Jevarreo Kelley-Lomax v. City of Chicago

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 24-2682
JEVARREO KELLEY-LOMAX,
Plaintiff-Appellant,
v.
C
ITY OF CHICAGO, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:20- cv-04595 — Manish S. Shah, Judge.
____________________
ARGUED OCTOBER 28, 2025 — DECIDED AUGUST 13, 2026
____________________
Before BRENNAN, Chief Judge, and JACKSON-AKIWUMI and
LEE, Circuit Judges.
JACKSON-AKIWUMI, Circuit Judge. Officers Robert Garduno
and Anthony Spicuzza arrested Jevarreo Kelley-Lomax for
possession of a gun. The officers attributed the gun to him af-
ter conducting an unchallenged search of a car and finding it
under the seat he had most recently occupied. At trial, the
state failed to offer sufficient evidence of Kelley-Lomax’s
guilt, so the state court judge granted him a directed verdict

2 No. 24-2682
on the charge. Kelley-Lomax later sued the officers for false
arrest and malicious prosecution pursuant to 42 U.S.C. § 1983.
The district court found that the existence of probable cause
was fatal to both claims and granted summary judgment to
the officers. Because we agree that the undisputed facts estab-
lish both probable cause to arrest and probable cause to pros-
ecute, we affirm.
I
In February 2019, a 911 caller reported that a group of Af-
rican American males were pointing guns at his car at a gas
station. Officers Garduno and Spicuzza responded to the dis-
patch report that “males were standing at pump #6 and
pointed two guns at the caller’s vehicle.” The dispatcher also
stated that one of the armed men “was an African American
male wearing a black coat with stripes.”
The officers did not see anyone at pump #6 when they ar-
rived. However, they did see a blue SUV with four African
American males inside parked at an immediately adjacent
pump. Kelley-Lomax sat in the SUV’s front passenger seat
wearing a black hooded sweatshirt that was open, revealing
a white shirt underneath. The officers’ body camera footage
shows that another occupant wore a blue jacket with a red and
white ring around each sleeve, and the remaining two occu-
pants wore black hooded sweatshirts.
The officers ordered the men out of the SUV, frisked them,
and handcuffed them at the back of the vehicle. After the men
were secured, Officer Garduno radioed to dispatch for addi-
tional descriptive details of the suspects. Dispatch recon-
nected with the 911 caller who described his assailants’ vehi-
cle as “brown or orange”; and described one of the allegedly

No. 24-2682 3
armed men as “wearing a black coat with a ring around the
coat.” The caller further described the coat as “a black puffy
coat with like a colored ring around, maybe red or something
like that.”
At some point during the encounter, the officers searched
the SUV. Another officer who assisted with the search found
a loaded handgun under the front passenger seat. The gun
was near a soda bottle and chip bag and not visible until the
officer looked under the seat. When asked, Kelley-Lomax ad-
mitted that he did not have a Firearm Owner’s Identification
Card or a Concealed Carry License authorizing him to carry a
gun. Officer Garduno arrested Kelley-Lomax for aggravated
unlawful use of a weapon which prohibits an unlicensed per-
son from possessing a gun on or about his person or in any
vehicle. 720 ILCS 5/24-1.6(a)(1) (2018).
1
Sometime at the scene,
the officers also learned that Kelley-Lomax’s brother, who
was in another car at the gas station, had rented the SUV and
had authorization to carry a gun. The officers attempted but
were unable to review the gas station surveillance video from
that evening to confirm the caller’s report.
Officers Garduno and Spicuzza jointly prepared the arrest
report and the incident report. In the arrest report, they said
that they responded to a report of a “person with a gun” and
noted “CALLER RELATED DESCRIPTION OF OFFENDERS
ARE ONE MALE BALCK (sic) WEARING A BLACK
JACKET, THE SECOND OFFENDER WAS A MALE BALCK

1
We cite the version of the statute in effect at the time of Kelley-Lomax’s
arrest. The statute has since been amended, and its title has changed from
“aggravated unlawful use of a weapon” to “aggravated unlawful posses-
sion of a weapon.”

4 No. 24-2682
(sic) AND HAD A BLACK JACKET WITH A STRIPE.” In the
incident report, the officers indicated that they requested a
call back to the victim “with negative results” and spoke to a
clerk at the gas station who stated that she “D[ID] NOT HAVE
ACCESS TO SECURITY CAMERA.” (The officers returned to
the gas station another day to view the security camera foot-
age.)
The Cook County State Attorney’s Office approved felony
charges and presented the case to a grand jury. Officer Gar-
duno was the only witness to testify at the grand jury hearing.
He testified that two of the SUV’s occupants “fit the physical
and clothing description given by the 911 caller,” the vehicle
matched the caller’s description, and video footage from the
gas station showed individuals exiting a vehicle with hand-
guns and pointing them in the direction of another vehicle
that was driving by. The grand jury indicted Kelley-Lomax
and the case proceeded to trial.
At trial, Officer Garduno was again the only witness. He
repeated his testimony that he observed “two occupants”
who “matched the description provided to us by the caller.”
He also testified that he retrieved the gun from underneath
Kelley-Lomax’s seat. After the state rested its case, the defense
moved for a directed verdict on the grounds that the state had
not proven beyond a reasonable doubt that Kelley-Lomax
knew the gun was under his seat. The court granted the de-
fense’s motion.
Kelley-Lomax subsequently brought this action pursuant
to 42 U.S.C. § 1983 for false arrest and malicious prosecution
under the Fourth Amendment. The officers moved for sum-
mary judgment and the district court granted the motion. The
court held that the gun’s proximity and accessibility to Kelley-

No. 24-2682 5
Lomax provided probable cause for the officers to arrest him
for “aggravated unlawful use of a weapon.” In the court’s
view, any facts that supported Kelley-Lomax’s innocence did
not rise to a level that required the officers to abandon their
assumption that he had at least joint possession of the gun.
With respect to malicious prosecution, the court acknowl-
edged that there was a question of fact about whether the of-
ficers fabricated or omitted material evidence. Nevertheless,
the court granted summary judgment to the officers because
Kelley-Lomax did not provide any evidence that his prosecu-
tion was based solely on fabricated evidence.
II
We review the district court’s grant of summary judgment
de novo. Beauchamp v. City of Noblesville, 320 F.3d 733, 742 (7th
Cir. 2003). In doing so, we view the facts and draw all reason-
able inferences from them in Kelley-Lomax’s favor. Id. Sum-
mary judgment for the officers is appropriate only if “there is
no genuine issue of material fact for trial” or Kelley-Lomax
“cannot establish an element essential to his claim on which
he will bear the burden of proof at trial.” Id. (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
Probable cause is a complete defense for the officers
against Kelley-Lomax’s false arrest and malicious prosecution
claims. Martin v. Marinez, 934 F.3d 594, 598–99 (7th Cir. 2019)
(false arrest); Lee v. Harris, 127 F.4th 666, 672 (7th Cir. 2025)
(malicious prosecution). Thus, to defeat the officers’ summary
judgment motion, he must show that the officers lacked prob-
able cause to arrest him and he must overcome the presump-
tion of probable cause for his prosecution. Washington v. City
of Chicago, 98 F.4th 860, 870 (7th Cir. 2024). Although probable
cause can be fatal to both claims, the standard differs for each

6 No. 24-2682
claim. Kee v. City of New York, 12 F.4th 150, 166 (2d Cir. 2021)
(“[P]robable cause to prosecute should not be conflated with
probable cause to arrest”); see also Williams v. City of Chicago,
733 F.3d 749, 756–58, 759–61 (7th Cir. 2013) (analyzing proba-
ble cause to arrest and probable cause to charge separately).
Probable cause to arrest exists where the facts and circum-
stances support an officer’s reasonable belief that a person is
involved in criminal activity. Williams, 733 F.3d at 756. By con-
trast, probable cause to prosecute exists where the facts
“would lead a person of ordinary care and prudence to be-
lieve or to entertain an honest and sound suspicion that the
accused committed the offense charged.” Id. at 759 (citation
modified). Consequently, in some cases probable cause may
support an arrest but be insufficient to justify a later prosecu-
tion. That is not the case here, however, because the facts that
justified Kelley-Lomax’s arrest also justified his prosecution.
A. False Arrest
Officers Garduno and Spicuzza arrested Kelley-Lomax for
aggravated unlawful use of a weapon under Illinois law. 720
ILCS 5/24-1.6(a)(1). A person violates that statute by carrying
a gun on his person (actual possession) or “about” his person
(constructive possession) without a license. Id. §§ 5/24-
1.6(a)(1), (a)(3). A person has constructive possession of a fire-
arm when he “exercises immediate and exclusive control over
the area where the firearm is found” and has knowledge of its
presence. People v. Brown, 164 N.E.3d 1187, 1191 (Ill. 2020).
It is the latter requirement that Kelley-Lomax takes issue
with here. He contends that the officers lacked probable cause
to arrest him because they had no reason to believe he knew
there was a gun under his seat. According to Kelley-Lomax,
the officers should be held liable because the Fourth

No. 24-2682 7
Amendment required them to have a reason to believe that all
elements of the state law offense—including the knowledge
element—were satisfied before they arrested him.
To support his position, Kelley-Lomax directs us to two
Illinois state court decisions, People v. Bailey, 776 N.E.2d 824
(Ill. App. Ct. 2002), and People v. Crumpton, 263 N.E.3d 606 (Ill.
App. Ct. 2024), and to our decision in United States v. Chairez,
33 F.3d 823 (7th Cir. 1994). But those cases involved criminal
prosecutions and offer us only the unremarkable principle
that evidence of proximity to a gun is insufficient to obtain a
conviction. See also United States v. Windom, 19 F.3d 1190, 1200
(7th Cir.) (mere proximity, mere presence, or mere association
is insufficient to support a finding of possession), cert. denied,
513 U.S. 862 (1994). Although true, that principle is unhelpful
to Kelley-Lomax because the standard to establish probable
cause to arrest someone for possession is lower than the
standard to prove guilt on the charge. Whereas convictions
require proof beyond a reasonable doubt, probable cause
“deals not with hard certainties” and requires only a “sub-
stantial chance of criminal activity, not an actual showing of
such activity.” Abbott v. Sangamon County, 705 F.3d 706, 714
(7th Cir. 2013); Washington, 98 F.4th at 875 (citation modified).
Probable cause to arrest exists when the facts and circum-
stances within an officer’s knowledge are sufficient to support
a reasonable belief that a “suspect has committed, is commit-
ting, or is about to commit an offense.” Michigan v. DeFillippo,
443 U.S. 31, 37 (1979). “Probable cause is a fluid concept” de-
termined on “common-sense interpretations” of the totality of
the circumstances the officer confronted at the time of the ar-
rest. United States v. Brown, 973 F.3d 667, 706 (7th Cir. 2020);
United States v. Breit, 429 F.3d 725, 728 (7th Cir. 2005); Abbott,

8 No. 24-2682
705 F.3d at 714. The officer’s interpretations and belief of the
suspect’s criminal involvement need not be correct but must
be reasonable. Muhammad v. Pearson, 900 F.3d 898, 909 (7th
Cir. 2018). In determining whether probable cause existed at
the time of the arrest, we view the facts from the position of
“’a reasonable person in the position of the arresting officer—
seeing what he saw, hearing what he heard.’” Abbott, 705 F.3d
at 714 (emphasis omitted) (citation modified).
Kelley-Lomax does not challenge the search of the car dur-
ing which the officers discovered the gun. Nor does he chal-
lenge as an unlawful arrest the officers’ decision upon arrival
to detain him by handcuffing him (and the other passengers).
Accordingly, the only question for us to decide is whether, at
the time of Kelley-Lomax’s arrest, the officers could have rea-
sonably believed that Kelley-Lomax possessed the gun.
Brown, 973 F.3d at 706 (“What matters, and all that matters, is
whether the facts known to the arresting officers at the time
they acted supported probable cause to arrest.”) (citation
modified).
The officers encountered Kelley-Lomax while responding
to a report of African American males standing at a gas pump
pointing guns. When they arrived, they saw an SUV, with
four African American males inside, at an adjacent pump.
They ordered the occupants, including front passenger
Kelley-Lomax, to exit the car before they searched it. They
discovered the gun hidden underneath Kelley-Lomax’s seat,
and he later confirmed that he did not have authorization to
carry a gun. On these facts, Kelley-Lomax’s proximity to the
gun and the surrounding circumstances could have led the
officers to reasonably believe that Kelley-Lomax possessed
the gun. This is especially so considering that Illinois

No. 24-2682 9
recognizes a theory of joint possession under which more
than one person could constructively possess the same gun.
Under that theory, the “exclusive dominion and control
required to establish constructive possession is not
diminished by evidence of others’ access to the contraband.”
Young v. City of Chicago, 987 F.3d 641, 645 (7th Cir. 2021)
(quoting People v. Hill, 589 N.E.2d 1087, 1089 (Ill. App. Ct.
1992)). Rather, “[w]hen the relationship of others to the
contraband is sufficiently close to constitute possession, the
result is not vindication of the defendant, but rather a
situation of joint possession.” Id. (citation omitted).
Kelley-Lomax disagrees. He points to the facts that he did
not own or operate the SUV; his brother, who was licensed to
carry a gun, had rented the SUV; and the gun was surrounded
by other items and not visible until the officers looked under
the seat. But those facts create a reasonable doubt as to Kelley-
Lomax’s guilt; they do not negate probable cause. Lee, 127
F.4th at 676 (explaining that evidence that created doubt but
did not conclusively exclude plaintiff from the crime suspects
did not negate probable cause). Because the circumstances at
the time of Kelley-Lomax’s arrest supported the officers’ com-
monsense belief that he illegally possessed a gun, probable
cause bars the claim for false arrest.
B. Malicious Prosecution
Probable cause is an absolute bar to malicious prosecution
claims too. Young, 987 F.3d at 646. Our system assumes that
judicial determinations are based on a “truthful showing of
probable cause.” Washington, 98 F.4th at 870 (emphasis omit-
ted) (citation modified). As such, “[j]udicial determinations of
probable cause are ordinarily entitled to a presumption of va-
lidity, and ‘an indictment is prima facie evidence of probable

10 No. 24-2682
cause.’” Id. at 869 (quoting Coleman v. City of Peoria, 925 F.3d
336, 351 (7th Cir. 2019)) (citation omitted). Thus, to press his
claim for malicious prosecution, Kelley-Lomax must over-
come the presumptively valid probable cause determinations
by the judge at his bail hearing and by the grand jury. Id. at
870. To do so, he must satisfy the two-prong test this court
adopted in Beauchamp. 320 F.3d at 742–43. He must show that
(1) the officers fabricated or omitted information (2) that was
or would have been material to the judge’s and grand jury’s
probable cause determinations. Washington, 98 F.4th at 870
(outlining the Beauchamp test). Step one requires showing that
the officer “knowingly or intentionally or with a reckless dis-
regard for the truth, made false statements to the judicial of-
ficer.” Id. at 863 (citation modified).
There is a dispute of fact about whether the officers fabri-
cated material information. First, in the arrest and incident re-
ports, the officers represented that dispatch was unable to re-
connect with the caller after the officers arrived on the scene.
Contrary to the reports, however, dispatch was able to recon-
nect with the caller. Second, the officers wrote in their reports
that the 911 caller provided descriptions of two suspects. But
the caller described only one suspect. Third, Officer Garduno
told the grand jury and the trial jury that two men in the SUV
fit the caller’s description of the suspects’ physical appearance
and clothing. But, again, the caller described only one assail-
ant who wore a “black puffy coat.” Such a coat is distinguish-
able from the black hooded sweatshirts worn by three of the
SUV occupants (and, arguably, the blue jacket worn by the
fourth occupant). Fourth, Officer Garduno told the grand jury
that the video footage confirmed the caller’s account of men
pointing handguns at a passing vehicle. This testimony is
nothing like Officer Spicuzza’s account of the video. When

No. 24-2682 11
Officer Spicuzza described the video at his deposition, he did
not mention seeing any men exiting a vehicle with guns, any
men pointing guns at a vehicle, or any guns at all.
Given these many inconsistencies, a reasonable jury might
be able to conclude that, at minimum, the officers recklessly
made false statements to the judge and grand jury. On this
basis, we assume Kelley-Lomax can satisfy the first step of the
Beauchamp test.
Kelley-Lomax stops there, insisting that a jury must decide
this case because the officers’ false statements could have in-
fluenced the judge and grand jury. But at the second step of
the Beauchamp test we do not ask whether the fabricated in-
formation could have influenced the judicial determinations
of probable cause. Rather, we ask whether probable cause re-
mains when all the fabricated information is removed. Id. at
872; see also Coleman, 925 F.3d at 351 (overcoming presump-
tion of probable cause requires “evidence that law enforce-
ment obtained the indictment through improper or fraudu-
lent means”). This is consistent with the Supreme Court’s de-
cision in Manuel v. City of Joliet which clarified that probable
cause must support pre-trial detention before and after formal
legal process to comply with the Fourth Amendment. 580 U.S.
357, 366 (2017).
Since Manuel, we have affirmed grants of summary judg-
ment in several cases where the record supported probable
cause despite evidence of material fabrication or omission. In
Beauchamp, we held that the plaintiff could not succeed on his
claim despite the defendant officers’ omission of exculpatory
evidence at the probable cause hearing because the remaining
evidence supported the belief that the plaintiff committed the
crime. 320 F.3d at 744. Later, in Washington we held that the

12 No. 24-2682
plaintiffs could not show but-for causation because “after
eliminating the alleged misrepresentations and adding in the
omissions, undisputed facts show[ed] that probable cause
would have still existed to detain” the plaintiffs until trial. 98
F.4th at 878. More recently, in Lee we affirmed the district
court’s grant of summary judgment to defendant officers be-
cause the plaintiff failed to identify, at any stage of the pro-
ceedings, new facts that would have eliminated the probable
cause established at the time of his arrest. 127 F.4th at 676. In
each of these cases, we reviewed the record to evaluate
whether the evidence without the fabrications and omissions
established probable cause to prosecute the plaintiff.
We follow suit and similarly conclude that the evidence
against Kelley-Lomax, even without the fabrications,
established probable cause to prosecute him. Even supposing
the officers fabricated the information mentioned above—
namely what the surveillance video showed and how Kelley-
Lomax matched the caller’s description—Kelley-Lomax’s
claim fails because the remaining evidence provided
sufficient probable cause to prosecute him for unlawful
possession of a gun. Indeed, although this is not true in every
case, here the facts that established probable cause for the
officers to arrest Kelley-Lomax also provided the basis for his
prosecution. As we discussed earlier, the circumstances
surrounding his arrest provided probable cause to believe
Kelley-Lomax committed a crime. That is, a reasonable officer
could have believed that Kelley-Lomax, who occupied the
seat above the gun and admittedly did not have a gun license,
illegally possessed the gun. This is so even though someone
else could have placed the gun under the seat without his
knowledge and he could have been unaware of its presence
his entire time in the SUV. These possibilities would be

No. 24-2682 13
defenses at trial, not signs that Kelley-Lomax could not have
been prosecuted. Further, fatal to the malicious prosecution
claim, none of the facts that emerged later (fabricated or
truthful) negated the officers’ initial reasonable assumption.
Most of the false statements concern the events the 911 caller
observed. But the evidence related to those events did not
undercut probable cause to prosecute Kelley-Lomax for
possession of the gun discovered under his seat.
Our dissenting colleague is correct that “Illinois courts
have long held that “proximity to the items at issue is not suf-
ficient to show possession.’” Post, at 16. This likely explains
Kelley-Lomax’s acquittal on the gun charge. But neither our
dissenting colleague nor Kelly-Lomax has identified a case
stating that the prosecution lacked probable cause to initiate
charges because the prosecution was unable to prove posses-
sion beyond a reasonable doubt at trial. The officers are enti-
tled to summary judgment on the malicious prosecution
claim.
III
Kelley-Lomax’s false arrest claim fails because the officers’
discovery of the gun under his seat and his admission that he
did not have a license to carry established probable cause to
arrest him for possession. His malicious prosecution claim
fails because the same facts supported his prosecution. Alt-
hough the gun’s obscurity underneath the seat, his brother’s
carrying license, and the details about the SUV’s ownership
and operation could help prove Kelley-Lomax’s innocence,
they did not destroy probable cause. Probable cause existed
at all stages of the criminal process in Kelley-Lomax’s case, so
the judgment of the district court is AFFIRMED.

14 No. 24-2682

LEE, Circuit Judge, concurring in part and dissenting in
part. I join the majority’s opinion as to Sections I and II.A.
As to Section II.B, I agree with the majority’s conclusion as
to step one in the analysis laid out in Beauchamp v. City of No-
blesville, 320 F.3d 733, 742–43 (7th Cir. 2003); namely, that a
reasonable jury could conclude that Officer Garduno reck-
lessly misrepresented and omitted material facts to the judge
and grand jury.
That said, I respectfully disagree with the majority’s con-
clusion as to Beauchamp’s second step. In my view, after strip-
ping away the alleged false statements and considering the
material omissions, the record does not support probable
cause to prosecute Kelley-Lomax for aggravated unlawful use
of a weapon. According to the majority opinion, “a reasonable
officer could have believed that Kelley-Lomax, who occupied
the seat above the gun and admittedly did not have a gun li-
cense, illegally possessed the gun.” This is true, the majority
writes, even if someone else placed the gun there without
Kelly-Lomax’s knowledge, even if he was unaware of its pres-
ence, and even if he had no ownership or control over the ve-
hicle.
I disagree that these facts alone support probable cause to
prosecute under Illinois’s aggravated unlawful use of a
weapon statute. Unlike probable cause to arrest, which does
not require specific evidence as to each element, probable
cause to prosecute does. Compare Spiegel v. Cortese, 196 F.3d
717, 725 n.1 (7th Cir. 1999) (as amended Jan. 7, 2000) (“[I]n our
circuit, not every element need be supported by specific evi-
dence to arrest in the heat of the moment.”), with United States
v. Jones, 418 F.3d 726, 730 (7th Cir. 2005) (“A grand jury that
charged [the defendant] with ‘using, carrying, brandishing,

No. 24-2682 15
cause that [the defendant] committed each of those four
actions.”).
Thus, in determining whether there was probable cause to
prosecute Kelley-Lomax, we should look to the elements of
the offense with which he was charged as defined by state
law. See Hawkins v. Mitchell, 756 F.3d 983, 994 (7th Cir. 2014)
(“The existence of probable cause depends, in the first in-
stance, on the elements of the predicate criminal offense(s) as
defined by state law.”). Illinois’s statute for aggravated un-
lawful use of a weapon, 720 Ill. Comp. Stat. 5/24-1.6(a)(2) re-
quires, among other things, that the person “knowingly” pos-
sess a weapon “on or about his ... person.” In interpreting a
similar statute, the Illinois Supreme Court has explained that
“on ... his person” refers to actual possession, while “about
his ... person” to refers constructive possession. People v. Wise,
182 N.E.3d 656, 662 (Ill. 2021).
Here, it is undisputed that Kelly-Lomax did not actually
possess the gun, so the defendants must rely on the theory of
constructive possession. Under Illinois law, a person con-
structively possesses a firearm when the person “has
knowledge of the presence of the weapon and exercises im-
mediate and exclusive control over the area where the firearm
is found.” Id. (citation omitted). And to make this determina-
tion, Illinois courts look to various factors such as: “(1) the vis-
ibility of the weapon from defendant’s position in the car, (2)
the period of time in which the defendant had an opportunity
to observe the weapon, (3) any gestures by the defendant in-
dicating an effort to retrieve or hide the weapon, and (4) the
size of the weapon.” People v. Bailey, 776 N.E.2d 824, 827–28
(Ill. App. Ct. 2002) (citation omitted).
Based on this record, I believe that a reasonable jury could

16 No. 24-2682

find that probable cause was lacking as to the knowledge ele-
ment of the gun charge. First, it is undisputed that the gun
was hidden under Kelley-Lomax’s seat; the majority notes
that the gun was “not visible until the officer looked under the
seat.” It is also undisputed that Kelley-Lomax did not make
any gestures towards the area of the gun. Furthermore, at the
time of the arrest, the officers knew that the car did not belong
to Kelley-Lomax; it was rented by his brother. See Dkt. 132
¶ 21 (defendants’ admitting that while they were at the Shell
gas station, they learned that Kelley-Lomax’s brother, who
was present at the scene, had rented the vehicle in which the
gun was found). The officers also knew that, while Kelley-
Lomax did not have a Firearm Owner’s Identification Card
(FOID card), his brother did. Id. ¶ 22.
Thus, once we put aside the officers’ purported false state-
ments and omissions, the only evidence connecting Kelley-
Lomax to the gun is the fact that he was sitting on the seat
below which the gun was hidden. But Illinois courts have long
held that “proximity to the items at issue is not sufficient to
show possession.” People v. McIntyre, 962 N.E.2d 1108, 1112
(Ill. App. Ct. 2011) (citing People v. Day, 366 N.E.2d 895, 896
(Ill. App. Ct. 1977)); Bailey, 776 N.E.2d at 827 (“A defendant’s
mere presence in a car, without more, is not evidence that he
knows a weapon is in the car.”) (citing People v. Davis, 365
N.E.2d 1135, 1139 (Ill. App. Ct. 1977)); United States v. Brown,
724 F.3d 801, 804 (7th Cir. 2013) (holding that “mere proximity
to the item at the time of seizure is not enough” to establish
possession) (citation modified); Lindsey v. Macias, 907 F.3d
517, 520 & n.2 (7th Cir. 2018) (noting that the quoted language
from Brown is “a correct statement of law, and one that has
been well-established for quite some time” and that Illinois
follows this rule); United States v. Chairez, 33 F.3d 823, 825 (7th

No. 24-2682 17
Cir. 1994) (finding the government’s argument that “because
the gun was found under [the defendant’s] seat during a drug
transaction, [he] must have known of the gun’s existence” did
not provide “even a shred of evidence that [the defendant]
knew about the gun.”).
Additionally, qualified immunity at this stage in the case
would be premature. As the majority opinion notes, whether
Officer Garduno knowingly or recklessly made false state-
ments to the judge and grand jury is disputed, and it “is
clearly established that it violates the Fourth Amendment ‘to
use deliberately falsified allegations to demonstrate probable
cause.’” Rainsberger v. Benner, 913 F.3d 640, 643 (7th Cir. 2019)
(quoting Franks v. Delaware, 438 U.S. 154, 168 (1978)). Thus, the
issue of qualified immunity cannot be resolved before trial.
Accordingly, on this record, I would reverse the district
court’s grant of summary judgment as to the malicious pros-
ecution claim and remand for further proceedings. Thus, I re-
spectfully dissent as to Section II.B.