Lee Catledge v. City of Chicago

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 12, 2016*
Decided December 13, 2016
Before
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 16-1096
LEE CATLEDGE,
Plaintiff-Appellant,
v.
CITY OF CHICAGO, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 09 C 05065
John J. Tharp, Jr.,
Judge.
O R D E R
This suit under 42 U.S.C. § 1983 against the City of Chicago and three of its police
officers was previously before us. In August 2008 the plaintiff, Lee Catledge, was sitting
in his parked car holding a video camera when a woman saw him and called police.
The 911 operator wrote in the call log that a black male in his late forties was sitting in
his parked car with a video camera “taping females” and had been there daily. Several
officers responded and detained Catledge, and two of the named defendants,
* We have unanimously agreed to decide this case without oral argument
because the briefs and record adequately present the facts and legal arguments, and oral
argument would not significantly aid the court. F ED. R. APP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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Dale Martin and Danielle Kappel, searched his car without consent before releasing
Catledge. He sued, claiming that the police did not have justification to detain him or
probable cause to search his car. The district court initially dismissed the suit sua sponte
with the explanation that Catledge did not state a Fourth Amendment claim against any
defendant. After we overturned that ruling, see Catledge v. City of Chicago, 428 F. App’x
646 (7th Cir. 2011), the district court granted the City’s motion to dismiss on the ground
that Catledge had not attributed the actions of the individual officers to a municipal
custom or policy. See Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978).
The court then granted summary judgment for the three officers. The court first
reasoned that undisputed evidence establishes that Martin, Kappel, and the third
officer, Russell McKnight (who did not help search Catledge’s car), had reasonable
suspicion to detain Catledge. The court then concluded that, although Martin and
Kappel did not have probable cause to search, a jury could not reasonably find that they
knew that probable cause was lacking, and, thus, these officers are protected by
qualified immunity. Only this last conclusion is challenged by Catledge on appeal, so
we need not say more about his Monell claim or his claim that he was detained without
reasonable suspicion. On this record, however, we conclude that a jury reasonably
could decide that Martin and Kappel knew they lacked probable cause to search
Catledge’s car.
Our review is de novo, and we evaluate the evidence in the light most favorable
to Catledge. See Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003). At summary judgment
the defendants principally relied upon Catledge’s complaint and deposition, along with
affidavits from McKnight and a City employee who handles 911 call records. (At
summary judgment, both of the officers who searched Catledge’s car stayed silent.
Martin did not submit an affidavit or other form of testimony giving his version of the
story. And throughout the litigation, Kappel insisted that she did not recall
encountering Catledge or participating in the search of his car, though her involvement
is not disputed for purposes of summary judgment.)
McKnight and the City employee, in contrast with the 911 operator’s terse log
entry, testified by affidavit that the caller had reported that she and other women were
being videotaped by the man in the parked car. The police department dispatched
McKnight, a uniformed officer working alone, and the two other defendants, Martin
and Kappel, who were in plainclothes and riding together. McKnight, who arrived first,
testified that he saw Catledge’s car parked at the corner and noticed that the occupant
matched the 911 caller’s description. He parked with the lights on his ATV still flashing
and approached Catledge “to conduct an investigatory stop.” (When deposed, Catledge

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explained that he worked for a messenger service and often parked on that corner while
waiting to be dispatched because parking there was free. A placard in the windshield
identified the messenger company by name and by its state Commerce Department
registration number.)
According to McKnight, after he told Catledge about the 911 call, the plaintiff
responded that he had a video camera but it was broken and he was not using it to film
women. Rather, Catledge explained to McKnight, he had been pointing the broken
camera at a hovering helicopter. In his deposition Catledge explained that he had seen
the same helicopter over his house, and, afraid that it was following him, tried to scare
it away by pretending to film it. McKnight conceded that another officer then examined
Catledge’s camera and verified that it was broken.
In his affidavit McKnight says nothing at all about the search of Catledge’s car. In
fact, all of the details about the search come from Catledge’s testimony, much of which
the defendants adopted. In their motion for summary judgment, the defendants
acknowledge that two of them (presumably Martin and Kappel) searched the car and
Catledge’s computer bag, even though they now knew that his camera was broken. All
they found were “wires, plugs, and batteries,” which Catledge explained were for the
video camera and his computer. Martin and Kappel then departed temporarily, but
when they returned a few minutes later they searched Catledge’s car again.
In opposing the motion for summary judgment, Catledge relied on the evidence
submitted by the defendants, along with police attendance logs establishing Kappel’s
presence on the day of the incident. (Although Catledge’s response did not conform to
Local Rule 56.1, the district court opted against rigorously applying that rule and
instead considered Catledge’s additional factual representations to the extent they are
“material and properly supported.” We do the same.) Catledge noted that the City
employee―whose affidavit purports to rely on the 911 operator’s call
summary―exaggerates that document by asserting that the 911 caller had said that she
was being videotaped and that the occupant of the car had been videotaping women
every day. Catledge also augmented the defendants’ account of the search. In his
deposition Catledge had described how Martin and Kappel began searching his car
without even saying a word to him. They ransacked the entire car, his toolbox, and
several other bags including the computer bag (where they found the cables and
batteries), and dumped his belongings onto the street. They then left, he agreed, before
returning and searching the car a second time.

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Catledge also testified at his deposition that throughout the encounter he had
asked the police officers what was going on but was told nothing and treated with
disdain. When he asked why his car was being searched without a warrant, one officer
retorted that Catledge would want them to investigate if someone had filmed his
mother. Kappel, he said, had called him a “sick creep.” Another officer said that “the
Patriot Act” allowed them to search the car.
As noted, Catledge no longer claims that the investigatory stop was unlawful,
but he continues to insist that Martin and Kappel can be held liable for searching his
car. Those defendants, in contrast, continue to insist that they had probable cause to
conduct a warrantless search based on the automobile exception. That exception allows
police to search a vehicle if they have probable cause to believe that evidence of a crime
or contraband is inside. Arizona v. Gant, 556 U.S. 332, 347 (2009); United States v.
Edwards, 769 F.3d 509, 511 (7th Cir. 2014). Martin and Kappel contend that, given the
911 call, the corroboration of Catledge’s description and location, and his “strange
story” that he was pointing a broken camera at a helicopter, they had probable cause to
believe that the car contained evidence that Catledge was stalking someone or engaging
in disorderly conduct. They assert that his car could have contained “receipts or other
indicators that Catledge had been in that location on multiple days or had been in other
locations near the caller, notes pertaining to the subject of his stalking, media containing
video recordings, binoculars, or a camera that was actually functional.” All of these
items, the officers say, would have supported charging Catledge with stalking.1 The
1 As relevant to this case, the 2008 version of the Illinois criminal code provided
that a “person commits stalking when he or she, knowingly and without lawful
justification, on at least 2 separate occasions follows another person or places the person
under surveillance or any combination thereof and . . . places that person in reasonable
apprehension of immediate or future bodily harm, sexual assault, confinement or
restraint.” 720 ILCS 5/12-7.3(a)(2) (the statute has since been amended, but in substance
remains the same). The phrase "places a person under surveillance" means
“(1) remaining present outside the person's school, place of employment, vehicle, other
place occupied by the person, or residence other than the residence of the defendant; or
(2) placing an electronic tracking device on the person or the person's property.” Id. §
5/12-7.3(d).

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officers do not say what they expected to find that would be evidence that Catledge had
engaged in disorderly conduct.2
But to have probable cause to believe that Catledge’s car contained evidence of a
crime, Martin and Kappel first needed probable cause to believe that he had committed
a crime. And the district court rightly decided that the two officers did not have
probable cause to conclude that Catledge had been engaged in criminal conduct.
Videotaping other persons in public places is not illegal in Illinois, Reher v. Vivo,
656 F.3d 772, 776 (7th Cir. 2011), so the officers needed reason to believe that something
more was going on. They contend that they had probable cause to suspect Catledge of
stalking based on United States v. Raibley, 243 F.3d 1069, (7th Cir. 2001). In that opinion
we concluded that a police officer had reasonable suspicion to conduct an investigatory
stop under Terry v. Ohio, 392 U.S. 1 (1968), after the officer confirmed with multiple
Wal-Mart employees that a stranger from a city more than 200 miles away had been
seen in the parking lot of the small-town store surreptitiously taping a 17-year-old
female employee, that the man fled the parking lot after he realized others had noticed
his taping, and that he later reappeared in the parking lot but fled again as soon as he
saw a police officer. Id. at 1071–72, 1074–75. We do not understand how Raibley could be
helpful to Martin and Kappel. True, the suspect’s vehicle in that case was searched, but
the suspect consented, and we were explicit that our decision was premised on the low
threshold of reasonable suspicion needed for a Terry stop. Id. at 1074–75. Here the
information available to the defendants pales in comparison, and yet they contend that
Raibley supports a finding of probable cause to believe that Catledge was committing
the crime of stalking. In Raibley the police first investigated (interviewing employees
and running the license plate of the suspect’s truck) before confronting him. That
investigation heightened their suspicion, but in this case even the initial suspicion that
had prompted the police dispatch had largely been dispelled by the time Martin and
Kappel searched Catledge’s car. They knew that Catledge’s camera was broken
(McKnight already had confirmed that the camera did not work, and although Martin
and Kappel do not deny that this information actually was known to them as well,
McKnight’s knowledge was imputed to all of his colleagues at the scene, see United
States v. Whitaker, 546 F.3d 902, 905 (7th Cir. 2008); United States v. Sawyer, 224 F.3d 675,
680 (7th Cir. 2000)), so all Martin and Kappel could surmise is that Catledge had been
sitting in his car on a corner, pointing his broken camera at passersby or skyward,
2 In Illinois, as relevant to this case, a person commits disorderly conduct when
he or she knowingly “[d]oes any act in such unreasonable manner as to alarm or disturb
another and to provoke a breach of the peace.” 720 ILCS 5/26-1(a)(1).

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neither of which would have been unlawful even if the camera worked. The defendants
insist that Catledge’s “strange story” that he was pointing his camera toward a
helicopter “made Catledge’s conduct more suspicious,” but they do not explain how
that explanation increased their suspicion that he was stalking women rather than
simply paranoid but clearly harmless.
In Raibley we discussed how the information known to the police lined up with
the statutory elements of § 5/12-7.3, see 243 F.3d at 1074–75, but Martin and Kappel, in
contrast, have ignored those elements almost entirely. And, viewing the evidence in the
light most favorable to Catledge, the two officers could not reasonably have seen any
correlation between the information known to them and § 5/12-7.3. For one thing, the
spin in the affidavit from the City employee, who lacked personal knowledge and could
not do more than recite the literal words of the 911 operator’s summary, greatly
exaggerates the content of that summary. It might be that the 911 caller or the operator
could testify that Catledge had been taping the caller or that he had been videotaping at
that location multiple times, but the summary―the only admissible evidence on
point―cannot be read to say either. Similarly, it is possible that the dispatcher
broadcast more than what is in the summary or that the responding officers
misinterpreted what they heard, but at summary judgment Martin and Kappel chose to
remain silent and offered no admissible evidence from the dispatcher. A jury would not
be required to accept the defendants’ spin, and nothing in the 911 call summary
suggests that Catledge had been outside of the woman’s “school, place of employment,
vehicle, other place occupied by the person, or residence” on even one occasion, much
less multiple occasions. 720 ILCS 5/12-7.3. Likewise, the evidence submitted by the
defendants created a material dispute about the 911 caller’s state of mind, another
element of § 5/12-7.3. Although in his affidavit McKnight avers that the dispatcher told
him that the 911 caller had said “she felt in fear of her safety,” the call log―the only
evidence offered by the defendants of the information received by the 911 operator and
passed along to the dispatcher―flatly contradicts McKnight’s testimony. Faced with
competing evidence, a jury reasonably could disbelieve McKnight’s after-the-fact
recollection in favor of the police department’s contemporaneous business record.
These weaknesses in Martin and Kappel’s argument about stalking carry over to
their argument about disorderly conduct. The defendants do not explain how the
events transpiring after Catledge was detained could support a finding of probable
cause that he had committed the offense of disorderly conduct, allowing them to search
for “evidence” of that offense. Here the defendants rely upon our decision in Reher,
where we recognized that, under Illinois law, “videotaping other people, when

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accompanied by other suspicious circumstances, may constitute disorderly conduct.”
656 F.3d at 776. But Martin and Kappel ignore our preface for that conclusion. We could
not have been clearer in stating that “[v]ideotaping other people in public, while
potentially intrusive, is not illegal in Illinois.” Id. What the officers knew in this case is
that a man parked on a public street apparently was using a video camera to record
women on the street―conduct that might have annoyed the 911 caller and others but
which the officers would have known to be entirely lawful. And once they knew that
Catledge’s camera was broken, the defendants also knew he could not have been
filming anyone, so any suspicion that he was engaged in some vague form of disorderly
conduct had dissipated.
What Martin and Kappel have not done is point to the kinds of “suspicious
circumstances” that could elevate the lawful, public use of a video camera into a crime,
or even probable cause to believe that a crime had been committed. In Reher, the
plaintiff had been in sight of his teenage daughter when the girl’s mother ran up to him
yelling that he was “not supposed to be there.” 656 F.3d at 774. The plaintiff and the
woman had ended their relationship soon after their daughter was born, and when the
woman saw him pick up his camera and begin filming as she approached, she grabbed
the camera and threw it to the ground. Id. Other parents, who previously had seen the
plaintiff in the park, watched the unfolding commotion without realizing that the
arguing couple had been involved years earlier. Id. Word quickly spread among the
20 to 25 visibly upset residents in the park that a “perve” was videotaping children, and
the police were called. Id. One mother said that she had seen the plaintiff in the park
multiple times. Id. His former girlfriend accused him of taping their daughter and other
children. Id. And most significantly, one of the officers knew about the couple’s past
relationship, which included allegations that he had “kept her under surveillance,”
distributed nude photos of her, threw a rock through her window, and violated orders
of protection. Id. at 775. Based on the officer’s prior knowledge of the couple’s
tumultuous relationship, along with the crowd’s accusations that the plaintiff had been
videotaping their children, we concluded that the officer reasonably would have
believed the plaintiff was harassing his former girlfriend, which could constitute
disorderly conduct. Id. at 777.
In contrast, Martin and Kappel had no information available to them like the
circumstances in Reher. They could have talked to the 911 caller but did not, and they
did not have reason to question Catledge’s statement that he had not been filming
women. Moreover, after talking to Catledge, the defendants knew that he had not been
harassing the 911 caller, cf. People v. Davis 413 N.E.2d 413, 416 (Ill. 1980), and instead

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was focused on scaring away the helicopter. The caller’s annoyance is irrelevant;
whether conduct amounts to a breach of the peace―an element of disorderly conduct,
see Reher, 656 F.3d at 775―it is not “measured by its effect upon those who are
inordinately timorous.” People v. Raby, 240 N.E.2d 595, 598 (Ill. 1968). As we explained
in Reher, “the neighbors’ agitation, alone, did not give the officers probable cause to
arrest.” 656 F.3d at 776. Without probable cause at this point in the encounter, Martin
and Kappel should have released Catledge, not searched his car. See United States v. Leo,
792 F.3d 742, 751 (7th Cir. 2015) (explaining that police must end a Terry detention if
their suspicions have been dispelled or if they have not been able to develop probable
cause within a reasonable period).
That probable cause was so lacking in this case―at least if the evidence is viewed
in the light most favorable to Catledge―also forecloses the defendants’ reliance on their
defense of qualified immunity. On this question we disagree with the district court. A
police officer loses the shield of qualified immunity if the facts, viewed in the light most
favorable to the plaintiff, demonstrate that the officer’s conduct constituted a violation
of a clearly established constitutional right. Doe v. Vill. of Arlington Heights, 782 F.3d 911,
915 (7th Cir. 2015); Lunini v. Grayeb, 395 F.3d 761, 769 (7th Cir. 2005). The constitutional
right to be free from unreasonable searches, including being free from searches of one’s
vehicle if the police lack probable cause to conclude that it contains evidence of a crime,
has been long established. And on this record a jury readily could conclude that Martin
and Kappel, who have yet to offer their version of events, knew that they did not have
probable cause to believe that Catledge had engaged in stalking or disorderly conduct.
Instead a jury could find that the officers searched Catledge’s car knowing full well that
he had done nothing more than pretend to be engaged in lawful use of a video camera
on a public street.
The officers argue that they have qualified immunity because there wasn’t yet a
clear interpretation of the Illinois disorderly conduct statute. Again, they base this
argument on Reher’s statement that it was unclear what type of “other suspicious
circumstances” would push “mere videotaping” over the line into disorderly conduct.
656 F.3d at 776. But as we just explained, the officers have not identified any suspicious
circumstances, so it is irrelevant that ambiguity may exist regarding the kinds of
suspicious circumstances that might suggest disorderly conduct. And as we have noted
repeatedly, after the Terry investigatory stop, the officers knew that Catledge was not
engaged in videotaping at all.

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The grant of summary judgment on Catledge’s claim that defendants Martin and
Kappel searched his car in violation of the Fourth Amendment is VACATED, and that
claim is REMANDED to the district court for trial. In all other respects, the judgment is
AFFIRMED.

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