Eric Tapley v. Andrew Chambers , 840 F.3d 370 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-3013
ERIC TAPLEY,
Plaintiff-Appellant,
v.
ANDREW CHAMBERS, OFFICER, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Central District of Illinois
No. 15-cv-1051 — James E. Shadid, Chief Judge.
____________________
ARGUED SEPTEMBER 21, 2016 — DECIDED OCTOBER 19, 2016
____________________
Before FLAUM, KANNE, and WILLIAMS, Circuit Judges.
KANNE, Circuit Judge. Plaintiff-appellant Eric Tapley, along
with William Hosea and Clifford Pugh, request that we re-
view the district court’s decisions in two different cases, one
from 2012 (numbered 12-cv-1339) and the other from 2015
(numbered 15-cv-1051). Yet they failed to provide the record
from the 2012 case on appeal. For that reason, we dismiss the
appeal of that case. We address the merits of the 2015 case
only—and we affirm.
2 No. 15-3013
I. BACKGROUND
The record before us leaves much to the imagination. Alt-
hough Tapley asks us to review two cases, we have the record
for only one of them. To outline the history of these two cases,
we rely on the procedural facts provided in the parties’ briefs.
We assume the truth of these facts for that limited purpose.
But that’s as far as we’ll go.
Without the required record, we are unable to address the
material facts of the 2012 case. We do have the record from the
2015 case, and thus will discuss the facts necessary to decide
the merits of that appeal.
A. Procedural History
This all began with the 2012 case. There, plaintiffs Tapley,
Hosea, and Pugh sued the City of Bloomington and Officers
Andrew Chambers, Jeff Engle, Michael Gray, John Heinlein,
Sara Mayer, Scott Sikora, James Smith, and Brice Stanfield.
The plaintiffs brought Fourth Amendment, equal-protection,
and Monell claims under 42 U.S.C. § 1983. In addition, Tapley
brought a malicious-prosecution claim under Illinois law. Ta-
pley’s claims arose from several incidents occurring between
2011 and 2012. Hosea’s and Pugh’s claims involved a single
incident occurring on May 24, 2011. The incidents that gave
rise to Tapley’s claims are unrelated to the incident that
brought about Hosea’s and Pugh’s claims.
The defendants moved for summary judgment on all of
these claims. The district court granted that motion in part,
dismissing every claim except for Tapley’s illegal-seizure
claims arising from two traffic stops: one occurring in May
2011 and the other on September 15, 2011. Tapley voluntarily
No. 15-3013 3
dismissed those two claims, causing the district court to ter-
minate the case under Federal Rule of Civil Procedure
41(a)(1). The plaintiffs then appealed to this court.
Because Tapley voluntarily dismissed his surviving claims
without prejudice, we questioned whether we had appellate
jurisdiction. Indeed, a dismissal without prejudice typically
does not result in a final and appealable order because the
plaintiff is free to refile his claim. Larkin v. Galloway, 266 F.3d
718, 721 (7th Cir. 2001). We invited the plaintiffs to brief the
jurisdictional issue. They instead dismissed their appeal on
December 9, 2014.
Tapley then filed the 2015 case against Officers Chambers,
Heinlein, Sikora, Stanfield, and Mayer. There, Tapley reas-
serted his illegal-seizure claim arising from the September 15,
2011 incident—one of the claims that he voluntarily dismissed
in the 2012 case. He did not refile his other voluntarily dis-
missed claim from the 2012 case.1
Once again, the defendants moved for summary judg-
ment. This time around, the district court granted their mo-
tion and dismissed Tapley’s claim. Tapley timely appealed
that judgment.
B. Factual Background for the 2015 Case
The events giving rise to Tapley’s claim in the 2015 case
occurred on September 15, 2011. The Bloomington Police De-
partment’s Street Crimes Unit was surveilling for loud-music
1 On summary judgment, the district court dismissed Tapley’s claims
against Officer Mayer, whom Tapley conceded was not involved in the
September 15, 2011 incident. Nothing in Tapley’s briefs or oral argument
suggests that Tapley seeks to appeal this ruling. None of the other parties
or claims from the 2012 case was involved in the 2015 case.
4 No. 15-3013
violations near the intersection of Clinton and Locust streets.
Officer Sikora was parked to the south of that intersection
when he observed Tapley driving northbound in a red GMC
truck. Sikora radioed his fellow officers to inform them that
Tapley was playing loud music and to inquire whether any-
one wanted to initiate a stop. Officer Stanfield replied that he
would try to make the stop. At that time, Stanfield was parked
at the Clinton-Locust intersection, across the street from a
Price Rite store.
Tapley turned into the Price Rite parking lot, and Stanfield
followed him. Tapley went into the store for a brief time be-
fore returning to his truck. Stanfield testified that he heard Ta-
pley’s music emanating from the truck as Tapley was prepar-
ing to drive away. The parties agree that Tapley’s music was
loud, but dispute whether it was so loud that Stanfield could
hear it from over 75 feet away.2
Tapley left the parking lot and turned northbound onto
Clinton. Stanfield testified that he had difficulty following Ta-
pley because Tapley was driving “at a very high rate of
speed.” (R. 16-5 at 43–44.) Moreover, Stanfield could hear Ta-
pley’s engine rev as Tapley drove away. Stanfield acknowl-
edged that he did not know Tapley’s exact speed, but claimed
that it was well over Clinton’s 30-mile-per-hour limit—some-
where in the 40- to 50-mile-per-hour range. Stanfield testified
that he had to drive about 40 miles per hour to catch Tapley.
2 Both Illinois law and a Bloomington ordinance prohibit playing music
that is audible outside of a vehicle from 75 feet or more while the vehicle
is operating on a highway. 625 ILCS 5/12-611; City of Bloomington, Il.
Code ch. 29, art. XI, § 83(b).
No. 15-3013 5
Stanfield caught up to Tapley at the intersection of Main
Street and Empire. When Tapley saw Stanfield’s unmarked
cruiser behind him, he turned his music down. Stanfield then
stopped Tapley, explaining to him that the stop was for loud
music. The two also discussed Tapley’s excessive speed.
Soon after, Officers Sikora, Chambers, and Heinlein ar-
rived. Chambers told Tapley to get out of the truck. The par-
ties disagree about what happened next.
Tapley claims that he responded to Chambers by saying,
“Well, yes, I can get out of my truck, but why am I getting out
of my truck?” (R. 16-1 at 16.) When Chambers explained that
the officers had a K9 unit and that they wanted to do a free-
air sniff around the truck, Tapley replied, “I understand that,
but why are you doing a free air search?” (Id.) To that, Cham-
bers replied, “This is what we do,” and told Sikora to “[g]et
him.” (Id.) Sikora opened the passenger-side door and placed
a Taser on Tapley’s temple. Tapley then jumped out of the car
with his hands up.
The officers’ version of the story is a little bit different. Ac-
cording to them, when Chambers asked Tapley to exit the ve-
hicle, Tapley responded, “[F]uck that.”(R. 16-2 at 28); (R. 16-5
at 48). And when Chambers repeated his request, Tapley “just
sat there,” talking on his cell phone. (R. 16-2 at 28.) Chambers
then opened the driver-side door and grabbed Tapley’s arm,
which Tapley pulled away.3 Only then did Sikora tell Tapley
that, “if [Tapley] didn’t get out, he’d get tased.” (R. 16-4 at 19.)
The officers deny ever pointing a Taser at Tapley.
3 Neither Sikora nor Heinlein saw Tapley pull his arm away.
6 No. 15-3013
The officers arrested Tapley for obstruction of justice and
resisting arrest. Stanfield performed a search incident to ar-
rest on Tapley while the other officers searched the truck.4 The
government tried Tapley for obstruction, and a jury acquitted
him.
II. ANALYSIS
We first explain why we decline to review the merits of
the 2012 case. We then turn to the merits of the 2015 case.
A. Tapley’s, Hosea’s, and Pugh’s Appeal of the 2012 Case
Plaintiffs Tapley, Hosea, and Pugh5 seek to appeal the dis-
trict court’s 2012 judgment dismissing Tapley’s malicious-
prosecution claim and Hosea’s and Pugh’s Fourth Amend-
ment claim on summary judgment. Plaintiffs did not directly
appeal the 2012 case; instead, they seek to bootstrap that case
onto Tapley’s appeal of the 2015 case, claiming that Tapley’s
appeal was sufficient to appeal both cases. The defendants
disagree and contest our jurisdiction to review the 2012 case.
We need not decide whether Tapley’s appeal of the 2015 case
also gives us jurisdiction over the 2012 case. We instead dis-
miss the appeal of the 2012 case for the simple reason that we
have no record to review it.
The Federal Rules of Appellate Procedure require an ap-
pellant who is challenging a district court’s finding or conclu-
sion as unsupported by the evidence to “include in the record
4 In the 2012 case, Tapley brought an illegal-search claim, which the dis-
trict court dismissed on summary judgment. Tapley is no longer pursuing
that claim and concedes that it is not at issue on appeal.
5 Although Hosea and Pugh are not named parties to this appeal, we refer
to Tapley, Hosea, and Pugh as “plaintiffs” for purposes of this discussion.
No. 15-3013 7
a transcript of all evidence relevant to that finding or conclu-
sion.” Fed. R. App. P. 10(b)(2). It is apparent from the record—
or, more aptly, the lack thereof—that plaintiffs have not satis-
fied this requirement. Our review of the appellate docket con-
firms that we do not have the 2012 record. Plaintiffs conceded
as much in both their briefing and at oral argument. Even so,
they ask us to review the district court’s dismissal of their
claims without the 2012 record. They do not explain how we
can do that without access to the evidence contained in that
record.
True enough, plaintiffs did include some documents from
the 2012 case in the appendix, including the second amended
complaint and the district court’s order on summary judg-
ment.6 Even if we were to consider these documents, they
would not help us. Although the district court’s order sum-
marizes the type of evidence presented, we cannot evaluate
whether the court properly granted summary judgment with-
out copies of the exhibits supporting the parties’ summary-
judgment briefing and the transcripts from oral argument. See
Stookey v. Teller Training Distribs., Inc., 9 F.3d 631, 635 (7th Cir.
1993).
Under these circumstances, we have two options. First, we
can order plaintiffs to provide the 2012 record. Fed. R. App.
P. 10(e); LaFollette v. Savage, 63 F.3d 540, 545 (7th Cir. 1995). Or
second, we can dismiss the appeal. Fed. R. App. P. 3(a)(2);
6 The issue of whether those documents’ inclusion in the appendix is ap-
propriate given their absence from the 2015 record is another story. See
United States v. Raymond, 228 F.3d 804, 809 n.5 (7th Cir. 2000) (granting
motion to strike from the appendix documents absent from the record be-
fore the district court), overruled on other grounds by Hill v. Tangherlini, 724
F.3d 965, 967 n.1 (7th Cir. 2013).
8 No. 15-3013
Stookey, 9 F.3d at 635 (7th Cir. 1993). We choose the latter op-
tion.
Dismissal is appropriate when a deficient record pre-
cludes meaningful appellate review. LaFollette, 63 F.3d at 544;
Stookey, 9 F.3d at 635–36. Dismissal is especially appropriate
when, as here, plaintiffs have had ample opportunity to cor-
rect this deficiency but have failed to do so. LaFollette, 63 F.3d
at 545; RK Co. v. See, 622 F.3d 846, 853 (7th Cir. 2010). Indeed,
plaintiffs have known of this problem at least since receiving
defendants’ response brief, which requests that we dismiss
the appeal because of the incomplete record. See RK Co., 522
F.3d at 853.
Plaintiffs’ reply acknowledges that we do not have the
2012 record. Plaintiffs claim, however, that they “orally re-
quested” the district court to send that record to us. (Appel-
lant’s Reply Br. at 8.) During oral argument, plaintiffs’ counsel
clarified that he actually made this request to the district court
clerk via telephone.
Even accepting that plaintiffs made that call, nothing in
the record before us suggests that plaintiffs filed a motion
with the district court to correct or modify the record under
Appellate Rule 10(e), as our Circuit Rules require. See Circuit
Rule 10(b). Had plaintiffs so moved, perhaps the district court
would have forwarded the 2012 record to us. Instead, 22 days
after plaintiffs filed their reply brief acknowledging the rec-
ord deficiency, the district court forwarded the long record
from the 2015 case only. Since then, plaintiffs have taken no
steps to provide us with the 2012 record.
Plaintiffs must convince us that the district court reached
the wrong conclusion. They cannot do so without supporting
No. 15-3013 9
evidence. Because we do not have the 2012 record, we dismiss
the appeal of the 2012 case.
B. Tapley’s Appeal of the 2015 Case
We now turn to the merits of the 2015 case. As noted, Ta-
pley brought a § 1983 claim against Officers Chambers,
Heinlein, Sikora, and Stanfield, alleging that they violated his
Fourth Amendment rights when they seized him on Septem-
ber 15, 2011. The district court dismissed Tapley’s claim on
summary judgment.
We review this decision de novo, drawing our own legal
and factual conclusions from the record. Beischel v. Stone Bank
Sch. Dist., 362 F.3d 430, 434 (7th Cir. 2004). In our review, we
construe all facts and reasonable inferences in Tapley’s favor.
Gordon v. FedEx Freight, Inc., 674 F.3d 769, 772 (7th Cir. 2012).
We grant summary judgment only when “the admissible ev-
idence shows that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a
matter of law.” Hanover Ins. Co. v. N. Bldg. Co., 751 F.3d 788,
791 (7th Cir. 2014).
As the summary-judgment movants, the officers must es-
tablish that there are no genuine issues of fact. Ponsetti v. GE
Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010). They can dis-
charge this burden by (1) negating an essential element of Ta-
pley’s claim with affirmative evidence or (2) demonstrating
that Tapley’s claim lacks supporting evidence. Hummel v. St.
Joseph Cnty. Bd. of Comm'rs, 817 F.3d 1010, 1016 (7th Cir. 2016).
The burden then shifts to Tapley to offer specific evidence
showing a genuine issue for trial. Bank of Commerce v. Hoffman,
829 F.3d 542, 546 (7th Cir. 2016).
10 No. 15-3013
Our analysis begins with the Fourth Amendment, which
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. This protection ex-
tends to everyday traffic stops, which are “seizures” under
the Fourth Amendment. Whren v. United States, 517 U.S. 806,
809–10 (1996). As such, they must be reasonable. And they are
reasonable so long as “the police have probable cause to be-
lieve that a traffic violation has occurred.” Id. at 810.
To succeed on his § 1983 claim, Tapley must show that his
seizure was unreasonable—that is, that the officers had no
probable cause to stop and arrest him. Bielanski v. Cnty. of
Kane, 550 F.3d 632, 637 (7th Cir. 2008); Kelley v. Myler, 149 F.3d
641, 646 (7th Cir. 1998). Based on the undisputed facts in the
record, we conclude that Tapley cannot make this showing.
We begin with the initial stop, which Stanfield admitted
was for loud music. It is debatable whether there was proba-
ble cause to stop Tapley for that reason. Even so, the facts in
the record show that there was probable cause to stop Tapley
for speeding.
“When a police officer reasonably believes that a driver
has committed even a minor traffic offense, probable cause
supports the stop.” United States v. Garcia-Garcia, 633 F.3d 608,
613 (7th Cir. 2011). To determine whether this belief is reason-
able, we consider “the facts and circumstances within the of-
ficer’s knowledge,” and determine whether they “are suffi-
cient to warrant a prudent person in believing the suspect has
committed or is committing an offense.” United States v. Saw-
yer, 224 F.3d 675, 678–79 (7th Cir. 2000). This determination
“involves examining the totality of the circumstances in a
No. 15-3013 11
common sense manner.” United States v. Schaafsma, 318 F.3d
718, 722 (7th Cir. 2003).
In light of the facts known to Stanfield at the time of the
stop, and under the totality of the circumstances, it was rea-
sonable for Stanfield to believe that Tapley was speeding. At
his deposition, Stanfield testified that he saw Tapley driving
northbound on Clinton “at a very high rate of speed.” (R. 16-
5 at 43–44.) He further testified that he could hear Tapley’s
engine rev as Tapley drove away. Although Stanfield admit-
ted that he did not know Tapley’s exact speed, he estimated it
to be in the 40- to 50-mile-per-hour range. In any event, Stan-
field noted that he had difficulty catching Tapley, and had to
drive about 10 miles per hour over the limit to do so. When
Stanfield finally stopped Tapley, the two discussed Tapley’s
excessive speed.
Through this evidence, the officers carried their summary-
judgment burden to produce evidence showing that Tapley
was speeding. This evidence is undisputed. Tapley now tries
to concoct a dispute by pointing out that “[Stanfield] admitted
in his deposition that he did not know how fast Tapley was
going.” (R. 18 at 10–11.) But cherry picking statements from
Stanfield’s deposition testimony and saying what we already
know doesn’t create a dispute. The context of Stanfield’s tes-
timony clearly shows that he believed that Tapley was speed-
ing, even though he didn’t know Tapley’s exact speed. To sur-
vive summary judgment, Tapley should have denied that he
was speeding through deposition testimony, an affidavit, or
some other means. Tapley never denied this. And his failure
to make this denial constitutes a failure to deny the existence
of probable cause. The evidence in the record thus shows that
there was probable cause to stop Tapley for speeding.
12 No. 15-3013
And because there was probable cause to stop Tapley for
this reason, Tapley’s entire illegal-seizure claim fails. This is
true, even though the officers arguably had no probable cause
to stop Tapley for loud music or arrest him for obstruction
and resisting arrest. Indeed, we do not consider an officer’s
subjective intentions when determining whether he had prob-
able cause to make a stop. Whren, 517 U.S. at 813. As long as
the officer had probable cause to believe that the driver com-
mitted a traffic violation, the stop is constitutionally permis-
sible, even if the officer’s real reasons for the stop lack proba-
ble cause. Valance v. Wisel, 110 F.3d 1269, 1275 (7th Cir. 1997);
see Huff v. Reichert, 744 F.3d 999, 1004 (7th Cir. 2014) (“The
Fourth Amendment permits pretextual traffic stops as long as
they are based on an observed violation of a traffic law.”).
This rule equally applies to arrests: If there is probable
cause to believe that a person has committed a crime, it is con-
stitutionally irrelevant whether the officer arrested the person
on charges for which there was no probable cause. See Holmes
v. Vill. of Hoffman Estate, 511 F.3d 673, 682 (7th Cir. 2007)
(“[P]robable cause to believe that a person has committed any
crime will preclude a false arrest claim, even if the person was
arrested on additional or different charges for which there
was no probable cause… .”); Devenpeck v. Alford, 543 U.S. 146,
153 (2004) (“[An officer’s] subjective reason for making the ar-
rest need not be the criminal offense as to which the known
facts provide probable cause.”). Because there was probable
cause to believe that Tapley was speeding, the officers did not
violate Tapley’s Fourth Amendment rights when they
No. 15-3013 13
stopped him for loud music and arrested him for obstruction
and resisting arrest.7
Although arresting someone for speeding might be out-
side the norm, it is constitutionally acceptable. As long as
there is probable cause to stop someone for a crime—even a
minor one like a traffic offense—the Fourth Amendment per-
mits an arrest. Atwater v. City of Lago Vista, 532 U.S. 318, 354
(2001); United States v. Childs, 277 F.3d 947, 953 (7th Cir. 2002)
(en banc).
Speeding is a crime in Illinois. 625 ILCS 5/11-601. The of-
ficers had probable cause to stop and arrest Tapley for this
crime. For that reason, Tapley’s illegal-seizure claim fails. Ac-
cordingly, the district court properly dismissed that claim on
summary judgment.
III. CONCLUSION
For the reasons above, we DISMISS Tapley’s appeal of the
2012 case (12-cv-1339), and AFFIRM the district court’s grant
of summary judgment in the 2015 case (15-cv-1051).
7 Tapley notes that the district court denied summary judgment on his
claim in the 2012 case. He argues that this denial necessarily creates a gen-
uine issue for trial. Not so. The district court denied summary judgment
in the 2012 case because there were disputes about probable cause for loud
music, obstruction, and resisting arrest. But in the 2015 case, the officers
argued for the first time that there was probable cause for speeding. The
district court granted summary judgment for that reason. We take no issue
with the divergent rulings in the two cases.