Shannon McComas v. Edward Brickley

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2138
SHANNON MCCOMAS,
Plaintiff-Appellee,
v.
EDWARD BRICKLEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:09-cv-01540-SEB-MJD—Sarah Evans Barker, Judge.
ARGUED OCTOBER 17, 2011—DECIDED MARCH 13, 2012
Before BAUER, POSNER and WOOD, Circuit Judges.
BAUER, Circuit Judge. The plaintiff-appellee, Shan-
non McComas, was arrested by the defendant-appellant,
Edward Brickley, for murder and for assisting a criminal
in the state of Indiana. State prosecutors formally
charged McComas only with assisting a criminal and
false informing. These charges were later dropped.
McComas then brought suit in federal court against
Brickley for false arrest under 42 U.S.C. § 1983. Brickley

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2 No. 11-2138
moved for summary judgment in the district court,
arguing that he had probable cause for the arrest and
that he is protected by qualified immunity. The court
denied his motion. Finding error in the court’s qualified
immunity determination, we reverse.
I. BACKGROUND
The events underlying this § 1983 suit for false arrest
took place during a 2007 New Year’s Eve celebration
at Durty Nelly’s Pub & Eatery, an Indianapolis bar.
McComas was, at the time, an Indianapolis police officer,
and his wife was the manager of the bar. McComas was
off-duty on New Year’s Eve and attended the party at
Durty Nelly’s. The night progressed without major inci-
dent until, at around 3:00 a.m. on New Year’s Day, a
fight broke out. Surveillance cameras located throughout
the bar captured a chaotic series of events that cul-
minated in a shooting just outside of Durty Nelly’s
front entrance. Several patrons were wounded and a
security guard, Ronnie Croom, was killed.
The defendant-appellant, Detective Edward Brickley
of the Indianapolis police force, responded to a call
for help. He investigated the scene of the shooting
and questioned several witnesses, although he did
not interview McComas at that time. In the days that
followed, Brickley discovered a handgun stashed in
a pillowcase on Durty Nelly’s premises, and he gained
full access to the bar’s surveillance videos.
Interviews with various witnesses pointed to Sununguro
Runsununkuko (nicknamed “Go-Go”) as the primary

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No. 11-2138 3
Prosecutors would later drop murder charges against Go-Go. 1
culprit in Croom’s murder. Go-Go was a member of the1
security team hired by the bar for the party that night.
Brickley examined the surveillance videos, which
showed Go-Go using a taser on patrons during the
initial outbreak of the fight. Minutes later, McComas is
captured on the cameras walking alone to the back of
the bar, through the kitchen and toward the bar’s office.
When he reappears, he is carrying an object in his hand.
Moments later, near the bar’s front entrance, Go-Go can
be seen tasing another group of people. Go-Go eventually
walks outside, where he remains during the period of
time that the shots were fired. When Go-Go returns to
the bar, he hands off an object to another person,
Ramirez Hayes, who also worked security that night.
Minutes later, Hayes makes his way through the
kitchen and to the office in the back of the bar. When
interviewed by Brickley, Ramirez stated that the object
he received from Go-Go was a .40 caliber Smith &
Wesson, the same type of gun Brickley recovered
from the scene. After the shots were fired outside and
during the ensuing chaos, McComas was stationed
near the front door, discharging a taser on at least two
occasions in an apparent attempt at crowd control.
In the course of his investigation, Brickley spoke twice
to Norman Broaden, the promoter of Durty Nelly’s
New Year’s Eve party. Broaden claimed to have spoken
with McComas after police arrived at the scene and
intimated that McComas also spoke with Go-Go at

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4 No. 11-2138
some point after the shooting. It was only after inter-
viewing several witnesses (including Hayes and
Broaden), recovering the gun, and studying the surveil-
lance footage that Brickley met with McComas to
take his statement. This statement proved critical
to McComas’s subsequent arrest. McComas initially
made several denials. First, he denied being aware of any
altercation in the bar that night until he noticed an
injured man lying on the floor near the bar’s front door.
He also claimed that at approximately 3:00 or 3:15 a.m.,
he accompanied a patron to the back of the bar to
retrieve her coat from the bar’s office. Next, he explicitly
denied speaking to anyone directly about the incident
during the aftermath, including Go-Go. He admitted
to carrying a taser at times, but claimed that he did not
use it that night and reiterated that he “was in the back”
and so did not see any fighting. Finally, he denied
having any access to a gun that night.
Brickley had gathered enough information to have
formed a relatively well-developed theory of what hap-
pened that night, and felt that McComas’s story did not
add up. So he challenged McComas’s version of events:
“I want you to understand that I’ve seen the video, the
entire video, the whole evening. . . . You’re pretty easy
to pick out of that thing . . . what you have on is very
identifiable in that surveillance video.” McComas
changed his tack almost immediately. For the first time
in the interview, he mentioned that he was drinking
that night. He then claimed to have a fuzzy memory
about whether he actually saw an altercation and
whether he used a taser. Brickley insisted that footage

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No. 11-2138 5
on the surveillance video shortly after 3:00 a.m. shows
McComas walking away from the bar’s back office with
a gun in his hand. McComas replied, “No, I am not car-
rying a handgun. I’m carrying my taser.” When con-
tinually pressed by Brickley, he admitted that he
might have used Go-Go’s taser at some point in the
night, although he continued to adamantly deny
having access to a gun.
Shortly after the interview, McComas was arrested
for murder and for assisting a criminal. Prosecutors
pursued charges of assisting a criminal and false inform-
ing, but later dropped even those charges, and McComas
filed an action for false arrest against Brickley under
42 U.S.C. § 1983.
II. DISCUSSION
The district court denied Brickley’s motion for
summary judgment, finding that a genuine factual
dispute existed as to whether Brickley’s actions were
protected by the existence of probable cause. The
district court denied a motion for qualified immunity
by Brickley. Brickley appeals the denial of qualified
immunity.
A. Appellate Jurisdiction
At the outset, we address a jurisdictional issue. Al-
though typically we cannot review denials of summary
judgment, the Supreme Court has carved out an

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6 No. 11-2138
exception for pre-trial determinations on the issue of
qualified immunity, allowing courts of appeals to
review them as final judgments under 28 U.S.C. § 1291.
Mitchell v. Forsyth, 472 U.S. 511, 525 (1985); Sallenger
v. Oakes, 473 F.3d 731, 738 (7th Cir. 2007). Our juris-
diction over these matters is limited, however, to review
of issues of law. Johnson v. Jones, 515 U.S. 304, 313
(1995); Sallenger, 473 F.3d at 738.
The district court relied on our decisions in Chelios v.
Heavener and Clash v. Beatty when it held that factual
disputes prevented the application of qualified im-
munity at the summary-judgment stage. Chelios, 520
F.3d 678 (7th Cir. 2008); Clash, 77 F.3d 1045 (7th Cir.
1996). Clash and Chelios both involved factually inten-
sive questions of whether officers employed excessive
force. This case is different. There are admittedly
many factual disputes between the parties, but none
are relevant to whether or not qualified immunity ap-
plies. In resolving the issue, we take as given any
facts that the district court may have assumed when
it denied summary judgment. See Leaf v. Shelnutt, 400
F.3d 1070, 1078 (7th Cir. 2005) (citations omitted).
B. Relevant Standards
Determining whether qualified immunity applies to
the actions of a public official involves a two-part
inquiry: (1) whether the facts alleged, taken in the light
most favorable to the plaintiff, amount to a constitu-
tional violation; and (2) whether the constitutional right

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No. 11-2138 7
at issue was clearly established at the time of the alleged
violation. Jones v. Clark, 630 F.3d 677, 680 (7th Cir. 2011).
We may address these questions in any order. Pearson
v. Callahan, 555 U.S. 223, 236-42 (2009). Here, we need
only answer the second question to determine that
Brickley is entitled to qualified immunity.
To determine if a right was clearly established at the
time of an alleged violation, we look at “whether it
would be clear to a reasonable official that his or her
conduct was unlawful in the situation.” Carvajal v.
Dominguez, 542 F.3d 561, 566 (7th Cir. 2008); Humphrey
v. Staszak, 148 F.3d 719, 725 (7th Cir. 1998). In the context
of a wrongful arrest, the question turns on whether the
arresting officer had “arguable probable cause.” Jones,
630 F.3d at 684. Arguable probable cause exists when
a reasonable officer could mistakenly have believed that
he had probable cause to make the arrest. Id.
We review de novo the denial of a motion for summary
judgment on qualified immunity grounds, keeping in
mind that we must adopt the facts as the district court
construed them. Carvajal, 542 F.3d at 566.
McComas was arrested on suspicion of committing
two crimes: murder and assisting a criminal. Murder is
defined by Indiana law, in relevant part, as follows: “A
person who knowingly or intentionally kills another
human being . . . commits murder, a felony.” IND.
CODE § 35-42-1-1 (2012). It is unclear how prosecutors
initially believed they had grounds on which to charge
McComas with murder, even under a theory of ac-
complice liability. Even if McComas had provided a gun

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8 No. 11-2138
to Go-Go, and Go-Go had used that gun later to shoot
at patrons outside, it is an enormous stretch to infer
that McComas provided the gun intending to aid Go-Go
in killing Croom. There is simply not enough evidence in
the record to support even arguable probable cause
for an arrest on this charge.
But the absence of arguable probable cause for murder
does not preclude judgment in favor of Brickley. The
existence of arguable probable cause for either charge
is enough to bar liability for false arrest under § 1983.
See Pourghoraishi v. Flying J., Inc., 449 F.3d 751, 762 (7th
Cir. 2006).
So we turn to the other charge at the time of
McComas’s arrest; the charge of assisting a criminal. It
is defined under Indiana law in relevant part as follows:
“A person who . . . with intent to hinder the apprehen-
sion or punishment of the other person, harbors, con-
ceals, or otherwise assists the person commits assisting
a criminal.” IND. CODE § 35-44-3-2 (2012). The district
court believed that it would be forced to make impermis-
sible credibility determinations in order to decide
whether arguable probable cause had existed for this
charge. Therefore, it concluded, the case must be re-
solved through a trial. Even under the district court’s
interpretation of the facts, we disagree.
The district court focused on the fact that the object
in McComas’s hand as he is leaving the bar’s office and
walking through the kitchen is unidentifiable. Accepting
this, it still does not render unreasonable a conclu-
sion that McComas was assisting a criminal. This is

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No. 11-2138 9
especially true given the suspicious quality of
McComas’s statement immediately prior to his arrest.
At best, McComas gave an unclear and hazy account
of what happened that night. At worst, he lied. He
initially claimed not to have seen any altercation and
that he became aware of a shooting only when a body
was dragged into the bar. He further claimed that he
did not use a taser that night. He also told a story about
helping a woman to the back office to retrieve her coat.
None of these things jibed with what was clear in the
surveillance footage, which showed that McComas
was directly involved in at least part of an altercation
inside the bar and that he used a taser on a group of
patrons. It further shows that at around 3:00 a.m., he
was walking out of the back office not with a coat, but
with a smaller, unidentifiable object in his hand.
Only when Brickley revealed to McComas that the
surviellance video contradicted his story did McComas
change that story. Under these circumstances, it was
certainly not unreasonable for Brickley to conclude he
had been lied to. Lying to the police is a bad idea, in part
because it creates the impression that the liar has some-
thing to hide. This applied especially to McComas, who
as a former police officer can reasonably be expected to
know the consequences of lying to the police in the
course of a murder investigation. Indeed, Brickley’s
suspicion of McComas’s evasiveness is revealed in ex-
changes like this one:
McComas: “I’m not afraid of the police. I am the
police.”

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10 No. 11-2138
Brickley: “I understand that. That’s why I’m
having such a problem.”
In this case, McComas’s shifting narrative raised the
possibility that he was somehow covering for the
supposed shooter, Go-Go. The undisputed facts show
that both McComas and Go-Go had been involved in the
altercation after the fighting broke out, and at some
point in the night, a taser found its way into McComas’s
hands. Furthermore, Broaden informed Brickley that he
saw Go-Go and McComas talking after the shooting
occurred, despite McComas’s protestations that he had
no conversation with Go-Go that night. It is not
important whether such a conversation actually hap-
pened; it is enough to note that Brickley had reason
to believe it did, and reason to distrust McComas’s
account of events.
We stress that the reasonableness of the arrest does not
turn on the plausibility of Brickley’s theory about the
gun. Indiana law is clear that the crime of assisting a
criminal is “obviously intended to cover the situation
where a person did not actively participate in the crime
itself, but after the commission of the crime aided the
criminal.” Smith v. State, 429 N.E.2d 956, 959 (Ind. 1982),
overruled in part by Wright v. State, 690 N.E.2d 1098,
1109 (Ind. 1997).
So the important question is whether there was
arguable probable cause for the arrest in light of
McComas’s troubled interview and the way it con-
tradicted the surveillance footage. Considering the
totality of the undisputed facts, we find that arresting

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No. 11-2138 11
McComas was reasonable. See Wheeler v. Lawson, 539 F.3d
629, 639 (7th Cir. 2008) (“Qualified immunity protects
those officers who make a reasonable error in deter-
mining whether there is probable cause to arrest an
individual.”). Because there was arguable probable
cause on these facts, Brickley is protected by qualified
immunity from an action for false arrest.
C. False Informing
McComas was also charged with false informing, but
the charge wasn’t brought by prosecutors until some
time after his initial arrest. The charge is relevant to
McComas’s false arrest claim, however, because “an
arrest is reasonable under the Fourth Amendment so
long as there is probable cause to believe that some crimi-
nal offense has been or is being committed, even if it is
not the crime with which the officers initially charge
the suspect.” Jackson v. Parker, 627 F.3d 634, 638-39 (7th
Cir. 2010) (quoting Fox v. Hayes, 600 F.3d 819, 837 (7th Cir.
2010)). Thus, if there was arguable probable cause for
an arrest for false informing, Brickley would be entitled
to qualified immunity on this ground also.
We need not dwell on this analysis since the facts
underlying the charge of false informing are so closely
related to the facts discussed above. Indiana defines
the crime as giving “a false report of the commission of
a crime or . . . false information in the official investiga-
tion of the commission of a crime, knowing the report
or information to be false.” IND. CODE § 35-44-2-2(d). As
we have already noted, the narrative that McComas

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12 No. 11-2138
initially supplied of his involvement in the events that
night at Durty Nelly’s was plainly contradicted by the
footage on the surveillance videos. When Brickley chal-
lenged the narrative on the basis of those videos, only
then did the story change. In short, there was arguable
probable cause for an arrest immediately following
McComas’s interview for the charge of false informing.
III. CONCLUSION
For the reasons discussed above, we REVERSE the
district court’s denial of summary judgment on the
issue of qualified immunity and REMAND with instruc-
tions consistent with this opinion.
3-13-12

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