Steen, Floyd v. Myers, Robert

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1771
FLOYD STEEN, personal representative of
the estate of BRANDON S. HILBERT,
Plaintiff-Appellant,
v.
ROBERT MYERS, BRAD RIDENOUR, and
CITY OF PORTLAND, INDIANA,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 04 C 174—Theresa L. Springmann, Judge.
____________
ARGUED DECEMBER 8, 2006—DECIDED MAY 21, 2007
____________
No. 06-1772
RICHARD PHILEBAUM and TERESA PHILEBAUM,
as legal guardians of ROBYN A. PHILEBAUM,
and ROBYN A. PHILEBAUM individually,
Plaintiffs-Appellants,
v.
CITY OF PORTLAND, INDIANA, PORTLAND
POLICE DEPARTMENT, ROBERT MYERS,
and BRAD RIDENOUR,
Defendants-Appellees.
____________
2 Nos. 06-1771 & 06-1772
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 04 C 218—Theresa L. Springmann, Judge.
____________
ARGUED DECEMBER 8, 2006—DECIDED MAY 21, 2007
____________
Before BAUER, FLAUM, and KANNE, Circuit Judges.
KANNE, Circuit Judge. The plaintiffs in this combined
appeal represent the interests of a young man who was
killed and a young woman who was rendered disabled
in a motorcycle accident that occurred during a police
chase. They brought suit in the state courts of Indiana,
combining both federal and state law claims. The defen-
dants removed the cases to the federal court. The district
court entered summary judgment in favor of the defen-
dants on the federal claims and remanded the state law
claims to the state courts. The plaintiffs appeal. We affirm.
I. BACKGROUND
Because this appeal comes to us after a grant of sum-
mary judgment in favor of the defendants, we will recount
the facts in the light most favorable to the plaintiffs.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
In the early morning hours of July 18, 2003, Portland,
Indiana police officers Robert Myers and Brad Ridenour
were on duty. Myers observed Brandon Hilbert and an
unknown woman (now known to have been plaintiff
Robyn Philebaum) sitting on a parked motorcycle among
a crowd of other young people on Main Street in Portland.
Suspecting that Hilbert’s license was suspended, and
further suspecting that he did not possess a valid motor-
cycle endorsement, Myers proceeded past the motorcycle
and parked his patrol car while running a check on the
Nos. 06-1771 & 06-1772 3
status of Hilbert’s license. Either on his own or acting
pursuant to information from Ridenour (the details are
unclear), Myers drove a few blocks South and East to
find the motorcycle parked at a new location. He drove
past the parked motorcycle and the two youths at least
once, and perhaps twice or more. He parked out of sight
again and awaited confirmation about the status of
Hilbert’s license via computer. He had positioned himself,
he says, to be in a location to notice the motorcycle if
it returned to the original Main Street location. While
waiting, he received confirmation that Hilbert’s license
was suspended and that he had no motorcycle endorse-
ment.
We should note here the context in which these events
occurred—events which the appellants characterize as a
cat-and-mouse game. Hilbert and Myers had a prior
history. A few months before the night in question, Myers
and another officer had handcuffed Hilbert and held
him at gunpoint in the course of investigating an armed
assault. Although Hilbert’s physical description seems
to be a far stretch from the description of the assault
suspect, his pick-up truck was similar to a vehicle associ-
ated with that assault. Myers and the other officer eventu-
ally released Hilbert when it became apparent that he
was not the suspect wanted in connection with the assault.
Nevertheless, it appears from testimony of relatives
that this run-in with Myers had the effect of leaving
Hilbert in fear of Myers, and the appellants suggest that
the prior events provide important context for the events
of July 18.
Not seeing Hilbert and his passenger returning to Main
Street, Myers started to drive back to Hilbert’s last known
location. He saw Hilbert and Philebaum riding on the
motorcycle. Hilbert looked at him, and then turned East
on Water Street (Indiana Highway 26) and sped away.
Myers testifies that he turned on his lights and siren and
4 Nos. 06-1771 & 06-1772
attempted to complete a traffic stop, but Hilbert did not
pull over. Myers gave chase, and Ridenour joined him,
trailing some distance behind.
The chase would end tragically. Within minutes, the
chase had reached speeds between 100 and 130 miles per
hour. Approximately six minutes after Hilbert and
Philebaum had fled, the chase ended with the motorcycle
leaving the road. Hilbert died, and Philebaum received
extensive injuries. The chase was witnessed by ten people.
Four are parties to the current lawsuit: defendants Myers
and Ridenour, and plaintiffs Hilbert (through his estate)
and Philebaum (through her parents). Two additional
people were eyewitnesses to the chase: Barbara Ashcraft
lives near the city limits and saw the vehicles as they
were leaving town and Rhonda Bartle passed the chase
while driving westbound (into Portland) on Highway 26. In
addition, four people were “ear-witnesses” to the chase: the
Campbells and the Schweitermans live along Highway 26
between Portland and the crash site.
Myers’s report of the chase and his affidavit estimate
that the distance between his car and the motorcycle
ranged from one block behind the motorcycle at the
inception of the traffic stop to as much as one-quarter or
one-half a mile throughout the remainder of the chase.
Myers’s in-car video camera was not operating at the time
of the chase, and thus provides no useful evidence. It
appears that the video recorder was repaired the morning
before the chase, and Myers was unaware that it was
usable once again. Ashcraft and Bartle (the only non-party
eyewitnesses) estimate that the distance between the
vehicles to have been between one car length as the chase
left town, to three or four car lengths toward the end of
the chase. The witnesses who only heard the chase, but
did not see all three vehicles, estimated that the time
between the sound of the motorcycle passing and the
sound of the pursuing police car was about ten seconds.
Nos. 06-1771 & 06-1772 5
About four minutes into the chase, and about two
minutes before its eventual tragic end, Myers suggested
that the dispatch operators call across the state line to the
Mercer County (Ohio) sheriff and inform them that the
chase would be entering their jurisdiction. Myers received
a radio call from the Jay County (Indiana) sheriff ’s
department reminding him that he was approaching a
point where the highway makes a right-hand curve. He
testifies that he slowed, and observed the motorcycle
braking ahead of him before leaving the highway, having
failed to make the right-hand turn. The accident recon-
struction report calculated that Hilbert was traveling
seventy-four miles per hour when he left the highway in a
straight line, and that the tires left skid marks for over
forty-six feet before leaving the pavement.
Hilbert’s estate and Philebaum’s parents (as her legal
guardians) brought suit in Indiana state court against
Myers, Ridenour, the City of Portland, and the Portland
Police Department. Their complaints alleged federal
causes of action under 42 U.S.C. § 1983 for depriving the
plaintiffs of their constitutional rights under the Fourth
Amendment and Fourteenth Amendment and various
state law claims. The defendants removed the case to the
federal court and eventually moved for summary judg-
ment. The plaintiffs acknowledged the insufficiency of
the evidence to support any claim against Ridenour and
did not oppose summary judgment on the claims against
him. The plaintiffs also withdrew their claims against the
City of Portland and conceded that the Portland Police
Department is not a separate entity subject to suit. The
district court entered summary judgment in favor of the
defendants on the § 1983 claims and remanded the state
law claims to the state court. The plaintiffs appeal. Their
statement of issues for our consideration, as well as their
arguments, are confined to whether summary judgment
was appropriate with respect to defendant Myers. Al-
6 Nos. 06-1771 & 06-1772
though they do not say so explicitly, we take it from the
absence of any discussion of Ridenour or the City that
they have abandoned their federal claims against those
defendants. Luellen v. City of E. Chicago, 350 F.3d 604,
612 (7th Cir. 2003) (holding arguments not made in the
appellant’s brief are forfeited).
II. ANALYSIS
We review a decision to enter summary judgment de
novo. Barrows v. Wiley, 478 F.3d 776, 779 (7th Cir. 2007).
We view the facts and draw all inferences in the light
most favorable to the non-moving party—in this case the
plaintiffs. Liberty Lobby, 477 U.S. at 255. Summary
judgment is appropriate where the evidence in the rec-
ord shows no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. FED. R.
CIV. P. 56(c).
The Fourth Amendment provides that “The right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall
not be violated.” U.S. CONST. amend. IV. The Fourteenth
Amendment requires that the states not “deprive any
person of life, liberty, or property, without due process of
law.” U.S. CONST. amend. XIV. A person who, “under color
of [law] . . . subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured.” 42 U.S.C. § 1983.
The parties agree that our consideration of § 1983 claims
in the context of a police chase of a motorcycle is largely
controlled by the Supreme Court’s holding in County of
Sacramento v. Lewis, 523 U.S. 833 (1998).
Nos. 06-1771 & 06-1772 7
A. Fourth Amendment Claim
In the context of a police pursuit, a Fourth Amendment
seizure does not occur unless an officer intentionally and
forcibly halts the fleeing suspect. Id. at 844, (“[A] Fourth
Amendment seizure [occurs] only when there is a gov-
ernmental termination of freedom of movement through
means intentionally applied. . . . [N]o Fourth Amendment
seizure would take place where a pursuing police car
sought to stop the suspect only by the show of authority
represented by flashing lights and continuing pursuit,
but accidentally stopped the suspect by crashing into
him.”) (citing Brower v. County of Inyo, 489 U.S. 593,
596-97 (1989) (internal quotations omitted)). See also
Scott v. Harris, 550 U.S. ___ (2007) at *8.
It is unclear from the appellants’ briefs whether they
continue to press the argument that their Fourth Amend-
ment claim should have survived summary judgment. The
references they make to that amendment are fleeting
and insubstantial. Normally we would be inclined to
consider the argument forfeited. United States v.
Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991) (“We
repeatedly have made clear that perfunctory and undevel-
oped arguments, and arguments that are unsupported by
pertinent authority, are waived (even where those argu-
ments raise constitutional issues).”). However, the ques-
tion of whether Myers rammed the motorcycle is pertinent
to the appellants’ arguments under the Fourteenth
Amendment also, so we will review the district court’s
consideration of the question despite the sparse argu-
ment presented to us on appeal.
The district court concluded that the allegation that
Myers had struck the motorcycle was “unsupported specu-
lation.” Philebaum v. Myers, No. 1:04-CV-00218, 2006 WL
335518, at *11 (N.D. Ind. Feb. 13, 2006). In reaching that
conclusion, the district court considered photographic
evidence of the condition of the motorcycle and the police
8 Nos. 06-1771 & 06-1772
car’s bumper. It also considered the testimony of the
witnesses who had seen the police car following danger-
ously close to the motorcycle. It considered the absence of
a videotape from Myers’s car and whether that might
provide circumstantial evidence that damning evidence
was destroyed. The appellants also urge us to consider
the chase in the context of the cat-and-mouse events
prior to the chase and the possible bad blood between
Hilbert and Myers.
In the end, we agree with the district court that no
reasonable jury could find that Myers violated the appel-
lants’ Fourth Amendment rights. As the Court in Lewis
held, the plaintiff in a § 1983 case derived from a police
chase has the burden of proving two things: that the officer
forcibly stopped the vehicle and that the contact was
intentional. Lewis, 523 U.S. at 844. The appellants here
have failed to bring forth any evidence that there was
any contact between the motorcycle and Myers’s police
car. They argue that “if plaintiffs can establish at trial”
that the collision occurred or Myers forced the motorcycle
off the road, the Fourth Amendment claim survives. But
we have consistently held that summary judgment is “not
a dress rehearsal or practice run; it is the put up or shut
up moment in a lawsuit, when a party must show what
evidence it has that would convince a trier of fact to accept
its version of the events.” Hammel v. Eau Galle Cheese
Factory, 407 F.3d 852, 859 (7th Cir. 2005) (internal
citations omitted).
Even if we were to credit the testimony about the par-
ties’ history of antagonism, and even if we resolve the
conflict between witnesses about how close Myers was
following the motorcycle in favor of the appellant’s version
(as we must at this stage of the proceedings) this only
provides evidence to allow an inference about whether a
collision might have been intentional. We would draw that
inference in the light most favorable to the appellants, but
Nos. 06-1771 & 06-1772 9
there remains simply no evidence that any collision
occurred to begin with. Even the most damning evidence of
a nefarious motive (which this is not) does not over-
come the fact that the plaintiffs have provided no evidence
that any seizure within the meaning of the Fourth Amend-
ment has occurred. We do not allow parties to send every
speculation that they have to the jury despite an absence
of evidence. The district court’s entry of summary judg-
ment on the Fourth Amendment claim was correct.
B. Fourteenth Amendment Claim
The parties’ arguments on the Fourteenth Amendment
claim are more robust, and we turn now to that question.
Lewis establishes a heavy burden for a plaintiff to bear
when making a § 1983 claim based on the Fourteenth
Amendment. “To this end, for half a century now we
have spoken of the cognizable level of executive abuse of
power as that which shocks the conscience.” Lewis, 523
U.S. at 846. The district court found that the conduct in
question did not rise to the level of shocking the con-
science and entered summary judgment for the defendants.
We recount here the evidence that the appellants argue
demonstrates that Myers’s behavior shocks the conscience.
First, they note the altercation between Myers and Hilbert
that occurred a few months before the chase. Although
they do not apparently argue that the incident itself
is conscience-shocking, they offer it as proof of animosity
and perhaps a nefarious motive. They argue that such a
history, and Hilbert’s apparent fear of Myers in its wake,
might allow a jury to infer that Myers had an improper
motive on the night in question. They also note the “cat-
and-mouse” aspect to the events that immediately pre-
ceded the chase, going so far as to characterize Myers’s
actions as stalking the plaintiffs. They further note that
Myers could have prevented the chase if he had accosted
10 Nos. 06-1771 & 06-1772
the youths while they were still parked instead of waiting
for confirmation of Hilbert’s license status or to see them
driving the motorcycle. They speculate that Myers was
lying in wait to initiate the traffic stop at a place that
would maximize embarrassment for Hilbert.
They also criticize Myers’s decision to initiate a high-
speed chase once Hilbert fled. They argue that because
Hilbert’s identity was now known to the officers they
could have terminated the chase and tracked him down
later to issue a citation and impound the motorcycle.
Portland is, after all, a small town. They argue that
Portland’s pursuit policy supports terminating the pur-
suit once the driver has been identified and that Myers
should have weighed the risks associated with the pur-
suit against the benefit of apprehending the unlicensed
and fleeing rider.
Finally, they criticize the way Myers conducted the
pursuit. They argue, based on several eyewitnesses, that
he was following too closely. They also suggest that
even if the original chase were reasonable, that Myers
had six minutes to reconsider and to decide to stop the
pursuit based on weighing the risks and the rewards.
Taking all of this evidence, they argue that Myers behaved
in a conscience-shocking manner because he was motivated
by personal animosity and a desire to inflict harm on
Hilbert, which led him to violate departmental policy and
common sense by continuing a high-speed pursuit for a
minor traffic violation.
The appellees see matters differently, of course. But at
this stage, we are bound to view the facts in the light most
favorable to the appellants and to draw inferences in their
benefit. Nevertheless, the appellees also muster a number
of legal arguments to support the conclusion that these
actions do not shock the conscience. We have held before
that liability under this standard generally requires
Nos. 06-1771 & 06-1772 11
“deliberate action intended to harm another.” Bublitz v.
Cottey, 327 F.3d 485, 491 (7th Cir. 2003). We have held
that “the sine qua non . . . is a purpose to cause harm.” Id.(citing Schaefer v. Goch, 153 F.3d 793, 798 (7th Cir. 1998)).
The Court in Lewis instructs us that conscience-shock-
ing behavior is likely to be found where the “conduct [is]
intended to injure in some way unjustifiable by any
government interest.” Lewis, 523 U.S. at 849.
We agree with our sister circuit in holding that even a
minor traffic stop, and pursuit of a fleeing suspect after an
unexplained flight from that stop, is a legitimate govern-
ment interest. Graves v. Thomas, 450 F.3d 1215, 1223-24
(10th Cir. 2006). Graves also involved an officer whose
motive for making the stop might have been suspect. Id. at
1222-24. As for the argument that Myers could have
stopped the chase and tracked down Hilbert the next day,
we believe that this is an argument that goes to the
question of whether the pursuit was wise, not whether
it violated the Constitution.
The question of whether Myers’s training indicated that
he should stop the pursuit likewise does not raise ques-
tions that implicate the Constitution. Various sections
of the pursuit manual are quoted by both sides to support
arguments about whether Myers complied with depart-
ment directives. As the Court in Lewis noted, however, a
failure to comply with departmental policy does not
implicate the Constitutional protections of the Fourteenth
Amendment. 523 U.S. at 838-39. The Ninth Circuit in
Lewis had reversed summary judgment in favor of the
defendants, largely on grounds that their failure to com-
ply with department regulations raised a genuine issue
of material fact as to whether the behavior was deliber-
ately indifferent. Id. The Supreme Court reversed the
Ninth Circuit, holding that regardless of whether those
policy violations might give rise to a claim of deliberate
12 Nos. 06-1771 & 06-1772
indifference, they did not rise to the level of shocking the
conscience. Id. at 855.
The question for us, therefore, is whether there is
sufficient evidence of some intent to harm that goes beyond
the traffic stop, the decision to pursue, and the decision to
not terminate the pursuit at some point before the crash.
We find no evidence of that intent. The appellants’ stron-
gest case is made by the eye-witness accounts of the chase.
The testimony of the eye-witnesses is more damning than
the testimony of Myers or the ear-witnesses. Because a
jury might find that the eye-witnesses were more credible,
we will assume their version of events. Although we make
no judgments here of witness credibility, see Abdullahi v.
City of Madison, 423 F.3d 763, 773 (7th Cir. 2005), for the
purposes of this appeal we will assume that Myers con-
ducted the pursuit at speeds upwards of 130 miles per
hour within one to three car lengths of the fleeing motorcy-
cle. This assumption lands us squarely between Lewis and
Checki v. Webb, 785 F.2d 534 (5th Cir. 1986). Although
Checki predates Lewis, and comes to us from another
circuit, we consider it for persuasive purposes, particularly
in light of the fact that the Court in Lewis cited to it with
approval. 523 U.S. at 854 n.13.
In Checki, a motorist on a Louisiana highway noticed a
car in his mirror that appeared to contain two men in
cowboy hats and a woman. 785 F.2d at 535. The trailing
car, actually an unmarked police car, followed him for
upwards of twenty miles at distances as close as two feet.
Id. Not knowing that the car was a police vehicle, the
motorist attempted to flee. Id. Eventually the officers
turned on their lights and siren, giving the first indication
that they were attempting to stop the car. Id. By this
point, the motorist apparently (and understandably) was
not entirely convinced that the pursuing car was a legiti-
mate police vehicle. He fled for another ten miles or so,
Nos. 06-1771 & 06-1772 13
before being stopped by a state police road block. Id. at
535-36. After Checki was handcuffed, the trailing officers
arrived, handcuffed him, pistol-whipped him, and broke
his passenger’s arm. Id. at 536. The court in Checki
remanded for trial, holding that “where a police officer
uses a police vehicle to terrorize a civilian, and he has done
so with malicious abuse of official power shocking to the
conscience, a court may conclude that the officers have
crossed the constitutional line”. Id. at 538.
By contrast, the facts in Lewis are similar to the confron-
tation between Myers and Hilbert. In Lewis, the police
made it clear from the beginning of the chase that they
were attempting to pull the motorcycle over. 523 U.S. at
836-37. They used their lights and sirens. Id. at 837. They
followed at speeds up to 100 miles per hour and trailed
by as little as 100 feet. Id. The Court found that the
police did not violate Lewis’s Fourteenth Amendment
rights by initiating or continuing the pursuit because this
behavior did not rise to the conscience-shocking extreme
such as the officers’ in Checki did. Id. at 854-55. Even
taking the facts and inferences in the light most favorable
to the appellees, Myers’s behavior does not shock the
conscience as the Court has established that standard in
Lewis.
III. CONCLUSION
The Supreme Court has set the bar awfully high in
pursuing a Fourteenth Amendment claim that arises out
of a police chase. There might be questions on this record
as to whether Myers was negligent, reckless, or even
deliberately indifferent to the safety of Hilbert and
Philebaum, but under the standard set forth in Lewis
those questions are reserved to the state courts and the
law of tort. Under a standard that requires conscience-
shocking behavior and an intent to cause harm unrelated
14 Nos. 06-1771 & 06-1772
to a legitimate government interest, the district court
was correct that the defendants were entitled to judg-
ment as a matter of law on the claims under 42 U.S.C.
§ 1983. Accordingly, the decision of the district court is
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-21-07