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.

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ARGUED DECEMBER 8, 2006—DECIDED MAY 21, 2007

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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 defendants removed the cases to the federal court. The district

court entered summary judgment in favor of the defendants 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 summary 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 motorcycle 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 endorsement.

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 associated with that assault. Myers and the other officer eventually 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 reconstruction 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 judgment. 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 record 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 governmental 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 Amendment 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 undeveloped arguments, and arguments that are unsupported by

pertinent authority, are waived (even where those arguments raise constitutional issues).”). However, the question 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 argument presented to us on appeal.

The district court concluded that the allegation that

Myers had struck the motorcycle was “unsupported speculation.” 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 dangerously 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 appellants’ 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 parties’ 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 overcome the fact that the plaintiffs have provided no evidence

that any seizure within the meaning of the Fourth Amendment 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 judgment 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 conscience 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 “catand-mouse” aspect to the events that immediately preceded 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 highspeed 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 pursuit once the driver has been identified and that Myers

should have weighed the risks associated with the pursuit 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-shocking 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 government 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 questions that implicate the Constitution. Various sections

of the pursuit manual are quoted by both sides to support

arguments about whether Myers complied with department 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 comply with department regulations raised a genuine issue

of material fact as to whether the behavior was deliberately 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’ strongest 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 conducted the pursuit at speeds upwards of 130 miles per

hour within one to three car lengths of the fleeing motorcycle. 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 legitimate 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 confrontation 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 conscienceshocking 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 judgment 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