Marcus Torry v. City of Chicago
Opinion
One afternoon in 2014, three Chicago police officers stopped three black men in a grey sedan to investigate a nearby shooting that had happened a few hours earlier. When the passengers sued the officers a year later, none of the officers remembered the Terry stop. Lacking recall, they relied on other evidence to show that reasonable suspicion had existed for it. Cell phone footage taken by one of the plaintiffs during the encounter depicted Sergeant Robert King, the officer who initiated the stop, citing the plaintiffs' suspicious behavior in the area of the shooting as the reason that he had pulled them over. And a police report showed that dispatches to officers investigating the shooting, including King, identified the suspects as three black men in a grey car. The descriptions of the car's model varied, and none was an exact match for the car that the plaintiffs were driving. But reasonable suspicion can exist without an exact match, and the district court held that these descriptions were close enough to justify the Terry stop. In any event, the court said, the officers were entitled to qualified immunity because the stop did not violate clearly established law.
Before us, the plaintiffs have repeatedly suggested that the defendants' failure of memory is a concession of liability. In other words, they maintain that if a police officer doesn't remember a stop now, reasonable suspicion could not have justified it at the time. But the Fourth Amendment does not govern how an officer proves that he had reasonable suspicion for a Terry stop; he can rely on evidence other than his memory to establish what he knew when the stop occurred. The police report demonstrates that King knew that the suspects in the shooting had been identified as three black men driving a grey car, and the cell-phone video shows him giving the shooting as the reason for the stop. We agree with the district court that the officers are entitled to qualified immunity.
I.
On the morning of September 23, 2014, a drive-by shooting occurred about half a mile from Manley High School, which is located on West Polk Street in Chicago. Sergeant Robert King was on duty that day as a "school sergeant"-an officer who responds to and investigates violence near schools within his beat. A police report detailing the chronology of events related to the shooting shows that King responded to the shooting and that three descriptions of suspects were received while he was assisting. 1 One identified the suspects' vehicle *582 as a newer-model grey Nissan with three black male occupants. The second was almost identical to the first but specified that the Nissan was an SUV. The third identified the shooter as a medium-complected black male wearing a white t-shirt and driving a grey Trailblazer (a Chevrolet SUV).
Shortly past noon on that same day, Marcus Torry and William Roberts picked up Latrell Goss, Torry's brother, in a grey Ford Fusion sedan. Goss's car had broken down on West Polk Street; Torry and Roberts met him at his car and then drove him west on West Polk to an auto parts store. They passed Manley High School as they drove to the store, and they passed it again when they returned the same way. As they went by the school for the second time, they were pulled over by three police officers-King, Jacek Leja, and Justin Raether. Torry captured video of the ensuing encounter on his cell phone camera. Like the district court, we draw our description of the encounter primarily from the video, supplementing it with other undisputed facts and drawing all inferences in the plaintiffs' favor. 2
After Torry pulled over, King approached his window and asked for his license and registration. Torry asked why he had been stopped, and King replied that "this was about your third pass by this school." Torry protested that he had not driven by the school three times and handed over his license and registration. King told him not to argue; Torry demanded King's badge number.
King told Torry to step out of the car and reached for the handle of the driver's door, which prompted Torry to ask if he was under arrest. King didn't directly answer the question but said, "Sir, get out of the car please. Sir, this is a Terry stop, I have the right to search the car, get out of the car." Torry, protesting that he had done nothing wrong, failed to comply with multiple commands that he exit the vehicle. King told Torry, "If you don't get out of the car, I will remove you from the car," and Torry replied, "I'm gonna remove myself but I just don't want to get-y'all get me, shoot me, or kill me for something I didn't do wrong." King responded, "Yes, sir, absolutely; hands up, don't shoot, there you go." Neither King nor the other officers had a gun out, but Torry feared police brutality.
Torry testified that when he finally removed his seatbelt, King "just grab[bed] me out of the car." King ordered Torry to "come on out, sir," as Torry repeatedly exclaimed, "Please don't shoot." King walked Torry to a squad car, saying, "Let's go back to my car, sir, right over here," and placed him inside. Goss testified that an officer grabbed him out of the car too, but neither Goss nor Roberts were placed in a squad car. After the plaintiffs had been repeatedly ordered to leave the car but before they had complied, one of the officers shook a can of mace, although he never used it.
After placing Torry in the back of his squad car, King sat in the front for a few minutes while he ran Torry's name through a warrant check. Torry demanded to know why he had been pulled over, and King explained that Torry had "cruised this street here around the school," which was an area of "safe passage" and "the *583 immediate location of a shooting this morning." (An area of "safe passage" is a designated area where extra precautions are taken to prevent violence that might affect students on their way to and from school.) King then returned to Torry's car, where the officers talked to Goss and Roberts, who testified that the other officers patted them down and searched Goss's pockets. Still in the squad car, Torry yelled obscenities and protests while continuing to film with his cell phone camera. At one point, Goss approached the car and told him to be quiet, to which Torry responded, "Leave me alone!"
Roughly ten minutes into the stop and eight minutes after putting Torry in the squad car, King retrieved Torry and walked him back to his own car. Torry asked if he was under arrest, to which King answered, "If you were under arrest, you'd be in handcuffs." Torry got in his car, and King returned his license and registration. Shortly after, one of the officers said to Goss that "you don't want anything to do with him," and-in response to an unintelligible reply-said, "Yeah, c'mon, jump in the car ... yeah we'll give you a ride home." Goss testified that the officers had told him to get in their car to return to his disabled car.
Free to leave, Torry and Roberts pulled back onto West Polk Street. Torry continued his video recording, narrating that the officers were driving behind his car. Goss, riding in the back seat of Leja and Raether's car, testified that those officers debated pulling Torry over again "to mess with him." But the officers dropped Goss off at his car and nothing else happened.
One year later, Torry, Goss, and Roberts sued the three officers under
Based on that report and his review of Torry's video, King testified by affidavit that the dispatches would have alerted him that the suspects were three black men driving a grey car, and, as the video reflected, that he told Torry-who was driving a grey car with three black male occupants-that *584 he had stopped him because of the shooting. The plaintiffs and the defendants filed cross-motions for summary judgment, and the district court granted summary judgment to the defendants.
II.
The primary theme of the plaintiffs' argument is that proving reasonable suspicion for the stop requires the officers to have at least some independent memory of what they knew at the time. The plaintiffs particularly object, therefore, to the district court's reliance on indirect evidence-the police report and King's affidavit-to conclude that the officers had reasonable suspicion to pull them over. They offer four reasons why the district court was wrong to consider this evidence: first, the officers submitted it in response to the plaintiffs' motion for summary judgment rather than in support of their own motion; second, King's affidavit was a sham because it contradicted his prior testimony; third, the police report was hearsay; and fourth, King's lack of memory precludes him from relying on the collective knowledge doctrine. None of these arguments succeeds.
To begin with, it doesn't matter that the officers submitted the report and affidavit in their response to the plaintiffs' motion for summary judgment rather than in support of their own motion. In adjudicating a motion for summary judgment, "[a] court need consider only the cited materials, but it may consider other materials in the record." FED . R. CIV . P. 56(c)(3). The court was therefore free to consider evidence submitted in response to one motion when it decided the other. Indeed, it would have been odd for the court to ignore the report and affidavit, because they were obviously relevant to the defendants' cross-motion on the very same issues.
See
Las Vegas Sands, LLC v. Nehme
,
The plaintiffs' next argument-that the court should have excluded King's affidavit as a sham-fares no better. According to the plaintiffs, King made several admissions during discovery that effectively conceded his liability, and his affidavit contradicts these admissions because it explains why King had reasonable suspicion for the stop. Thus, they insist, the court was obliged to exclude the affidavit as a sham.
See
Bank of Illinois v. Allied Signal Safety Restraint Sys.
,
The plaintiffs' next argument-that the police report was inadmissible hearsay-is their most underdeveloped. They insist that the report is hearsay, but they never articulate why any of the statements within the report was offered as proof of the truth of the matter asserted.
See
FED . R. EVID . 801(c)(2) (" 'Hearsay' means a statement that ... a party offers in evidence to prove the truth of the matter asserted in the statement."). Their failure to develop this argument is enough to dispense with it.
See
Mathews v. REV Recreation Grp., Inc.
, No. 18-1982,
We will assume for the sake of argument that the entries reflecting King's response to the shooting were offered for their truth.
5
Even if they were, however, the plaintiffs don't counter the defendants' argument that the entire report is admissible under the business records exception.
See
FED . R. EVID . 803(6). That exception applies if five conditions are met: (1) "the record was made at or near the time by-or from information transmitted by-someone with knowledge"; (2) "the record was kept in the ordinary course of a regularly conducted activity of a business, organization, occupation, or calling"; (3) "making the record was a regular practice of that activity"; (4) "all these conditions are shown by the testimony of a custodian or another qualified witness"; and (5) "the opponent does not show that the source of the information or the method or circumstances of preparation indicate a lack of trustworthiness."
Id
. The only factor that the plaintiffs come close to discussing is the fourth: they seem to argue that King was not qualified to authenticate the report
*586
because he could not remember receiving the transmissions that it recorded. But to authenticate a business record, a qualified witness "need not be in control of or have individual knowledge of the particular [ ] records"; he "need only be familiar with the [ ] recordkeeping practices."
Thanongsinh v. Bd. of Educ.
,
The plaintiffs point out that while the police report shows that descriptions of the suspects were transmitted to investigators, it does not expressly note whether the investigators received them. The district court properly concluded, though, that we can impute that knowledge to King via the collective knowledge doctrine. "[W]hen officers are in communication with each other while working together at a scene, their knowledge may be mutually imputed even when there is no express testimony that the specific or detailed information creating the justification for a stop was conveyed."
United States v. Nafzger
,
Because the report establishes that King was aware of both the shooting and the suspect descriptions, the court appropriately treated those as undisputed facts when considering whether reasonable suspicion for the Terry stop existed.
III.
That brings us to the reasonableness of the stop. The plaintiffs argue that it violated the Fourth Amendment, given that the shooting had occurred several hours earlier and that Torry's car was a different model than the one identified in the department's transmissions to investigators. The defendants contend that the stop was lawful and that they are in any event entitled to qualified immunity.
Qualified immunity protects government officials from liability for civil damages as long as their actions do not violate "clearly established statutory or constitutional rights of which a reasonable person would have known."
Figgs v. Dawson
,
The "demanding standard" that the law be "clearly established" for liability to attach "protects 'all but the plainly incompetent or those who knowingly violate the law.' "
District of Columbia v. Wesby
, --- U.S. ----,
The general rule established by
Terry v. Ohio
is that officers may conduct a brief investigatory stop if they reasonably suspect that an individual has committed or is about to commit a crime.
The plaintiffs do not contend that this is the rare case in which the facts establish a blatant violation of
Terry
's rule even though there is no case on point.
See
Wesby
,
Neither
Gentry
nor
Packer
speaks to a situation like this one, where the plaintiffs partially matched the description of suspects involved in a drive-by shooting. When the officers in this case stopped the plaintiffs, they knew that three black men in a grey car were suspected of committing a nearby shooting earlier that day. The plaintiffs matched this description in number, race, and car color.
Cf.
United States v. Lenoir
,
We'll begin with the variation between Torry's car and the descriptions of the suspects' car. Under our precedent, an imperfect match between a suspect and a description does not necessarily make an officer's suspicion unreasonable.
See, e.g.
,
D.Z. v. Buell
,
As for the time and place discrepancies, past cases have not established that they're enough to defeat reasonable suspicion. In
United States v. Tilmon
, for example, we found a stop reasonable based on the "match of a unique automobile with a driver fitting the general description of the bank robber," even though the stop occurred two hours after and fifty miles away from the robbery.
Finally, the officers' suspicion was not based solely on the descriptions of the suspects. The plaintiffs had also passed by the same area multiple times, behavior that could suggest that they were casing it in preparation for further criminal activity related to the dispute underlying the shooting.
Cf.
Green
,
IV.
Finally, the plaintiffs argue that even if the stop was initially justified, it exceeded its appropriate bounds and turned into a de facto arrest. They argue that taking Torry's identification and placing him in the back of the squad car was more intrusive than was warranted for the Terry stop, and thus transformed the encounter into an arrest without probable cause.
The district court concluded both that the scope of the stop was lawful and that the officers were entitled to qualified immunity regardless. The plaintiffs challenge only one of those holdings: the lawfulness of the stop. Because they do not challenge the district court's alternative holding that the defendants are entitled to qualified immunity, they have forfeited this argument.
*589
See
United States v. Giovannetti
,
* * *
Because the defendants are entitled to qualified immunity, the judgment of the district court is AFFIRMED.
This report is from the Office of Emergency Management and Communications and is called a "Chicago Police Department Event Query Report." For simplicity's sake, we will refer to it as a "police report." The record also contains post-dated supplementary reports that expand on the information contained in the police report. The parties dispute the admissibility of these supplementary reports, but because they are not necessary to show that King knew about the shooting and suspect descriptions, we do not address them.
Neither side contests the admissibility of the video, which the plaintiffs and defendants introduced as a joint exhibit in the district court. The video runs the full length of the stop.
The plaintiffs voluntarily dismissed other claims that they had asserted against the officers.
This second entry lacks a timestamp and so may have been received later. But because identifying the car as an SUV weakens the officers' argument for reasonable suspicion and because we must take the facts in the light most favorable to the plaintiffs, we presume that this description had been received by the time of the stop.
See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.
,
It is doubtful, though, that even these statements are hearsay. The fact that King was participating in the investigation is implicit in the entries describing his response to the shot call, but that is not what the declarant was intentionally trying to convey. Assertions often reflect a declarant's underlying assumptions, but only the assertions themselves meet Rule 801 's definition of hearsay.
See
FED. R. EVID. 801(1) (" 'Statement' means a person's oral assertion, written assertion, or nonverbal conduct,
if the person intended it as an assertion
." (emphasis added));
see also
4 Mueller & Kirkpatrick ,
supra
, § 8:24.
United States v. Zenni
is the classic example.
See
It is true that any statements in the report made by those outside of the police force constitute "hearsay within hearsay" and would need to be themselves justified by a hearsay exception. The plaintiffs do not identify any such statements in the report, so they have forfeited any argument for their exclusion. For the sake of completeness, however, we note that the most obvious candidates are the witnesses' descriptions of the shooters. As we have already explained, they were not offered for their truth. Even if they had been, though, they would have been admissible as present sense impressions. See Fed . R. Evid . 803(1) (defining a present sense impression as "[a] statement describing or explaining an event or condition, made while or immediately after the declarant perceived it").
Reference
- Full Case Name
- Marcus D. TORRY, Latrell Q. Goss, and William I. Roberts, Plaintiffs-Appellants, v. CITY OF CHICAGO, Et Al., Defendants-Appellees.
- Cited By
- 55 cases
- Status
- Published