cious prosecution. However, the chain of causa‐
tion is broken by an indictment, absent an allega‐
tion of pressure or influence exerted by the po‐
lice officers, or knowing misstatements by the
officers to the prosecutor.
Reed v. City of Chi., 77 F.3d 1049, 1053 (7th Cir. 1996) (emphasis
added). Thus, a plaintiff may not maintain a malicious‐prose‐
cution claim against an arresting officer without first showing
Amendment. See Manuel v. City of Joliet, 590 F. App’x 641 (7th Cir. 2015),
cert. granted, — U.S. —, 136 S. Ct. 890 (2016). The Court heard oral argu‐
ment in Manuel on October 5, 2016. Crutcher argues that, in the event the
Supreme Court recognizes such a claim, he should be able to raise it on
remand. As explained below, however, Crutcher’s claims fail regardless.
No. 16‐1362 9
“some postarrest action which influenced the prosecutor’s de‐
cision to indict.” Snodderly v. R.U.F.F. Drug Enforcement Task
Force, 239 F.3d 892, 902 (7th Cir. 2001). While Officer Willing‐
ham’s allegedly false statement constitutes a post‐arrest ac‐
tion, there is no evidence that it influenced the prosecutor’s
decision to indict, or that the prosecutor relied on it to obtain
the indictment. It is likely the prosecutor knew that a judge
had already dismissed Officer Willingham’s complaint, which
was based in part on this arrest report, for lack of probable
cause. In fact, Officer Willingham did not testify before the
grand jury—Officer Berry, one of the other nine searching of‐
ficers, did. And there is no evidence connecting Officer
Willingham’s allegedly false report to Officer Berry’s
grand‐jury testimony. Without more, there is no basis to infer
that Officer Willingham’s allegedly false report precluded the
grand‐jury indictment from breaking the chain of causation
between Crutcher’s arrest and prosecution. Consequently,
Crutcher’s malicious‐prosecution claim against Officer
Willingham fails.
Crutcher relies on our decisions in Brooks v. City of Chicago,
564 F.3d 830, 833 (7th Cir. 2009), and McCann v. Mangialardi,
337 F.3d 782, 786 (7th Cir. 2003), to argue that an indictment
does not break the chain of causation when the defendant of‐
ficer includes false statements in his or her report. Neither of
these cases, however, addressed the effect that an intervening
indictment can have on a malicious‐prosecution claim against
a police officer. Rather, they concluded that the appellants
could not succeed on federal due‐process claims based on al‐
legedly false police statements that were better suited for
state‐law malicious prosecution claims.
10 No. 16‐1362
Crutcher’s malicious‐prosecution claim against the City
fails for the same reason and because it does not meet certain
standards governing actions against municipalities. To suc‐
ceed on a direct claim against a municipality, Crutcher must
identify “a policy or custom of the municipality that violates
the plaintiff’s constitutional rights.” Schor v. City of Chi.,
576 F.3d 775, 779 (7th Cir. 2009). To do so, he “must begin by
showing an underlying constitutional violation.” Id. Crutcher
does not make such a showing. He argues that §§ 8‐20‐040 and
8‐20‐140 of Chicago’s Municipal Code are unconstitutional.
But § 8‐20‐040 is unrelated to this case: It only appears in the
criminal complaint as the result of a scrivener’s error and was
not the basis for Crutcher’s arrest or prosecution. Further‐
more, Crutcher improperly introduced his argument regard‐
ing § 8‐20‐140 in his response to summary judgment.
Abuelyaman v. Ill. State Univ., 667 F.3d 800, 814 (“It is well set‐
tled that a plaintiff may not advance a new argument in re‐
sponse to a summary judgment motion.”)
B. Fourth Amendment
Colbert brought § 1983 claims against the named officers
and agents for violating his Fourth Amendment rights during
the search. “To survive summary judgment of a claim brought
under § 1983, this court focuses on ‘(1) whether the conduct
complained of was committed by a person acting under color
of state law; and (2) whether this conduct deprived a person
of rights, privileges, or immunities secured by the Constitu‐
tion or laws of the United States.’” Armato v. Grounds, 766 F.3d
713, 719–20 (7th Cir. 2014) (quoting Parratt v. Taylor, 451 U.S.
527, 535 (1981)). Defendants‐appellants clearly acted under
state law, as they are employed by the Chicago Police Depart‐
No. 16‐1362 11
ment and Illinois Department of Corrections and were enforc‐
ing state‐law conditions of supervised release. See id. at 720.
Colbert must also show, however, that a reasonable trier of
fact could find that the officers’ and agents’ conduct deprived
him of his Fourth Amendment rights. See id.
1. Searches of Colbert’s Person and Bedroom
In the second amended complaint, Colbert brought a
Fourth Amendment property‐damage claim, alleging in rele‐
vant part, “On March 31, 2011, defendants Willingham, Twee‐
dle, Johnson, and Hopkins … searched the residence of plain‐
tiff Colbert in an unreasonable manner, causing damage to
Colbert’s property.”
In his response at summary judgment, and now on appeal,
Colbert argues that this language supports allegations that
the officers searched his person with unreasonable force (and
thus, after taking his keys, entered his bedroom unlawfully).
Such a reading stretches the complaint’s language too far. In
Whitaker, we recognized the principle that “a party may nei‐
ther amend its pleadings by argument in opposition to sum‐
mary judgment nor introduce new theories of liability in op‐
position to summary judgment.” Whitaker v. Milwaukee Cty.,
Wis., 772 F.3d 802, 808 (7th Cir. 2014). Specifically, we held that
parties cannot “add entirely new factual bas[e]s … not previ‐
ously presented.” Id. We stressed, “It is factual allegations, not
legal theories, that must be pleaded in a complaint.” Id. Here,
Colbert does not allege sufficient facts to support his alternate
Fourth Amendment claims regarding his person and bed‐
room. Rather, these allegations require factual bases not ade‐
quately pled in the complaint.
12 No. 16‐1362
Colbert counters that various facts presented throughout
the depositions touch on these two new issues. Therefore, he
concludes, no new factual bases were required to put the par‐
ties on notice. “[A] court will not imply a party’s consent to
try an unpleaded claim,” however, “merely because evidence
relevant to a properly pleaded issue incidentally tends to es‐
tablish [that] unpleaded claim.” Reynolds v. Tangherlini,
737 F.3d 1093, 1106 (7th Cir. 2013) (citation and internal quo‐
tation marks omitted). Colbert did not adequately plead his
claims regarding the search of his person and bedroom, and
introducing them in his response to defendants‐appellants’
motion for summary judgment was not sufficient to survive
that motion.
2. Property Damage
Colbert also claims that the named officers and agents
damaged his property while conducting the search. As noted
above, Colbert alleged the following: “On March 31, 2011, de‐
fendants Willingham, Tweedle, Johnson, and Hopkins …
searched the residence of plaintiff Colbert in an unreasonable
manner, causing damage to Colbert’s property.” “[T]he
Fourth and Fourteenth Amendments provide a remedy when
a citizen’s property is unreasonably damaged during a
search.” Heft v. Moore, 351 F.3d 278, 282 (7th Cir. 2003) (citing
United States v. Ramirez, 523 U.S. 65, 71 (1998) (“Excessive or
unnecessary destruction of property in the course of a search
may violate the Fourth Amendment, even though the entry
itself is lawful and the fruits of the search are not subject to
suppression.”)). “[I]ndividual liability under § 1983,” how‐
ever, “requires personal involvement in the alleged constitu‐
tional deprivation.” Minix v. Canarecci, 597 F.3d 824, 833 (7th
Cir. 2010) (citation and internal quotation marks omitted). The
No. 16‐1362 13
plaintiff must demonstrate a causal connection between
(1) the sued officials and (2) the alleged misconduct. Wolf‐Lil‐
lie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983) (“Section 1983
creates a cause of action based on personal liability and pred‐
icated upon fault. An individual cannot be held liable in a
§ 1983 action unless he caused or participated in an alleged
constitutional deprivation … . A causal connection, or an af‐
firmative link, between the misconduct complained of and the
official sued is necessary.”).
Colbert is unable to satisfy § 1983’s personal‐responsibility
requirement at summary judgment. He sued four of ten
searching officers, alleging that they had caused property
damage. However, he later admitted that he was unable to
identify which of the ten searching officers had caused the al‐
leged property damage because he was not allowed in the
rooms while the officers conducted their search. Further, the
four sued officers denied causing any property damage. Had
Colbert faced a motion to dismiss, where district courts take
all well‐pleaded allegations as true, his theory of the case that
the four named officers were responsible for the alleged dam‐
age may have been sufficient. At summary judgment, how‐
ever, Colbert must put forth evidence to support that claim.
He did not. Finding no genuine dispute of material fact re‐
garding the named officers’ personal responsibility for the al‐
leged misconduct, summary judgment on this claim was
proper.
We recognize the potential tension between § 1983’s indi‐
vidual‐responsibility requirement and factual scenarios of the
kind present here: It may be problematic to require plaintiffs
to specifically identify which officers caused property dam‐
age when officers commonly remove these individuals from
14 No. 16‐1362
the search area. There can be acceptable reasons for officers to
clear a search area (e.g., officer and citizen safety, evidence
preservation), but doing so can risk effectively immunizing
officers from property‐damage claims by preventing a plain‐
tiff from observing the person responsible for the damage. We
have indicated, however, that plaintiffs in this context can still
satisfy § 1983’s personal‐responsibility requirement by in‐
cluding in their complaint allegations of misconduct that are
unaffected at summary judgment by the inability to observe
the search. For example, plaintiffs may allege that the named
officers participated in something akin to a “conspiracy of si‐
lence among the officers” in which defendants refuse to dis‐
close which of their number has injured the plaintiff. Molina
ex rel. Molina v. Cooper, 325 F.3d 963, 974 (7th Cir. 2003); see also
Hessel v. O’Hearn, 977 F.2d 299, 305 (7th Cir. 1992) (affirming
summary judgment for defendant officers, despite recogniz‐
ing the plaintiffs’ “bind,” in part because the plaintiffs had
“allege[d] no conspiracy”). In Molina, the plaintiffs alleged
that at least one of seventeen officers had damaged their
truck. The plaintiffs did not, however, “claim to have actually
seen any of the seventeen officers involved in the search dam‐
age the truck,” as the officers had handcuffed and removed
them from the search. Id. at 973. In affirming summary judg‐
ment for the officers, we noted that “the Molinas ha[d] not al‐
leged a conspiracy of silence among the officers (a move that
might have strengthened their argument that Hessel is inap‐
plicable), and the evidence linking Officer Cooper, one of sev‐
enteen officers who could conceivably have damaged the
truck, [was] simply too thin to survive summary judgment.”
Id. at 974. As a result, we concluded that “[n]o jury could rea‐
sonably infer … that Officer Cooper caused the damage to the
truck.” Id. (emphasis added).
No. 16‐1362 15
Colbert’s claim meets the same fate. Colbert, like the plain‐
tiffs in Molina and Hessel, did not allege anything like a “con‐
spiracy of silence.” Nor did he do so in his Second Amended
Complaint, which he filed after learning that appellees had
denied responsibility. And even if Colbert had alleged some‐
thing like an illegal agreement among the named officers, he
pointed to no evidence to support such misconduct. Without
more, no jury could reasonably conclude that these particular
defendants had any individual involvement in Colbert’s al‐
leged property damage. Thus, this claim does not survive
summary judgment.
This is not to suggest that plaintiffs in this context must
plead a particular legal theory. See King v. Kramer, 763 F.3d 635,
642 (7th Cir. 2014) (“A complaint need not identify legal theo‐
ries … .”) (citation omitted). Rather, in light of § 1983’s indi‐
vidual‐responsibility requirement, the plaintiff opposing
summary judgment in this context must at a minimum have
(1) pled a claim that plausibly forms a causal connection be‐
tween the official sued and some alleged misconduct, and
(2) introduced facts that give rise to a genuine dispute regard‐
ing that connection. Suing four of ten officers for alleged
property damage and then acknowledging the inability to
identify those actually responsible for the damage, as Colbert
did, does not satisfy that requirement—especially when the
sued officials deny having caused that damage. Instead, in the
setting of this case, alleging that those four officers colluded,
or conspired, to conceal the identities of those responsible for
the damage, for example, might well provide an avenue for
relief that sufficiently constructs the necessary causal connec‐
tion between the official and some wrongdoing, regardless of
whether the plaintiff was able to observe the search. As noted
earlier, Colbert did not make this allegation or present any
16 No. 16‐1362
supporting evidence, and he cannot, in his opposition to de‐
fendants’ motion for summary judgment, “amend [his] plead‐
ings[,] … introduce new theories of liability[,] … [or] add en‐
tirely new factual bas[e]s … not previously presented.” Whit‐
aker, 772 F.3d at 807–08.
Colbert does not address Molina or Hessel. Rather, he sug‐
gests we shift the burden of production and require the offic‐
ers to show that they did not cause any property damage. This
argument fails for two reasons. First, we have never adopted
such an approach. In fact, we have concluded that assuming
one of the searching officers must have been responsible for
the alleged misconduct “is not good enough to fend off sum‐
mary judgment.” Hessel, 977 F.2d at 305. This is because
“[p]roximity to a wrongdoer does not authorize punish‐
ment.” Id. “That leaves the pure principle of collective pun‐
ishment as the sole basis of liability … . Happily that principle
is not … a part of our law.” Id.
Second, even if we adopted Colbert’s burden‐shift ap‐
proach, he at least would have needed to have sued all of the
officers he had reason to believe were responsible for the al‐
leged property damage.8 Not requiring this condition, but al‐
lowing a burden‐shift, would promote random and frivolous
litigation against law‐enforcement officials. We have previ‐
8 The plaintiffs in Molina and Hessel may have sued all of the officers ar‐
guably responsible for the misconduct alleged in those cases; however, the
plaintiffs did not argue that the burden of production should shift to the
officers, so we did not resolve that issue. See Hessel, 977 F.2d at 305
(“Whether any such approach (so redolent of collective punishment)
might have been used by the plaintiffs in this case we need not decide:
they have not urged it.”).
No. 16‐1362 17
ously observed that § 1983 claims and accompanying “bur‐
den‐shift” arguments like those we now confront all sound in
res ipsa loquitur tort liability. See Hessel, 977 F.2d at 305 (citing
Ybarra v. Spangard, 25 Cal.2d 486 (1944)). To succeed on this
theory of liability in Illinois, plaintiffs must join “all parties
who could have been the cause of the plaintiff’s injuries … as
defendants.” Smith v. Eli Lilly & Co., 560 N.E.2d 324, 339–40
(Ill. 1990). Doing so ensures that “liability will surely fall on
the actual wrongdoer.” Id. at 340. Otherwise, “there is a real
possibility that the defendant actually responsible for the in‐
juries is not before the court.” Id. at 340. While it is possible
that “one or more defendants will be found liable and others
absolved, … this should not preclude the application of the
rule of res ipsa loquitur.” Ybarra, 25 Cal.2d at 492.
Colbert did not pursue either of the above alternative ave‐
nues. He sued four officials, but he did not allege that they
unlawfully agreed to conceal the identities of those who
caused the supposed property damage. And he alleged prop‐
erty damage, but he did not sue all of the officers who might
have been responsible for that damage. Instead, he inexplica‐
bly sued four of the ten searching officers and argued that
they caused the property damage while conceding that he
could not know which of the ten officers had caused said
damage. By proceeding in this way, Colbert created a risk that
the officer actually responsible for the alleged damage was
not before the court. Accordingly, in the present context, Col‐
bert does not satisfy § 1983’s individual‐responsibility re‐
quirement and his Fourth Amendment property‐damage
claim cannot survive summary judgment.
Colbert next relies on Miller v. Smith, 220 F.3d 491 (7th Cir.
2000), for the proposition that a § 1983 plaintiff can recover if
18 No. 16‐1362
he can show that an officer ignored a realistic opportunity to
intervene while other officers acted illegally. Though this gen‐
eral principle is true, a plaintiff still must make an individual
identification of the officers who failed to act, as explained
above. In Miller, the plaintiff narrowed his excessive‐force al‐
legation to two of six arresting officers. See id. at 495. Although
the plaintiff could not identify which of the two officers had
used excessive force, he did identify the remaining four offic‐
ers who stood by and, as a result, ignored a realistic oppor‐
tunity to intervene. See id. This satisfied § 1983’s individual‐
responsibility requirement. Here, Colbert does not specifi‐
cally identify any officer who was responsible for the alleged
damage, or any who turned a blind eye to other officers’ al‐
legedly illegal actions.
C. False Arrest
Finally, Colbert brought a § 1983 claim against the City of
Chicago for falsely arresting him by enforcing an allegedly
unconstitutional ordinance. “In order to state a § 1983 claim
against a municipality, the complaint must allege that an offi‐
cial policy or custom not only caused the constitutional viola‐
tion, but was ‘the moving force’ behind it.” Estate of Sims ex
rel. Sims v. Cty. of Bureau, 506 F.3d 509, 514 (7th Cir. 2007) (quot‐
ing City of Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989)). Un‐
less an unconstitutional policy caused the alleged injury, there
cannot be municipality liability. See id. at 514–15.
Officer Willingham’s arrest report initially listed
§ 8‐20‐040, which outlawed the possession of more than one
operable firearm per household, as the ordinance underlying
Colbert’s arrest. Colbert originally argued that this ordinance
was unconstitutional under McDonald v. City of Chicago,
561 U.S. 742 (2010). In response, Officer Willingham filed an
No. 16‐1362 19
affidavit clarifying that his reference to § 80‐20‐040 was a
scrivener’s error: He had intended to list the now‐repealed
§ 8‐20‐140 as the relevant provision, which, as of March 31,
2011, made it “unlawful for any person to carry or possess a
firearm without a firearm registration certificate.” Chi. Mun.
Code § 8‐20‐140(a). Despite this explanation, Colbert and
Crutcher continued in their second amended complaint to
challenge the constitutionality of § 8‐20‐040, without mention‐
ing § 8‐20‐140. As Colbert first challenged § 8‐20‐140 in his re‐
sponse opposing summary judgment, his argument is
waived. See Abuelyaman, 667 F.3d at 814.
Colbert, relying on cases involving substantive changes in
deposition testimony, see, e.g., Thorn v. Sundstrand Aero. Corp.,
207 F.3d 383, 389 (7th Cir. 2000), argues that the district court
should have allowed the jury to decide which ordinance was
actually underlying the charge (i.e., whether listing § 8‐20‐040
in the criminal charge was an honest mistake or something
more serious). Though Thorn dealt with substantive changes
to sworn deposition testimony, not police documents, we rec‐
ognized that “the correction of an error in transcription” is
permissible. Id. Here, Colbert does not point to anything that
conflicts with Officer Willingham’s affidavit explaining his
transcription error. Id.
Further, Colbert argues that it was the City’s burden to
show that § 8‐20‐140 was constitutional, relying on Ezell v. City
of Chicago, 651 F.3d 684 (7th Cir. 2011). In Ezell, however, we
explained that the City has the burden to justify “challenged
firearms law[s].” Id. at 702–03; see also Ezell v. City of Chi.,
846 F.3d 888, 892 (7th Cir. 2017) (reiterating the government’s
burden to justify a “challenged law”). Colbert did not
20 No. 16‐1362
properly challenge § 8‐20‐140; so the government had no bur‐
den to establish its constitutionality.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the
district court.
No. 16‐1362 21
HAMILTON, Circuit Judge, concurring in part and dissent‐
ing in part. I agree with my colleagues that we should affirm
summary judgment for defendants on the search of Colbert’s
person and bedroom (Part II‐B‐1) and the false arrest claim
(Part II‐C). I respectfully dissent, however, from the decision
to affirm summary judgment on Crutcher’s malicious prose‐
cution claim (Part II‐A) and Colbert’s property damage claim
(Part II‐B‐2). Plaintiffs have raised genuine issues of material
fact regarding these two claims.
The factual account provided by Crutcher and Colbert
may or may not be true, but that question is not before us. On
appeal from summary judgment, we must treat their evidence
as true and give them the benefit of reasonable inferences
from the evidence. Georgia‐Pacific Consumer Prods. LP v. Kim‐
berly‐Clark Corp., 647 F.3d 723, 727 (7th Cir. 2011).
Plaintiffs’ evidence tells a disturbing story. Crutcher and
Colbert describe a scene where, in the early morning hours of
March 31, 2011, officers taunted and terrorized them and their
families while destroying their home. Their testimony de‐
scribes in detail how officers threatened them, cursed them,
and struck them. They recount the fright of their children as
officers broke holes in the walls, cut open a couch, tore doors
off of cabinets, and more. They even describe an officer who
unholstered his firearm and threatened to shoot Crutcher’s
six‐week‐old puppy before leaving the dog outside, where it
was lost.1
1
In addition to the property damage discussed by the majority, ante at 3,
plaintiffs describe the officers damaging clothing, a weight bench, the
basement door, the steps, bedroom dressers, and an electronic tablet.
22 No. 16‐1362
This case raises larger questions about how courts should
address claims of law enforcement misconduct. These ques‐
tions are particularly pressing for members of our commu‐
nity, like plaintiffs, who are more likely to experience such
misconduct. Crutcher and Colbert are black men. It’s no secret
that people of color are disproportionately subject to police
misconduct. See Utah v. Strieff, 579 U.S. —,—, 136 S. Ct. 2056,
2070 (Sotomayor, J., dissenting); U.S. Dep’t of Justice Civil
Rights Division & U.S. Attorney’s Office Northern District of
Ill., Investigation of the Chicago Police Department 145 (Jan. 13,
2017) (finding that Chicago Police Department “has tolerated
racially discriminatory conduct that not only undermines po‐
lice legitimacy, but also contributes to [a] pattern or practice
of unreasonable force”). Part I addresses Colbert’s claim for
property damage based on unreasonable execution of the
search. Part II addresses Crutcher’s claim for malicious pros‐
ecution.
I. Colbert’s Property Damage Claim
A. Unreasonable Execution of the Search
This first issue stems from the combination of the regime
of individual liability under 42 U.S.C. § 1983 and a reasonable
but intrusive police practice to ensure safety during searches
of homes: securing residents where they cannot interfere
with, but also cannot see, the execution of the search. See
Michigan v. Summers, 452 U.S. 692 (1981). “Excessive or unnec‐
essary destruction of property in the course of a search may
violate the Fourth Amendment, even though the entry itself
Crutcher testified that officers dismantled his stereo and television, dam‐
aging them in the process, and that officers destroyed photographs of his
grandmother, leaving them “balled up” and covered in dog feces.
No. 16‐1362 23
is lawful and the fruits of the search are not subject to sup‐
pression.” United States v. Ramirez, 523 U.S. 65, 71 (1998); see
also Johnson v. Manitowoc County, 635 F.3d 331, 335 (7th Cir.
2011); Green v. Butler, 420 F.3d 689, 694–95 (7th Cir. 2005); Law‐
master v. Ward, 125 F.3d 1341, 1349–50 & n.3 (10th Cir. 1997)
(reversing summary judgment in part; searching officers left
plaintiff’s gun in dog’s water bowl and left cigar and cigarette
ashes in his bedding).
The problem is, if officers carry out a search in an unrea‐
sonable way, causing unnecessary or excessive destruction,
how can the residents and ultimately courts hold accountable
the individual officers responsible for the misconduct? The
majority concludes that Colbert cannot reach a jury with his
property damage allegations because he cannot identify who
broke what. Colbert is unable to do this because the officers
handcuffed him and prevented him from observing the
search. Ante at 13. The majority emphasizes that Colbert did
not sue every officer at the scene, noting that it is possible
none of the named defendants are responsible for the dam‐
age. Ante at 15. Things might have been different, the major‐
ity says, if Colbert had alleged a “conspiracy of silence” in his
complaint. While I am pleased that the majority offers a solu‐
tion for the problem, its solution sets too high a bar for plain‐
tiffs in Colbert’s situation.
First, this is not a pleading deficiency. A plaintiff is not re‐
quired to plead legal theories in his complaint. King v. Kramer,
763 F.3d 635, 642 (7th Cir. 2014) (“A complaint need not iden‐
tify legal theories, and specifying an incorrect theory is not a
fatal error.”), quoting Rabé v. United Air Lines, Inc., 636 F.3d
866, 872 (7th Cir. 2011). This rule makes sense, particularly in
a case like this. When Colbert filed his original complaint, he
24 No. 16‐1362
did not know the officers would deny any recollection of
breaking his property. At that time there was no “conspiracy
of silence” to allege. The majority notes that Colbert did not
allege a conspiracy of silence in his second amended com‐
plaint, which he filed after learning that the officers denied
responsibility. Ante at 15. That’s true but it shouldn’t matter.
A plaintiff is not required to plead legal theories in his second
amended complaint either. (In any event, if we are going to
insist that these matters be in the pleadings, then district
courts will need to be liberal in allowing amendments along
these lines. See Fed. R. Civ. P. 1 & 15(a)(2).)
During their depositions, the officers claimed they did not
remember many of the events from March 31, 2011. Since
those depositions, Colbert has argued quite clearly in the dis‐
trict court, Dkt. No. 75 at 14–15, and in this court that the of‐
ficers are conspiring to deny their wrongdoing. Colbert’s brief
here argues: “For example, defendants Tweedle and Johnson
will, if they testify in accordance with their deposition testi‐
mony, admit to having been present but will deny any recol‐
lection of the search of Colbert’s residence. … At trial, plain‐
tiffs expect each defendant to deny wrongdoing; the jury
should be permitted to assess the credibility of these claims.”
It is unclear what else Colbert should have said to assert a
“conspiracy of silence.”2
2 In Molina v. Cooper, 325 F.3d 963, 974 (7th Cir. 2003), and Hessel v.
O’Hearn, 977 F.2d 299, 305 (7th Cir. 1992), we used the verb “allege” in
discussing the possibility that a conspiracy of silence could shift the bur‐
den of production. Appellate opinions would be clearer if courts always
took care to distinguish between what parties “allege” (in pleading), “tes‐
tify” (in evidence), and “argue” or “contend” (in briefs and oral argu‐
ment). Unfortunately, courts do not always keep those verbs separate.
Nothing in Molina or Hessel indicates that the panels were suggesting a
No. 16‐1362 25
Second, by dismissing Colbert’s claim because he did not
sue enough officers, see ante at 16–17, the majority invites fu‐
ture plaintiffs to sue every officer on the scene and to sort out
later the issues of individual liability. This will needlessly
drag law enforcement officers into litigation where they had
little or no involvement in the underlying conduct. Suppose
Colbert had sued all ten officers and all ten denied participat‐
ing in the specific acts of property destruction. Those denials,
combined with evidence that the damage occurred and was
inflicted in the course of the search, would be circumstantial
evidence permitting a reasonable inference that there was a
conspiracy of silence among the officers. In light of this deci‐
sion, plaintiffs in similar cases will be well‐advised to pursue
that approach.
There is at least one better approach in cases like this—
cases where a plaintiff offers evidence that officers acted un‐
reasonably in the search and took steps to prevent the plaintiff
from identifying who caused the damage. It would be to shift
the burden of production to the defendants on the issue of in‐
dividual responsibility. The majority refers to this approach,
ante at 16, and other circuits have used this method to varying
degrees. When faced with a similar situation where officers
masked their identities, the Sixth Circuit permitted the district
court to shift the burden of production on remand: “Although
an officer’s mere presence at the scene of a search is insuffi‐
cient to establish individual liability under § 1983, here the
agents’ intent to conceal contributed to plaintiffs’ impaired
ability to identify them.” Burley v. Gagacki, 729 F.3d 610, 622
(6th Cir. 2013) (citations omitted); see also Burley v. Gagacki,
new pleading requirement, which in any event would be difficult to justify
in light of more general pleading standards.
26 No. 16‐1362
834 F.3d 606, 615 (6th Cir. 2016) (later appeal clarifying that
even if burden of production is shifted to defendant, plaintiff
still has burden of persuasion).
The Ninth Circuit likewise has used burden‐shifting in
certain instances where plaintiffs cannot learn the identity of
the officers involved. See, e.g., Dubner v. City and County of San
Francisco, 266 F.3d 959, 965 (9th Cir. 2001) (“Although the
plaintiff bears the burden of proof on the issue of unlawful
arrest, she can make a prima facie case simply by showing
that the arrest was conducted without a valid warrant. At that
point, the burden shifts to the defendant to provide some ev‐
idence that the arresting officers had probable cause for a war‐
rantless arrest. The plaintiff still has the ultimate burden of
proof, but the burden of production falls on the defendant.”);
Johnson v. BART, 724 F.3d 1159, 1173 (9th Cir. 2013) (holding
that burden‐shifting approach applies only where officers are
required to show probable cause).
Here, Colbert offers evidence that the officers carried out
their search in an unreasonable way, causing a great deal of
unnecessary damage. He cannot identify which officers broke
which items because he was restrained. I am not criticizing
the police practice of preventing residents from interfering
with an otherwise lawful search. That will often make sense
for everyone’s safety. But where the police, for these presum‐
ably legitimate reasons, made it impossible for the residents
to know which individual officers carried out which actions,
the burden of production should shift to these four defend‐
ants. If a defendant seeks summary judgment, he must pre‐
sent evidence that he is not personally liable for the unreason‐
able search, either by identifying who caused the damage or
No. 16‐1362 27
through some other means. Otherwise, the matter should pro‐
ceed to trial so a jury can evaluate credibility. At trial, Colbert
would still have the ultimate burden of persuasion.
This burden‐shifting approach would retain the regime of
individual responsibility under § 1983 without resorting to
what the majority calls “collective punishment.” See ante at
16. This approach is only a procedural adjustment, shifting
the burden of production based on the defendants’ own ac‐
tions when they act together. The burden of persuasion would
still remain with the plaintiff.
I would welcome better solutions to this problem, but a
solution is needed. This burden‐shifting approach would fit
with the requirement of personal responsibility without inter‐
fering with officers’ ability to restrain occupants so they can
conduct safe and effective searches. It would also prevent the
unjust effect of allowing officers to sequester residents and
then destroy a home with impunity.
B. Failure to Intervene
Colbert also provided sufficient evidence to support liabil‐
ity for each of the four defendants for an unreasonable search
on a theory of failure to intervene. It is well established that
an officer may be liable if she witnesses another officer violat‐
ing a civilian’s constitutional rights, has a reasonable oppor‐
tunity to intervene, and fails to do so. See, e.g., Miller v. Smith,
220 F.3d 491 (7th Cir. 2000) (“An official satisfies the personal
responsibility requirement of § 1983 if she acts or fails to
act with a deliberate or reckless disregard of the plaintiff’s
constitutional rights.”), citing Crowder v. Lash, 687 F.2d 996,
1005 (7th Cir. 1982) (emphasis in original).
28 No. 16‐1362
Miller is instructive. A motorist sued under § 1983 for ex‐
cessive use of force, among other claims. He alleged that state
police officers beat him while he was handcuffed, face down
on the ground. As we explained, the district court granted
summary judgment for the defendants “because Miller could
neither identify the officer who allegedly attacked him, or oth‐
erwise support his claim with sufficient facts.” Id. at 493. We
reversed. We noted that if one of the officers was beating Mil‐
ler, “whichever officer was not directly responsible for the
beating was idly standing by.” Id. at 495. We concluded: “If
Miller can show at trial that an officer attacked him while an‐
other officer ignored a realistic opportunity to intervene, he
can recover.” Id. We should take the same approach to Col‐
bert’s claim for an unreasonable search.
Colbert claims that, at minimum, the four officers failed to
intervene when their fellow officers searched his home in an
unreasonable manner. The majority notes that Colbert did not
observe the officers failing to intervene. Ante at 18. But we did
not require such evidence in Miller. Even though Miller did
not observe the officers failing to intervene during his beating
(he was face down), it was sufficient that the other officers
were “nearby.” Miller, 220 F.3d at 495. The same is true here.
The majority claims that Colbert has failed to “identify any
officer … who turned a blind eye to other officers’ allegedly
illegal actions.” Ante at 18. But Colbert has identified four in‐
dividual officers and provided evidence of their failure to act.
As the officers themselves testified, Colbert’s home was “a
very small residence” with only a few rooms. According to
testimony, the officers’ search was incredibly loud and dis‐
ruptive, as one might expect when doors are torn from their
hinges. The four defendants were necessarily close to any
No. 16‐1362 29
other officers in the home, and they failed to intervene. We
required no more in Miller. We should require no more here.
Defendants may argue, of course, that they did not notice
their colleagues in the next room putting holes in the walls.
The plausibility of that argument should be a jury issue.
II. Crutcher’s Malicious Prosecution Claim
Plaintiff Crutcher sued under state law for malicious pros‐
ecution. Crutcher testified that Officer Willingham falsely re‐
ported that he had confessed to knowing there was a shotgun
in the closet of Colbert’s locked bedroom. According to
Crutcher, Officer Willingham lied in the arrest report because
Crutcher was unable to provide inside information about a
gang. Crutcher described a series of exchanges where
Willingham asked for gang intelligence, grew angry when
Crutcher was unable to give any tips, and then threatened “if
you don’t give me the information I want, [you’re] going
down for the rest of your life.” This evidence supports an in‐
ference of malice, in my view, and the majority does not dis‐
agree. The majority rejects Crutcher’s claim, however, on the
theory that even if Officer Willingham did lie, the grand jury
indictment broke the chain of causation between his lie and
Crutcher’s prosecution. Ante at 9. I disagree, at least for pur‐
poses of summary judgment.
A. Grand Jury Indictment and Chain of Causation
First, the “broken chain of causation” cases show that an
officer who wrongly arrests is not necessarily liable for the
later decision to maliciously prosecute. I agree. The bad actor
in a false arrest is not necessarily the same as in a malicious
prosecution. See Reed v. City of Chicago, 77 F.3d 1049, 1053 (7th
30 No. 16‐1362
Cir. 1996) (“[T]he State’s Attorney, not the police, prosecutes
a criminal action.”).
In this case, however, the claim is based not on a wrongful
arrest but on Willingham’s alleged lie after the arrest in the
arrest report. Crutcher’s claim is that after the officers arrested
him, Willingham took malicious steps to ensure his prosecu‐
tion. This claim fits squarely within the rule the majority cites
from Reed: “the chain of causation is broken by an indictment,
absent an allegation of pressure or influence exerted by the police
officers, or knowing misstatements by the officers to the pros‐
ecutor.” Ante at 8, citing Reed, 77 F.3d at 1053 (emphasis al‐
tered). There is evidence that Willingham acted to influence
the prosecution by lying in the report after Crutcher’s arrest.
Second, as a practical matter, the majority never confronts
the implausibility of its assumption. According to the major‐
ity, the prosecutor never told the grand jury about Crutcher’s
alleged admission in the arrest report. That is, the prosecutor
seeking the indictment for knowing possession of a firearm
that was found in someone else’s locked bedroom never pre‐
sented the grand jury with information that Crutcher had con‐
fessed he knew the gun was in the home. On this record, Of‐
ficer Willingham’s arrest report was the prosecutor’s only ev‐
idence that Crutcher knew about the gun in Colbert’s bed‐
room closet. I find it difficult to believe that a competent pros‐
ecutor would fail to present this evidence to a grand jury. At
the very least, we should not make such an improbable as‐
sumption in favor of the defense in reviewing summary judg‐
ment for the defense.
No. 16‐1362 31
B. Absence of Probable Cause
Since the majority disposes of Crutcher’s claim based on
the grand jury indictment, it does not reach the defendants’
argument that there was probable cause to prosecute
Crutcher for knowing possession of the shotgun. This argu‐
ment also should fail. Crutcher’s evidence would let a jury
find that he was prosecuted without probable cause.
The charges against Crutcher required proof that he knew
a firearm was in the home. He claims he did not know about
the gun in the closet of Colbert’s locked bedroom. Officer
Willingham claims that Crutcher confessed to knowing.
Crutcher testified he did not confess as much. This conflicting
evidence presents a genuine issue of material fact.
Defendants also argue that, even without Officer Willing‐
ham’s alleged lie, there was probable cause that Crutcher
knew about the gun. They argue that a tipster told Willing‐
ham that he saw Crutcher holding the two guns in the home.
This tip was then corroborated, defendants claim, when the
officers found one specific gun (the shotgun) and the holster
for the other gun that the tipster had mentioned.
The majority seems to take the tip as undisputed fact, but
the tip should not defeat summary judgment for three rea‐
sons. First, as the district court noted, there are significant
problems with Willingham’s testimony on the tipster. “Of‐
ficer Willingham failed to provide any details about the pur‐
ported reliability of the informant, despite fervent question‐
ing by Plaintiff’s counsel.” The district court thus decided to
treat the cooperating individual as an anonymous tipster, and
to give the statements less weight.
32 No. 16‐1362
Second, there is a credibility issue as to which came first,
the search or the supposed tip. We have no record of the tip
before the search. Even Willingham’s arrest report did not men‐
tion it. The first mention apparently came in Willingham’s
deposition. Thus, based on the record before us, Willingham
never claimed there was a tip about seeing Crutcher with the
guns until after he was sued.
Third, as if those problems were not enough, Crutcher’s
testimony conflicts with Willingham’s account of the tip
about guns. According to Crutcher, when the officers first ar‐
rived they were searching not for guns but for drugs.
Crutcher testified that when Willingham entered the home,
he used slang for drugs to ask first: “Where’s the diesel?”
Willingham said he had received a tip “that y’all had some
drugs,” and he accused Crutcher of flushing them down the
toilet. As the officers went through the house, they further in‐
dicated that they were looking for drugs, for instance by
searching through the sugar in the kitchen. According to
Crutcher, the officers did not mention guns until the end of
the search.
Viewing the evidence through a summary judgment lens
favorable to plaintiffs, then, the police and prosecution had
no evidence that Crutcher knew about the shotgun and hol‐
ster found upstairs in Colbert’s locked bedroom. Crutcher
should be able to present his claim for malicious prosecution
to a jury.