### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 14

- 1867
E STATE OF A DAM B ROWN , Plaintiff

- Appell ant ,

v.

T IMOTHY T HOMAS , M ATTHEW S ECOR , and B ROWN C OUNTY , Defendant s

- Appell ees

.

____________________ Appeal from t he United States District Court for the Eastern District of Wisconsin

. No. 1: 12

- cv

- 0 1202

- WCG

— William C . Griesbach , Chief Judge

.

____________________
A RGUED O CTOBER 3, 2014

— D ECIDED N OVEMBER 13, 2014

____________________

Before P OSNER , R OVNER , and T INDER , Circuit Judges

. P OSNER , Circuit Judge

. Adam Brown, age 22, was at home with two friends in his ground

- floor apartment in Green Bay, Wisconsin at 6:20 p.m. on a December evening , when there was a sudden knocking on his door and a yell of “ p olice, search warrant!” A s the police began to force open the front door when no occupant opened it, Brown ran u p stairs to his be d room and grabbed an unloaded shotgun that he kept there. Police fo l lowed. As they reached the top of the2 No. 14

- 1867

stairs they saw him standing in a corner of th e be d room pointing the shotgun at them. One of the officers, d e fendant Secor, shot Brown dead with an automatic rifle , pr e cipitating this suit under 42 U.S.C. § 1983 against Secor , a n other officer in the search party (Thomas , who has, however, since been d i s missed from the case ) , and their employer, Brown Cou nty. The district court granted summary jud g ment in favor of the defendants, precipitating this a p peal by Brown’s estate. Secor had no way of knowing that the shotgun was u nloaded. H ad it been loaded wi th buckshot a single shot at so close a range would have been fatal . The estate contends not that Secor shouldn’t have pulled the trigger when he saw a shotgun was pointed at him but that the police search was executed in an unreasonable manner (see, e.g., Terebes i v. Torreso , 764 F.3d 217, 233

– 36 and n. 16 (2d Cir. 2014) ; cf. Pe t kus v. Richland County , 767 F.3d 647, 650

– 52 (7th Cir. 2014) ) , violating the Fourth Amendment and causing Secor mista k enly to think he had to kill Brown in self

- defense. According to the e state’s version of events, when Brown peered out of his front window in response to the knocking and the shout he found himself fac e to face with a man

— it

was Officer Secor

— holding an automatic rifle, dressed in dark civilian clothes , with long hai r, earrings, a goatee, and sideburns, and wea r ing a hoodie and a baseball cap. Brown turned away from the window , yelled “What the fuck ... we are ge t ting robbed again” (recently the apartment had been robbed by a pe r son pretending to be an acquaintance) , an d fled upstairs. One of Brown’s friends yelled to him “Get the shotty!” as Brown streaked to the back of the apartment and up the stairs to his bedroom (the apartment was a d u plex). Within seconds the police broke down the front door andNo. 14

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entered

— five in al l , two others having gone a round to the back of the house to stop a n yone from leaving by the rear door

. The officers had a valid search warrant; there was pro b able cause to believe that a burglar had hidden stolen pro p e rty in Brown’s apartment. The C ounty ’s practice is for a l most all searches to be executed by a drug task force trained in SWAT tactics and therefore hea v ily armed. In order to be sure that the search will indeed be of the building specified in the warrant, the team dispatches undercover offi cers to find the building and lead the team into it. Secor was one of the undercover officer s , which was why he was accoutered as he was. The only indication that he was a police o f ficer rather than a criminal was a badge he was wearing around his neck, an d it’s u n clear whether Brown could have seen the badge in the dark when he looked through his wi n dow to see who was outside shouting

. The officer standing b ehind S e cor was wearing a jacket that said “police,” as well as a badge , but was otherwise dressed i n civilian clothes like S e cor. T he other three officers in the group that entered the apartment were wearing standard police uni forms but had been in the background , in darkness, when Brown peered

ou t side

. The e state’s case begins with the contention that the p olice had no need to conduct the search after dark (it is dark at 6 :20 p.m. in D e cember in Green Bay

— sun set was at 4:1 4 p.m. the day of the search )

. There was no urgency. It was not like the search of a stash house , which might co n tain large quantitie s of drugs and money . T he police were looking for

some loot of modest value (a video game system, a co u ple of video games, and a few other small items ) plus the burglar4 No. 14

- 1867

who had stolen it , whom the police correctly believed to be in Brown’s apart ment

. Brown himself was not the suspect

. In these ci r cumstances, the e state argues , the search didn’t have to be co n ducted by a heavily armed SWAT team, let alone a team led by an u n dercover police officer who looked like an armed thug

. I t was especially dangerous , t he argument co ntinues , for him to be the first officer whom an occupant of the apartment would see, because home invasions by crim inals pretending to be police are apparently common , though

r e member that the previous break

- in to Brown’s apartment had been by someone pretending to be an acquain t ance r ather than a cop.
If the search was conducted in an unreasonable manner and therefore violated the Fourth Amendment

— more pr ecisely the principles of the Fourth Amendment, deemed a pplicable by interpretation of t he due process clause of the Fourteenth Amendment to state and local searches

— and Brown would not have been killed had the search been co nducted in a reasonable manner , then his estate has a valid claim against Officer Secor and maybe (as we’ll see) agains t Brown County as well.
The police had considered whether to conduct so forceful a search, and had decided to do so mainly because they thought that the burglar who had stashed the loot in the apartment was an escapee from jail , where he was serving time f or robbery , and might put up a struggle. (He didn’t.) The p o lice also had “word” that Brown and his girlfriend (who lived with him but was not in the house at the time ) were always in “ trouble

. ” What type of trouble was not fu rther specified but the fact t hat Brown turned out to possess illegal shotguns (he had two, only one of which he bra n-No. 14

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dished) suggests that their suspicion may have been just ified. The judge ruled that the search was reasonable , al though

n ighttime searches, especially of a residence (wh ich unlike a
store or an office building is likely to be occupied at night), are risky undertakings, and disfavored . Although there is a di f ference between a search late at night, when the residents are likely to be asleep, and a search in late afte r noon o r early evening , there doesn’t seem to have been a ny reason not to postpone the search of Brown’s apartment till daylight . I ndeed since it was dark and the police could not be clearly identified until they entered, the decision to search before daybreak se ems to have been foolish. The defendants say that the police were heavily armed because they anticipated several occupants, one a “ robber ” who had e s caped from jail and two others who were regarded as “ trouble. ” But the robber (the burglar) was not an esca pee in the traditional

sense . A participant in a work

- release program at the c ounty j ail , he had been authorized to go to work in the morning but required to return in the eve n ing

— which he’d failed to do at some point before the search took place

. T he def endants don’t argue that the police had to be hea v ily armed because the occupants might be armed ; they didn’t know about the shotguns in the apartment , or any other weapons . Putting the suspicious

- looking undercover officer at the front of the police team has not been explained

. True, the undercover officer is the member of the team who knows the address and is therefore least likely to knock on the wrong door, cf. Balthazar v. City of Ch i cago , 735 F.3d 634 (7th Cir. 2013) , but Secor could have told one of the officers with him “that’ s the door, ” and having done so stepped back6 No. 14

- 1867

so as not to be vis i ble from the doorway or a window

. But who knocked is not important. What is important is that when Brown, alarmed by the knocking, peered out of the window , there in plain view was omi nous

- looking , no

uniform Secor. No doubt the undercover officer, having s uperior knowledge of the suspec t s, maybe of the interior of the res i dence, and so forth, should be part of the search
team ; the que s tion is whether he should be a t the very front of the team, hence the person most likely to be seen by an occupant of the res i dence. The appendix to the e state’s brief contains a formidable expert report by William T. Gaut, holder of several degrees, including a Ph.D. in Criminal Just ice, and a police off i cer for 24 years who attained high rank in the Birmingham, Al abama police department and has also been employed by pr ivate security firms. His report emphasizes the difference b etween drug searches and searches for stolen property, an d the need to utilize the kind of methods used in the search of Brown’s apartment when one is searching for ill e gal drugs

— but not otherwise

— because drug dealers tend to be heavily armed and drugs often can easily be di s posed of. A lthough it was the drug ta sk force that conducted the search of Brown’s apar t ment, it was not looking for drugs; and Gaut argues in his report that when searching merely for stolen property (unless of course the property consists of illegal drugs) , the search “ should be conducted d uring daylight hours” and “an easily identifiable police officer shall knock and notify per sons inside ” in order “to reduce or eliminate the possibility of misidentification. It is well known that perpetr a tors of a home invasion, for the purpose of gaining entry, some times impersona te police officers” but rarely “have the co m plete visual identi t y including clothing withNo. 14

- 1867 7

the word ‘POLICE’ prominently written on both the front and back.” The report also notes that there was a lot of co nfused shouting by the o fficers as they piled into Brown’s apartment; apparently one officer shout ed “Get down , mother fucker ! ” which might have made the occupants i ncluding Brown further suspect that the intru d ers weren’t r eally cops.
Gaut ’s report concludes that the search of t he apartment was a “gross deviation from accepted police practice s and procedures by the Brown County Sheriff’s Office,” a devi ation that rose “to the level of substantial, deliberate indiffe rence for the rights and safety of” Brown.

But even if Gaut ’s rep ort is 100 percent on the mark , it can’t justify imposing liability on Secor. Secor did not d e vise the search policy adopted by Brown County. He was d o ing what he was told to do when, accoutered as he was, he led the search of Brown’s apartment. Of course if one is told by one’s superiors to do something that is obviously i l legal, it is no defense that one was just obeying orders; that was a d efense conclusively rejected at the Nure m berg t rials of Nazi war criminals. But the situation in this case was not t hat e xtreme . There were as we mentioned reasons for ha v ing the unde r cover officer, who needs a goatee, sideburns, etc. in his

u n dercover work, lead the search . There was no compelling reason for him to be the one to knock on the door, but it wasn’t because of that, but because he was vis i ble through the window , that Brown saw him and co m menced his fatal flight

. E ven if we thought Secor may have been exceeding proper constitutional bounds in leading the search given his

a p pearance , he would still be entitled to qualified immunity,8 No. 14

- 1867

thus defeating the estate’s claim against him. As explained in Plumhoff v. Ric k ard , 134 S. Ct. 2012, 2023 (2014), “ a defendant cannot be said to have violated a clearly esta b lished right unless the right ’ s contours were su f ficiently definite that any reasonable official in the defen dant’ s shoes would have u nderstood that he was violating it. In other words, ‘ existing precedent must have placed the statu tory or const i tutional question’ confronted by t he official ‘ be yond debate.’ In ad d ition, ‘ [w] e have repeatedly told courts ... not to define clearly established law at a high level of gen erality,’ since doing so avoids the crucial question whether the official acted re a so nably in the particular ci r cumstances that he or she faced ” (c ita tions omitted). Gaut’s report is , however, evi dence that the C ounty

— the other remaining defendant

— may have failed, through rec kless indifference to the safety of persons who find the mselves in pre m ises subjected to a police search, to teach its police how to conduct a competent search

. It’s true that a suit under se c tion 1983 is not governed by the common law doctrine of r e spondeat superior; liability for a police officer’s violation of constitutional rights while acting within the scope of his employment i s not automatically imposed on his employer, in this case Brown County. Monell v. Depar tment of Social Se r vices , 436 U.S. 658 (1978); Gernetzke v. K enosha Unified School District No. 1 , 274 F.3d 464, 469 (7th Cir. 2001). But if the vi o lation stems more or less directly from acts of the employer, as it did in this case if indeed the C ou nty prescribed an unconst i tutional search protocol for its p olice to follow, the e m ployer is liable. Gaut’s report sever ely criticizing the C ounty’s search po licy might , if ad missible (compare Florek v. Village of Mund e-No. 14

- 1867 9

lein , 649 F.3d 594, 601

– 03 (7th Cir. 2011) ) , entitle the estate to a trial , were it not for a fatal procedural error by its lawyer : failing to a u thenticate Gaut’s expert report. It was filed with the district cou rt but could not be admitted in to evidence without an affidavit attesting to its truthfu l ness

. Fed. R. Civ. P. 56(e)(3); Fed. R. Evid. 901(a); Scott v. E d inburg , 346 F.3d 752 , 759

– 60 and n. 7 (7th Cir. 2003). There was no aff i davit. Nor did the plaintiff’s lawyer cite Gaut’s report in o p posing the defendants’ motion for summary judgment. On appeal he made the convoluted argument that it was the defe n dants’ burden to depose Gaut and that ha v ing failed to do that they admitted that everything in his report wa s true. Not so . Deposing a witness is optional. An y way the report could not be used to oppose summary jud g ment because it

was in admissible. Without the r e port there is insufficient e vidence to justify imposing liabi l ity on the County. A FFIRMED

.