In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1010
A BRAHAM C ARMICHAEL and
K EITH S AWYER,
Plaintiffs-Appellants,
v.
V ILLAGE OF P ALATINE, ILLINOIS,
T IMOTHY S HARKEY and STEVE B USHORE,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:07-cv-05221—Virginia M. Kendall, Judge.
A RGUED F EBRUARY 10, 2010—D ECIDED M AY 21, 2010
Before R IPPLE, M ANION and W ILLIAMS, Circuit Judges.
R IPPLE, Circuit Judge. Abraham Carmichael and Keith
Sawyer brought this action alleging Fourth Amendment 1
1
The plaintiffs divided their complaint into eight counts,
the first three of which presented the federal claims. Count
(continued...)
2 No. 09-1010
violations under 42 U.S.C. § 1983 against Officers
Timothy Sharkey and Steve Bushore and against the
officers’ employer, the Village of Palatine (“Village”). They
also alleged supplemental state claims arising out of the
same incident.2 The defendants moved for summary
judgment on all claims against all parties, which the
district court granted in its entirety. Mr. Carmichael and
Mr. Sawyer now appeal. We conclude that the district court
erred with respect to its treatment of two of the plaintiffs’
claims, namely those related to the authority to make the
initial stop and to the manner in which Mr. Sawyer was
searched. We therefore reverse and remand in part the
judgment of the district court.
1
(...continued)
I alleged an unreasonable search and seizure, Count II alleged
unlawful arrest and Count III alleged that the officers on
the scene had used excessive force, all in violation of the Fourth
Amendment. R.38.
2
The plaintiffs’ state law claims were as follows: Count
IV alleged false imprisonment of Mr. Carmichael without
probable cause; Count V alleged malicious prosecution of
the case against Mr. Carmichael by Officer Sharkey; Count VI
alleged intentional infliction of emotional distress on
Mr. Carmichael by Officer Sharkey. Counts VII and VIII did
not include additional substantive legal contentions, but alleged
that the Village of Palatine was liable for Officer Sharkey’s
actions under a theory of respondeat superior and a state statute
providing for the indemnification of public employees. Id.
No. 09-1010 3
I
BACKGROUND
A.
On September 15, 2006, Mr. Sawyer and Mr. Carmichael
met up with three women on the south side of Chicago.
Mr. Carmichael and one of the women, Kita,3 smoked
marijuana together, and then all five individuals drove, in
Kita’s car, to a motel where they proceeded to drink and
use other drugs. After some time, Mr. Carmichael
borrowed Kita’s car and drove to a nearby store.
Mr. Sawyer rode along as a passenger; the women stayed
behind.
As the men returned from the store to the motel
parking lot and were beginning to exit the car, they heard
someone order them to “freeze.” R.78, Ex. 2 at 50.
Mr. Carmichael turned and observed Officer Timothy
Sharkey some ten-to-twelve feet away with his service
revolver pointed at them. Following Officer Sharkey’s
commands, Mr. Carmichael stepped back into the car
and placed his hands on the steering wheel. Officer
Sharkey then approached and asked for Mr. Carmichael’s
license; Mr. Carmichael admitted that he did not have
it. Instead, he produced a state ID. Officer Sharkey took the
ID and went to his squad car.
When Officer Sharkey returned to the car containing
the plaintiffs, he informed Mr. Carmichael that his license
had been revoked. He asked for the vehicle information,
3
The record does not disclose Kita’s full name, nor does it
disclose the names of the other women involved.
4 No. 09-1010
including insurance and registration; Mr. Carmichael could
not produce them. Mr. Carmichael informed Officer
Sharkey that the car belonged to someone else.
Officer Sharkey ordered Mr. Carmichael out of the
car and conducted a search of his person without consent.
The search turned up a bag of marijuana in
Mr. Carmichael’s jeans pocket. Mr. Carmichael then was
handcuffed. By this time, Officer Steve Bushore had
arrived on the scene.
Officer Sharkey next ordered Mr. Sawyer out of the
car. Officer Sharkey conducted a pat-down search of
Mr. Sawyer and handcuffed him as well. At this time,
Mr. Sawyer asked Officer Sharkey why the men had
been stopped. Officer Sharkey replied that he had pulled
them over because the car did not have a front license
plate and had tinted front windows. Officer Sharkey
recanted these statements later and has maintained
for some time—including in his official report from the
night in question and in the proceedings in the district
court in this case—that he stopped the car only because
it did not have operational tail or brake lights. Kita’s car
did not, in fact, have a front license plate, because it
had only a temporary rear plate. With regard to the
tinted windows, the plaintiffs claim that the facts are in
dispute. However, we agree with the district court that
Mr. Carmichael’s own deposition testimony and the
photographs of the car establish that, at minimum, the
driver’s side front window was tinted. The plaintiffs
presented no contrary evidence on this issue. There is
a dispute about whether the window was down and
therefore, whether the tint was visible at the time of the
No. 09-1010 5
initial stop. Notably, Officer Sharkey later admitted that,
at the time of the stop, he was unaware of the car’s tinted
windows and also admitted “that tinted windows had
nothing to do with his arrest of Carmichael.” R.87 at 2
(Defendants’ Response to Plaintiffs’ 56.1 Statement).
Officer Sharkey further admitted that he did “not know
whether or not the vehicle that Carmichael was driving
had a front license plate.” Id.
Leaving the plaintiffs under the supervision of Officer
Bushore, Officer Sharkey next conducted a full search
of the interior of Kita’s car. He uncovered a bag containing
a significant quantity of crack cocaine. Officer Sharkey
then returned to Mr. Sawyer and conducted a more
complete search, the details of which are not in
significant dispute. Officer Sharkey pulled Mr. Sawyer’s
pants partially down and pulled his underwear away
from his body. Officer Sharkey shone a flashlight into
Mr. Sawyer’s pants and, when the search was complete,
informed Mr. Sawyer that he was free to go.
Mr. Carmichael was placed under arrest and was
taken to the Palatine police station. There, he was subjected
to a full strip search. He received a citation for operating
a vehicle without a license and for having no functioning
taillights. He did not receive a citation for lack of a front
plate or for operating a vehicle with tinted windows. He
also was charged with a series of offenses related to the
drugs recovered in the search of his person and of the
vehicle.
In Mr. Carmichael’s subsequent criminal proceedings,
the Illinois judge set his bond at $100,000. Because he
was unable to post bond, Mr. Carmichael remained in
6 No. 09-1010
custody for the four months that charges were pending
against him.
At a hearing on Mr. Carmichael’s motion to quash
the arrest and to suppress the evidence obtained in
the search, Officer Sharkey testified that the car had
been stopped because it did not have functioning tail or
brake lights, not because of the window tint or front
license plate issues, the grounds he had mentioned
in response to Mr. Sawyer’s inquiry. It was stipulated that
Kita’s car had been towed from the motel to a
body shop following the arrest and that the vehicle
had remained in that location. An investigator employed
by Mr. Carmichael’s attorney had gone to the shop
and had examined the vehicle; he testified that he had
found its taillights to be operational. Based on this
testimony, the trial judge in the criminal case concluded
that probable cause did not support the initial seizure and
granted Mr. Carmichael’s motion to suppress. Indeed,
the court stated that it “believe[d] that [Officer Sharkey]
out and out lied in this courtroom” when he represented
that he pulled the car over because of non-functioning
taillights. R.78, Ex. 8 at 16. The court suggested, on the
record, that the officer should be investigated and the
case referred to the “civil rights violation department.” Id.
On motion of the prosecutor, the charges against
Mr. Carmichael were dropped.
B.
Mr. Carmichael and Mr. Sawyer then brought
this civil rights action in the district court against Officers
No. 09-1010 7
Bushore and Sharkey and the Village. As we have noted,
their complaint raised a variety of claims under
§ 1983, including unreasonable search and seizure, false
arrest and excessive force, as well as a variety of
pendent state law claims. The officers and the Village
moved for summary judgment, contending principally
that the plaintiffs had admitted sufficient facts to
require a finding that probable cause supported the stop,
the searches and the subsequent arrest. Specifically, the
defendants noted that it is undisputed that, during the
stop and search, Officer Sharkey told Mr. Carmichael
and Mr. Sawyer that they had been stopped because of
tinted windows and the absence of a front plate; both
could have been violations of Illinois law sufficient
to provide probable cause. Therefore, the defendants
claimed, the search was objectively reasonable under the
plaintiffs’ version of the facts, and summary judgment was
appropriate.
The district court held that Mr. Carmichael and
Mr. Sawyer had waived many of their claims, including
those for excessive force, unlawful detention of Mr. Sawyer
and all of the state law claims. Turning to the Fourth
Amendment search and seizure claims, the district court
concluded that the fact of tinted windows and the lack
of a front plate provided adequate probable cause for the
initial stop, even though those violations were different
than the officer’s sworn statement providing his reasons
for the stop (non-operating taillights). The district court
specifically noted that
the undisputed facts show that at the time Sharkey
made the traffic stop, he knew that the car that
8 No. 09-1010
Carmichael had been driving had tinted windows and no
front license plate because he cited those reasons to
Carmichael and Sawyer when they asked why he
stopped their car and those statements are
supported by the photos of the car that are in
evidence.
R.94 at 12 (emphasis added). Because the probable
cause inquiry turns on the conclusions that a
reasonable officer could draw from “ ’the facts known
to the [officer], when viewed objectively,’ ” the district
court concluded that there had been no Fourth
Amendment violation at the time of the stop. Id. (quoting
Williams v. Rodriguez, 509 F.3d 392, 401 (7th Cir. 2007)
(modification in original)). Concluding that the objective
facts were sufficient to support the initial stop, the court
saw no constitutional violation in the stop or in the
subsequent search and arrest. The district court also
rejected Mr. Sawyer’s claim that he had been subjected
to an unreasonable search, concluding that a search of
all the individuals in the vehicle was constitutional after
the discovery of the drugs. The court did not examine,
in any significant detail, whether the search was
carried out in an unreasonable manner.
II
DISCUSSION
We review de novo a grant of summary judgment.
Reget v. City of LaCrosse, 595 F.3d 691, 695 (7th Cir.
2010). Summary judgment is appropriate when “the
No. 09-1010 9
pleadings, the discovery and disclosure materials on
file, and any affidavits show that there is no genuine
issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(c)(2). We view the facts in the light most favorable
to the non-moving parties, here, Mr. Carmichael and
Mr. Sawyer, and we draw all reasonable inferences in their
favor. Reget, 595 F.3d at 695.
A.
The Officers and the Village submit that the
initial stop was supported by probable cause and
therefore was reasonable under the Fourth Amendment.
Specifically, they contend that Officer Sharkey had
probable cause to believe that Mr. Carmichael had violated
Illinois law in operating a vehicle with tinted front
windows and without a front license plate. See 625 ILCS
5/12-503(a-5), 5/3-413(a). They further contend that Officer
Sharkey’s statements to the contrary in the arrest report, at
the criminal trial and in his deposition that the reason for
the stop was, instead, inoperative tail or brake lights, are
irrelevant.
The Fourth Amendment to the Constitution protects
“[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures.” U.S. Const. Amend. IV. Over time,
the Supreme Court has developed a series of corollary
principles to give effect to this basic constitutional
mandate in the particular context of automobile searches.
The temporary detention of an individual during the
stop of an automobile by the police, even if only for
10 No. 09-1010
a short period of time and for a limited purpose,
constitutes the seizure of a person within the meaning of
this constitutional provision. See Delaware v. Prouse, 440
U.S. 648, 653 (1979). Consequently, an automobile stop
is subject to the “constitutional imperative that it
not be ‘unreasonable’ under the circumstances.” Whren
v. United States, 517 U.S. 806, 810 (1996). “As a general
matter, the decision to stop an automobile is reasonable
where the police have probable cause to believe that
a traffic violation has occurred.” Id.; see United States
v. Watson, 423 U.S. 411, 417-18 (1976); Brinegar v. United
States, 338 U.S. 160, 164 (1949).4 “Whether probable cause
4
Under certain circumstances, the stop of an automobile
without probable cause related to a vehicle violation or any
other crime is reasonable under the Fourth Amendment. The
Supreme Court has upheld the use of checkpoints in which brief
stops are made without any individualized suspicion. Michigan
Dep’t of State Police v. Sitz, 496 U.S. 444, 455 (1990) (temporary
sobriety checkpoints stopping all vehicles); United States v.
Martinez-Fuerte, 428 U.S. 543, 562 (1976) (fixed immigration
checkpoint in the interior of the United States). The Court also
has approved of minimally invasive stops conducted by roving
patrols near the border to question occupants about immigration
status on something less than probable cause. United States v.
Brignoni-Ponce, 422 U.S. 873, 884 (1975) (plurality opinion)
(requiring reasonable suspicion). But see City of Indianapolis v.
Edmonds, 531 U.S. 32, 41 (2000) (vehicle checkpoints “to detect
evidence of ordinary criminal wrongdoing,” such as narcotics,
without individualized suspicion violate the Fourth Amend-
ment); Almeida-Sanchez v. United States, 413 U.S. 266 (1973)
(probable cause necessary for search of any vehicles conducted
(continued...)
No. 09-1010 11
exists depends upon the reasonable conclusion to be
drawn from the facts known” to the officer at the time
he acts. Devenpeck v. Alford, 543 U.S. 146, 152 (2004). The
Supreme Court has made clear that the probable cause
inquiry is an objective one; the subjective motivations of
the officer do not invalidate a search otherwise supported
by probable cause. Whren, 517 U.S. at 812-13 (collecting
cases). Importantly, however, “probable cause depends
not on the facts as an omniscient observer would perceive
them but on the facts as they would have appeared to
a reasonable person in the position of the arresting
officer—seeing what he saw, hearing what he heard.”
Mahoney v. Kesery, 976 F.2d 1054, 1057 (7th Cir. 1992)
(emphasis in original); see also Devenpeck, 543 U.S. at
153 (“Our cases make clear that an arresting officer’s state
of mind (except for the facts that he knows) is irrelevant to
the existence of probable cause.” (emphasis added));
Williams v. Rodriguez, 509 F.3d 392, 398 (7th Cir. 2007)
(noting that probable cause exists at the moment when
“the facts and circumstances within [the officers’]
knowledge and of which they have reasonably trustworthy
information are sufficient to warrant a prudent person
in believing that the suspect had committed an offense”
(internal quotation marks omitted)).
These principles require, then, that we focus our
inquiry on the objective reasonableness of the officer’s
4
(...continued)
by roving immigration patrols several miles into the interior of
the United States).
12 No. 09-1010
conduct on “whether, at the moment the arrest was
made, the officers had probable cause to make it—whether
at that moment the facts and circumstances within
their knowledge and of which they had reasonably
trustworthy information were sufficient to warrant a
prudent man in believing that the petitioner had
committed or was committing an offense.” Beck v. Ohio,
379 U.S. 89, 91 (1964). The reasonableness of the seizure
turns on what the officer knew, not whether he knew the
truth or whether he should have known more. Reynolds
v. Jamison, 488 F.3d 756, 765 (7th Cir. 2007). We “only
care about what the officer knew at the time the decision
was made.” Id.
The district court concluded that Officer Sharkey
observed the possible vehicle violations regarding the
plates and the tinted windows when he made the stop
because he verbally cited those reasons in answer to an
inquiry from Mr. Sawyer during the stop. Notably,
however, by the time he uttered those reasons to
Mr. Sawyer, Officer Sharkey was well into his investigation
and knew a great deal more about the men, the
contraband and the car than he had known when he drew
his service revolver and shouted “freeze.” Indeed, at that
time, he already knew that the car contained drug
paraphernalia and that Mr. Carmichael had operated the
vehicle without a license. He knew that Mr. Carmichael
had marijuana on his person. None of these facts, however,
assists us in determining whether at the moment that
Officer Sharkey made the stop, he had sufficient facts to
conclude that probable cause existed to believe traffic
No. 09-1010 13
laws had been violated. See Reynolds, 488 F.3d at 765
(“The fact that an officer later discovers additional
evidence unknown to her at the time of the arrest . . .
is irrelevant—we only care about what the officer knew at
the time the decision was made.”).
Officer Sharkey has, from the moment he filed the
arrest report, maintained that his reason for stopping
the car was inoperative tail and brake lights. More
importantly, however, all of the defendants, including
Officer Sharkey, admitted, in their response to plaintiffs’
56.1 statement, that Officer “Sharkey did not observe
tinted windows on the vehicle Carmichael was driving
before he stopped the vehicle,” and that he “does not
know whether or not the vehicle that Carmichael was
driving had a front license plate.” R.87 at 2 (emphasis
added); see also R.78, Ex. 8 at 6 (noting, in response to
plaintiffs’ counsel’s question about whether Officer
Sharkey knew that the car had tinted windows, that he
“did not observe anything else [other than the brake lights]
on the vehicle that [he] knew to be a traffic violation at
the time.” (Sharkey dep. at 24) (emphasis added)). Officer
Sharkey’s statement to Mr. Sawyer about tinted windows
and a front license plate may be based on what he
observed after the stop, but, by his own admission, they are
not what he knew when he effected the stop. Accordingly,
we must conclude that the district court misapprehended
the record when it based its determination that Officer
Sharkey had probable cause to effect the arrest on the basis
of tinted windows and the absence of a front license plate.
Our earlier discussion should make clear—but we pause
to emphasize—that our focus on the facts Officer
14 No. 09-1010
Sharkey knew at the time that he decided to stop
the vehicle, as evidenced by the defendants’ admission
and Officer Sharkey’s own statements, should not be
misread as adopting a subjective standard that focuses
on Officer Sharkey’s motivations. See Williams, 509 F.3d
at 398-99. Indeed, this case involves a straightforward
application of the objective test set forth by the Supreme
Court in Whren, which requires us to evaluate probable
cause from the perspective of a reasonable officer who
saw what Officer Sharkey saw and heard what he heard.
See United States v. Parra, 402 F.3d 752, 764 (7th Cir. 2005).
The objective perspective dictated by Whren and its
progeny prevents courts from eschewing objective facts
in favor of evaluating the subjective motivations of
a particular officer; however, it is not meant to give
an arresting officer the added benefit of any facts that
come to light after a relevant Fourth Amendment decision
has been made. See Devenpeck, 543 U.S. at 153, 154 (noting
the purposes of the objective test, including its assurance
“that the constitutionality of an arrest under a given set
of known facts” will not vary “from place to place and
from time to time” (internal quotation marks omitted)).
The record before us requires us to conclude that the
district court erred in finding that probable cause
supported the stop. The court did not fail to use the
objective test of probable cause; it simply misapprehended
the facts which the summary judgment record
demonstrates were not within the officer’s knowledge at
the time the stop was made.
No. 09-1010 15
B.
We now turn to Officer Sharkey’s claim that he
enjoys qualified immunity on the claim that he
stopped the vehicle in violation of the Fourth Amendment.
In Wheeler v. Lawson, 539 F.3d 629 (7th Cir. 2008), we
summarized the basic principles governing the law of
qualified immunity:
The doctrine of qualified immunity shields from
liability public officials who perform discretionary
duties, Belcher v. Norton, 497 F.3d 742, 749 (7th
Cir. 2007), and it thus protects police officers “who
act in ways they reasonably believe to be lawful.”
Anderson v. Creighton, 483 U.S. 635, 638-39 (1987).
The defense provides “ample room for mistaken
judgm ents” and protects all but the
“plainly incompetent [or] those who knowingly
violate the law.” Hunter v. Bryant, 502 U.S. 224,
[229] (1991) (quoting Malley v. Briggs, 475 U.S.
335, 343 (1986)); Clash v. Beatty, 77 F.3d 1045,
1048 (7th Cir. 1996). Qualified immunity protects
those officers who make a reasonable error in
determining whether there is probable cause to
arrest an individual. Anderson, 483 U.S. at 643;
Belcher v. Norton, 497 F.3d 742, 749 (7th Cir. 2007).
Wheeler, 539 F.3d at 639 (parallel citations omitted).
Our discussion up to this point should make
abundantly clear that Officer Sharkey is not entitled to
qualified immunity with respect to the stop. We
summarized the governing principles on qualified
16 No. 09-1010
immunity in the context of probable cause in Williams
v. Jaglowski, 269 F.3d 778 (7th Cir. 2001):
Whether police officers had probable cause to
arrest a suspect and whether they are entitled
to qualified immunity for the arrest are closely
related questions, although qualified immunity
provides the officers with an “additional layer
of protection against civil liability” if a reviewing
court finds that they did not have probable
cause. Hughes v. Meyer, 880 F.2d 967, 970 (7th
Cir. 1989). In an unlawful arrest case in which
the defendants raise qualified immunity as
a defense, this court will “determine if the officer
actually had probable cause or, if there was no
probable cause, whether a reasonable officer could
have mistakenly believed that probable cause
existed.” Humphrey v. Staszak, 148 F.3d 719, 725
(7th Cir. 1998). If the officers can establish that
they had “arguable probable cause” to arrest the
plaintiff, then the officers are entitled to qualified
immunity, even if a court later determines
that they did not actually have probable cause. Id.
Accordingly, we will affirm the district
court’s grant of summary judgment if we find that
“a reasonable p olice officer in the
same circumstances and with the same
knowledge . . . as the officer in question could
have reason ab ly believed that probab le
cause existed in light of well-established law.” Id.
Williams, 269 F.3d at 781 (emphasis in original).
No. 09-1010 17
The record before us contains no evidence that Officer
Sharkey had any factual basis for stopping the plaintiffs
at gun point. He admits that the reasons that he initially
gave for stopping the car—absence of a front license plate
and tinted windows—were not known to him at the time
that he effected the stop. The record shows, moreover, that
the reason that he later gave for the stop—the absence of
tail and brake lights—was not true. As the state court
determined during the earlier criminal proceeding against
the plaintiffs, there is simply no basis in the record upon
which a determination of probable cause can be sustained.
Certainly, any reasonable police officer, acting at the time
Officer Sharkey acted, would have known this elementary
principle of the law of arrest.
C.
Mr. Sawyer asks us to review his claim that he was
subjected to an unreasonable search when—in a parking lot
adjacent to a public street—Officer Sharkey pulled down
Mr. Sawyer’s pants, pulled his underwear away from his
body and directed him to “bend over.”
This claim was litigated in a perfunctory manner before
the district court. Although the defendants moved for
summary judgment on all claims, their memorandum in
support of summary judgment made no mention
whatsoever of Mr. Sawyer’s claim that he had been
searched in an unreasonable manner under the Fourth
Amendment. The plaintiffs’ responsive summary judgment
filings also make no specific mention of this claim, other
18 No. 09-1010
than to repeat their factual allegations regarding the
manner of the search.
Under these circumstances, the absence of any statement
by the defendants as to the facts and law that entitled
them to summary judgment on this claim made the
grant of summary judgment inappropriate. In Wheeler,
we had occasion to summarize the principles that govern
the litigation of summary judgment motions before the
district court:
The moving party bears the initial burden
of demonstrating that these requirements have
been met; it may discharge this responsibility
by showing “that there is an absence of evidence to
support the non-moving party’s case.” Celotex
[Corp. v. Catrett], 477 U.S. [317,] 323 [(1986)]. To
overcome a motion for summary judgment, the
non-moving party must come forward with
specific facts demonstrating that there is a genuine
issue for trial. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). The existence
of a mere scintilla of evidence, however, is
insufficient to fulfill this requirement. Anderson
[v. Liberty Lobby], 477 U.S. [242,] 251-52 [(1986)].
The nonmoving party must show that there is
evidence upon which a jury reasonably
could find for the plaintiff. Id.
539 F.3d at 634 (parallel citations omitted).
The first of these principles was not fulfilled in this case.
The defendants, the moving party on the summary
judgment motion, never fulfilled the obligation of setting
No. 09-1010 19
forth the basic facts and law which, in their view,
warranted summary judgment on this claim. The burden
of defeating summary judgment did not shift to the
plaintiffs on this issue simply because, without citation to
relevant facts or authority pertaining to the strip search,
the defendants sought summary judgment on all claims
against all parties.
Although the district court addressed this claim, it did
so in summary fashion and never addressed the gravamen
of Mr. Sawyer’s complaint that it was the manner of
this search that violated the Fourth Amendment. We
believe that this claim must remain open on remand. If
Officer Sharkey files a renewed motion for summary
judgment with respect to this claim and fulfills his
threshold responsibility of setting forth the facts and
law that he believes warrant summary judgment in his
favor, Mr. Sawyer must then shoulder the responsibility
of demonstrating that there is a genuine issue of triable
fact.
D.
In its order granting summary judgment, the district
court determined that all of the plaintiffs’ pendent state
law claims had been waived. The district court was correct.
The summary judgment record demonstrates that, in
contrast to the strip-search claim that we discussed earlier,
the defendants met their obligations with respect to these
state claims by directly addressing them, with citation to
relevant authority and pertinent facts. By contrast, the
plaintiffs’ response on these claims was cursory at best
and included not a single citation to any relevant state
20 No. 09-1010
authority. They now ask us to overturn the district
court’s waiver determination, but do so only in the most
conclusory manner. Their argument contains no specific
reference to the legal requirements necessary to establish
any of the state law claims. Indeed, the state tort claims
are merely bundled together with the federal constitutional
claims, and all of them are addressed in a single
paragraph. See Reply Br. 8 (“Because there was no probable
cause, then everything else was unconstitutional.”). Given
this treatment of the state claims, both on appeal and in the
district court, there is no basis for our reversal of the
district court’s determination.
For the same reason, we cannot address, much less
overturn, the district court’s determination with respect to
the remainder of the plaintiffs’ federal constitutional
claims alleging excessive force, an illegal search of
Mr. Carmichael and the false arrest or unlawful seizure
of both men. On these federal claims, the plaintiffs assert,
in conclusory fashion, only that “because there was no
probable cause, the lynch pin [sic] for defendants’
arguments fails, the conduct of the defendants must be
seen in a different light, and the district court erred in
[granting summary judgment on] these claims.”
Appellants’ Br. 11. The plaintiffs, however, have not
made any independent, substantive legal arguments
about the legality of the officers’ conduct subsequent to the
initial stop and search. We agree that this amounts to a
waiver of these claims.
No. 09-1010 21
Conclusion
For the foregoing reasons, we must reverse the district
court’s judgment with respect to the initial stop of
Mr. Carmichael and Mr. Sawyer. We also must reverse its
judgment with respect to Mr. Sawyer’s claim that he was
searched in a manner violative of his rights under
the Fourth Amendment. In all other respects, the judgment
of the district court is affirmed. Mr. Carmichael and
Mr. Sawyer may recover the costs of this appeal.
A FFIRMED in part;
R EVERSED and R EMANDED in part
5-21-10