Antoinette Wonsey v. City of Chicago

                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 19-1171
ANTOINETTE WONSEY,
                                                  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. 1:16-cv-09936 — Sara L. Ellis, Judge.
                     ____________________

  ARGUED SEPTEMBER 16, 2019 — DECIDED OCTOBER 15, 2019
                ____________________

   Before BAUER, BRENNAN, and ST. EVE, Circuit Judges.
   BRENNAN, Circuit Judge. Antoinette Wonsey’s Chicago
home attracted two types of visitors: tourists and police. The
tourists came for short-term lodging, which Wonsey sublet
through Airbnb. The police first came after an Airbnb guest
reported a theft at Wonsey’s home. Five days later, police
showed up again to help city examiners during a building in-
spection. Claiming these two police encounters amounted to
Fourth Amendment violations, Wonsey sued the City of
2                                                  No. 19-1171

Chicago and several police officers under 

.
The district court granted summary judgment to the defend-
ants. On appeal, Wonsey submits a bare explanation of the
police encounters, and she makes no effort to connect them
with a cognizable Fourth Amendment claim. Because Wonsey
fails to show any reason why the district court’s judgment
should be disturbed, we affirm.
                               I
    On June 4, 2016, an Airbnb guest of Wonsey’s reported to
police that his personal belongings, including cash and a lap-
top computer, disappeared after he lost consciousness from a
seizure. Chicago Police Sergeant Antonio Valentin drove to
Wonsey’s house to investigate and arrived at 8:30 a.m. The
front gate to Wonsey’s house was locked, and no one re-
sponded when Valentin rang the doorbell. He then attempted
to open the gate by reaching his arm around and trying to
open it from the inside. When that did not work, Valentin
called the police station and spoke with the theft victim, who
gave Valentin the entry code to unlock the gate.
    After opening the gate, Valentin went to the front door,
knocked, and rang the doorbell. Two men opened the door
and, as shown in Wonsey’s home security video footage, al-
lowed Valentin inside. Shortly after, another officer arrived to
assist. The officers saw residents scattered throughout the
first floor who appeared to have been sleeping in the living
room areas. As Valentin discussed the theft victim’s claim
with the residents, Wonsey, who had been asleep until that
point, entered the dining room and joined the conversation.
After Valentin asked Wonsey for permission to see where the
theft victim was staying, Wonsey refused and told the officers
to leave. The officers complied and Wonsey walked them
No. 19-1171                                                   3

outside. Although Valentin felt Wonsey acted “evasive,” he
described his conversation with her as “friendly” and “cor-
dial.” At no point during this encounter did the officers arrest
Wonsey, search her home, or tell her she was not free to leave.
    Five days later, on June 9, and prompted by a police re-
quest, the city’s buildings department sent out a team of in-
spectors to Wonsey’s house. They were accompanied by five
police officers. On arrival, the inspectors found Wonsey’s
front gate was locked, so they visually inspected the exterior
of her house where they saw a man sitting on Wonsey’s back
porch. The inspectors explained why they were there, and the
man opened the back gate to let them in. They entered,
walked to the front of the house, and met Wonsey, who will-
ingly allowed the inspectors into her home. Home security
video footage corroborated Wonsey’s grant of permission.
The police officers waited outside during the inspection.
    The inspectors recorded 32 code violations and concluded
the house should be immediately evacuated. Including Won-
sey, at least eight occupants were in the house that morning
and the inspection report speculated 12-18 occupants resided
there. Due to “dangerous conditions in the home,” the inspec-
tors asked the police to assist with “emergency evacuations.”
At that point the officers entered the house and stayed in the
common areas. As Wonsey explains it, the officers “sur-
rounded her” in the dining room. Defendants alleged Wonsey
was “irate,” “very ballistic,” “screaming,” and “yelling.” She
denies these characterizations. Wonsey agrees no police of-
ficer placed her in handcuffs or told her she was not free to
leave. She also admits she refused to leave despite being
asked to do so as part of the evacuation order.
4                                                      No. 19-1171

    Wonsey sued the city and some of the police officers under

 for the June 4 and June 9 encounters. She
claimed defendants’ actions violated her Fourth Amendment
right to be free from unreasonable searches and seizures. Af-
ter discovery defendants moved for summary judgment. On
Wonsey’s June 4 claims, defendants argued: (1) Valentin had
consent to enter Wonsey’s home to investigate the stolen
property report; and (2) Wonsey presented no evidence of a
Fourth Amendment seizure.1 On the June 9 claims defendants
contended the doctrine of qualified immunity shielded all the
officers’ actions that day. The district court agreed with de-
fendants across the board and granted summary judgment in
their favor. Wonsey appeals that decision.
                                 II
   “The purpose of an appeal is to evaluate the reasoning and
result reached by the district court.” Jaworski v. Master Hand
Contractors, Inc., 

 (7th Cir. 2018). A party ask-
ing this court to reverse a district court’s judgment must “ar-
gue why we should reverse that judgment” and “cite
appropriate authority to support that argument.” United
States v. Berkowitz, 

 (7th Cir. 1991). That
task starts with the appellant’s brief. See FED. R. APP. P. 28.
    Although appellate briefs should embrace brevity,
Wonsey’s initial brief is extraordinarily sparse. Critically, the
“argument” section, which runs only two and a half pages,
does not attempt to show how the district court erred. More
importantly, it never addresses her Fourth Amendment
claims. See, e.g., Sambrano v. Mabus, 

 (7th Cir.

1Wonsey sued only Valentin for the June 4 encounter. She did not name
Valentin’s backup officer as a defendant.
No. 19-1171                                                       5

2011) (censuring similarly deficient brief). Instead, almost all
the section is poached from a law review article about quali-
fied immunity that Wonsey’s counsel failed to cite. This was
not an instance of less than perfect citation, but rather copying
an academic work without any attribution. Even the article’s
footnotes appear as citations in the body of Wonsey’s brief.
And the real puzzler is that Wonsey does not explain how the
copied article pertains to her case, and she makes no attempt
to apply its reasoning.
    This is a highly problematic strategy by Wonsey’s counsel
given that arguments raised for the first time in a reply brief
are waived. United States v. Vitrano, 

 (7th Cir.
2014); United States v. Alhalabi, 

 (7th Cir. 2006).
The same goes for arguments not raised until oral argument.
See In re Dorner, 

 (7th Cir. 2003) (“Lawyers
must get these things straight before the briefing is complete;
otherwise the opposing party and the appellate judges must
traverse the same ground twice.”). Pretermitting whether this
meager effort constitutes forfeiture of Wonsey’s appeal, see
Klein v. O’Brien, 

 (7th Cir. 2018), we proceed
as best we can on the merits with what little was offered.
                                III
   We review a district court’s grant of a motion for summary
judgment de novo, interpreting all facts and drawing all rea-
sonable inferences in favor of the nonmoving party. Dayton v.
Oakton Cmty. Coll., 

 (7th Cir. 2018). Because
Wonsey brought her claims under 42 U.S.C § 1983, to survive
summary judgment, she must present sufficient evidence to
create a genuine dispute of material fact that a constitutional
deprivation occurred. Homoky v. Ogden, 

 (7th
Cir. 2016).
6                                                  No. 19-1171

                               A
    We start with Wonsey’s June 4 unlawful search and sei-
zure claims. The Fourth Amendment generally prohibits the
warrantless entry of a person’s home to perform a search or
seizure. See Brigham City v. Stuart, 

 (2006)
(“[S]earches and seizures inside a home without a warrant are
presumptively unreasonable.”); Illinois v. Rodriguez, 

 (1990). But the prohibition does not apply when vol-
untary consent has been obtained, either from the individual
whose property is searched, or from a third party who pos-
sesses common authority over the premises. Rodriguez, 

. When a person allows a third party to exercise au-
thority over his property, he assumes the risk that the third
party might permit access to others, including government
agents. United States v. Terry, 

 (7th Cir.
2019) (citations omitted). In a § 1983 case, once the defendant
presents evidence that the plaintiff consented to the search,
the burden shifts to the plaintiff to establish the lack of con-
sent to search. Valance v. Wisel, 

 (7th Cir.
1997).
    Here, defendants presented two pieces of evidence show-
ing Wonsey’s guests gave their consent to enter Wonsey’s
house. First, Wonsey’s Airbnb guest gave Valentin the gate
code to enter the front patio and investigate the alleged theft.
Wonsey agrees she gave her gate code to Airbnb guests to use
freely. Second, when Valentin arrived at the front door, he
rang the doorbell, and two men answered. After Valentin
identified himself and explained why he was there, the two
men allowed Valentin inside. Wonsey’s security video shows
this. Because defendants presented evidence of consent, the
No. 19-1171                                                             7

burden shifts back to Wonsey to show Valentin never ob-
tained consent or the consent was invalid.
    Wonsey fails to rebut that evidence, let alone address the
issue of consent. Instead, she offers only a conclusion that
“admissible evidence shows a genuine dispute as to a mate-
rial issue of fact.” But Wonsey never cites to the record or any
fact in dispute to support this assertion. She also says a district
court “should not decide … who is lying or telling the
truth … on a motion for summary judgment.” It is true that
“[a] trial, not summary judgment, is the way to determine
who is telling the truth.” Owens v. Chicago Bd. of Educ., 

 (7th Cir. 2017). But Wonsey does not explain
which witness is “lying,” what fact they are lying about, or
which claims are implicated by the purported lies. Without
evidence to contradict defendants’ proof of consent, Wonsey
cannot show Valentin’s entry constituted an unreasonable
search.2
    Wonsey’s unlawful seizure claim also fails. A Fourth
Amendment seizure occurs “when there is a governmental
termination of freedom of movement through means inten-
tionally applied.” Swanigan v. City of Chicago, 

(7th Cir. 2018) (quoting Scott v. Harris, 

, 381


2 Before the district court, Wonsey alleged “Valentin opened the front
gate, walked up to the front door, rang the doorbell, knocked on the win-
dow or door, and entered in the property, all in approximately 19 sec-
onds.” She claimed that was not enough time for Valentin to obtain
consent to enter. After reviewing the security footage, the district court
disagreed and found “there was plenty of time for Valentin to introduce
himself and obtain consent.” At any rate, Wonsey neither raises this argu-
ment on appeal nor submits any argument that the court erred in its find-
ing.
8                                                    No. 19-1171

(2007)). But Wonsey never explains when that moment oc-
curred here. And she agrees the officers left immediately after
she asked them to leave. Given those circumstances, with no
additional facts to indicate that Wonsey did not feel free to go
about her business, there is no genuine issue of material fact
as to whether the officers “seized” Wonsey on June 4.
                                B
    The district court rejected Wonsey’s June 9 search and sei-
zure claims based on qualified immunity. To challenge that
decision, Wonsey’s counsel lifted content from a law review
article which suggests qualified immunity makes govern-
ments less accountable. From that premise, Wonsey boldly
proposes this court should scrap the doctrine of qualified im-
munity. The Supreme Court, however, continues to apply the
doctrine and recently reiterated its “settled principles.” City of
Escondido, Cal. v. Emmons, 

 (2019) (per cu-
riam). Wonsey’s request effectively asks us to ignore the
structure of Article III courts and follow the lead of unnamed
“federal courts scholars.”
    We pass on Wonsey’s proposal and follow the Supreme
Court. “Qualified immunity attaches when an official’s con-
duct does not violate clearly established statutory or constitu-
tional rights of which a reasonable person would have
known.” 

 (citations omitted). For a right to be clearly estab-
lished, “existing precedent must have placed the statutory or
constitutional question beyond debate.” Mullenix v. Luna, 

 (2015) (citation omitted). “Put simply, qualified
immunity protects all but the plainly incompetent or those
who knowingly violate the law.” 

 (citation and internal
quotation marks omitted). Under this standard, we “focus[]
on the objective legal reasonableness of an official’s acts.”
No. 19-1171                                                       9

Harlow v. Fitzgerald, 

 (1982). Thus, defendants
here enjoy qualified immunity “if a reasonable officer could
have believed,” Hunter v. Bryant, 

 (1991) (per
curiam), that the officers’ entry into Wonsey’s home on June
9 was constitutional.
    Construing the facts in Wonsey’s favor, see Dayton, 

, we assume her version of events on June 9. After
Wonsey allowed the building inspectors into her home, they
recorded 32 code violations and concluded the house was un-
safe for occupancy. Due to those “dangerous conditions,” the
inspectors ordered all occupants to evacuate immediately and
asked police officers onsite to help with the evacuation. The
officers obliged and, according to Wonsey, “surrounded her”
in the dining room and told her to leave the house.3 Wonsey
acknowledges, however, the officers entered her home “due
to safety concerns.” And she does not dispute that police: (1)
relied on the inspectors’ representations that the building was
a danger to its occupants and the public; (2) took the inspec-
tors’ findings seriously; and (3) acted consistent with the in-
tent to carry out the evacuation order. Likewise, she does not
allege police searched any part of her home during the evac-
uation.
    Because Wonsey does not tell us which facts she believes
amounted to Fourth Amendment violations, we can only pre-
sume the officers’ entry to help with the evacuation prompts
her illegal search claim, and “surrounding her” prompts her
illegal seizure claim. In any event, those claims fail. Wonsey
does not dispute police entered her house at the request of


3We also assume Wonsey was not “irate,” “ballistic,” “screaming” and
“yelling” at defendants, which defendants allege and she denies.
10                                                 No. 19-1171

inspectors, who were lawfully present, to help with an evac-
uation given an immediate safety concern. Under those
circumstances, a reasonable officer could have believed that
entry was lawful. Wonsey offers no contrary argument, and
she does not point to any violation of statutory or constitu-
tional rights, much less clearly established ones. So qualified
immunity cloaks defendants’ actions on June 9.
    One final issue warrants discussion. Circuit Rule 30(a) re-
quires an appellant to include, “bound with the main brief, an
appendix containing the judgment or order under review and
any opinion, memorandum of decision” or other equivalent
statement of reasons. Rule 30(d) requires counsel to certify
compliance with Rule 30(a). Wonsey’s counsel included a
Rule 30(d) certificate, but failed to include a copy of the
district court’s judgment (although counsel did include a
copy of the district court’s opinion). Under FED. R. CIV. P. 58,
the judgment is distinct from the opinion, see Klein, 

, and for the Rule 30(d) certificate to be true, the judg-
ment must have been included. This court does not take coun-
sel’s omission and misrepresentation lightly. See United States
v. Boliaux, 

 (7th Cir. 2019) (requiring counsel
to show cause why he should not be fined $1,600, and repri-
manded for his false statement under Circuit Rule 30(d));
United States v. Patridge, 

 (7th Cir. 2007)
(“This court regularly fines lawyers who violate Circuit Rule
30 yet falsely certify compliance under Circuit Rule 30(d).”).
Counsel is strongly admonished to observe all court rules in
the future.
                              IV
   Wonsey’s arguments on appeal are best summed up as
unsupported, careless, and irrelevant. Above all, they fail to
No. 19-1171                                          11

show an issue of material fact to preclude summary judg-
ment. For these reasons, we AFFIRM.