In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 14-1867

ESTATE OF ADAM BROWN,

Plaintiff-Appellant,

v.

TIMOTHY THOMAS, MATTHEW SECOR, and BROWN COUNTY,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 1:12-cv-01202-WCG — William C. Griesbach, Chief Judge.

____________________

ARGUED OCTOBER 3, 2014 — DECIDED NOVEMBER 13, 2014

____________________

Before POSNER, ROVNER, and TINDER, Circuit Judges.

POSNER, 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 “police, search warrant!” As the police began to force open the 

front door when no occupant opened it, Brown ran upstairs 

to his bedroom and grabbed an unloaded shotgun that he 

kept there. Police followed. As they reached the top of the 
2 No. 14-1867

stairs they saw him standing in a corner of the bedroom 

pointing the shotgun at them. One of the officers, defendant 

Secor, shot Brown dead with an automatic rifle, precipitating 

this suit under 42 U.S.C. § 1983 against Secor, another officer

in the search party (Thomas, who has, however, since been 

dismissed from the case), and their employer, Brown County. The district court granted summary judgment in favor of 

the defendants, precipitating this appeal by Brown’s estate.

Secor had no way of knowing that the shotgun was unloaded. Had it been loaded with 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., Terebesi v. 

Torreso, 764 F.3d 217, 233–36 and n. 16 (2d Cir. 2014); cf. 

Petkus v. Richland County, 767 F.3d 647, 650–52 (7th Cir. 

2014)), violating the Fourth Amendment and causing Secor 

mistakenly to think he had to kill Brown in self-defense.

According to the estate’s version of events, when Brown 

peered out of his front window in response to the knocking 

and the shout he found himself face to face with a man—it 

was Officer Secor—holding an automatic rifle, dressed in 

dark civilian clothes, with long hair, earrings, a goatee, and 

sideburns, and wearing a hoodie and a baseball cap. Brown

turned away from the window, yelled “What the fuck ... we 

are getting robbed again” (recently the apartment had been 

robbed by a person pretending to be an acquaintance), and 

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 duplex). 

Within seconds the police broke down the front door and 
No. 14-1867 3

entered—five in all, two others having gone around to the 

back of the house to stop anyone from leaving by the rear 

door. 

The officers had a valid search warrant; there was probable cause to believe that a burglar had hidden stolen property in Brown’s apartment. The County’s practice is for almost 

all searches to be executed by a drug task force trained in 

SWAT tactics and therefore heavily armed. In order to be 

sure that the search will indeed be of the building specified 

in the warrant, the team dispatches undercover officers to 

find the building and lead the team into it. Secor was one of 

the undercover officers, which was why he was accoutered 

as he was. The only indication that he was a police officer 

rather than a criminal was a badge he was wearing around 

his neck, and it’s unclear whether Brown could have seen 

the badge in the dark when he looked through his window 

to see who was outside shouting. The officer standing behind Secor was wearing a jacket that said “police,” as well as 

a badge, but was otherwise dressed in civilian clothes like 

Secor. The other three officers in the group that entered the 

apartment were wearing standard police uniforms but had 

been in the background, in darkness, when Brown peered

outside.

The estate’s case begins with the contention that the police had no need to conduct the search after dark (it is dark 

at 6:20 p.m. in December in Green Bay—sunset was at 4:14

p.m. the day of the search). There was no urgency. It was not

like the search of a stash house, which might contain large 

quantities of drugs and money. The police were looking for 

some loot of modest value (a video game system, a couple of 

video games, and a few other small items) plus the burglar 
4 No. 14-1867

who had stolen it, whom the police correctly believed to be 

in Brown’s apartment. Brown himself was not the suspect. In 

these circumstances, the estate argues, the search didn’t have

to be conducted by a heavily armed SWAT team, let alone a 

team led by an undercover police officer who looked like an 

armed thug. It was especially dangerous, the argument continues, for him to be the first officer whom an occupant of 

the apartment would see, because home invasions by criminals pretending to be police are apparently common, though 

remember that the previous break-in to Brown’s apartment 

had been by someone pretending to be an acquaintance rather than a cop.

If the search was conducted in an unreasonable manner 

and therefore violated the Fourth Amendment—more precisely the principles of the Fourth Amendment, deemed applicable by interpretation of the due process clause of the 

Fourteenth Amendment to state and local searches—and 

Brown would not have been killed had the search been conducted in a reasonable manner, then his estate has a valid 

claim against Officer Secor and maybe (as we’ll see) against 

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 for robbery, and might put up a struggle. (He didn’t.) 

The police 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 further specified but the fact that Brown turned out to possess 

illegal shotguns (he had two, only one of which he bran-
No. 14-1867 5

dished) suggests that their suspicion may have been justified.

The judge ruled that the search was reasonable, although 

nighttime searches, especially of a residence (which unlike a 

store or an office building is likely to be occupied at night), 

are risky undertakings, and disfavored. Although there is a 

difference between a search late at night, when the residents 

are likely to be asleep, and a search in late afternoon or early 

evening, there doesn’t seem to have been any reason not to 

postpone the search of Brown’s apartment till daylight. Indeed since it was dark and the police could not be clearly 

identified until they entered, the decision to search before 

daybreak seems to have been foolish. The defendants say 

that the police were heavily armed because they anticipated 

several occupants, one a “robber” who had escaped from jail

and two others who were regarded as “trouble.” But the 

robber (the burglar) was not an escapee in the traditional 

sense. A participant in a work-release program at the county 

jail, he had been authorized to go to work in the morning 

but required to return in the evening—which he’d failed to 

do at some point before the search took place.

The defendants don’t argue that the police had to be 

heavily 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 Chicago, 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 back 
6 No. 14-1867

so as not to be visible 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 ominous-looking, nouniform Secor. No doubt the undercover officer, having superior knowledge of the suspects, maybe of the interior of 

the residence, and so forth, should be part of the search 

team; the question is whether he should be at the very front 

of the team, hence the person most likely to be seen by an 

occupant of the residence.

The appendix to the estate’s brief contains a formidable

expert report by William T. Gaut, holder of several degrees, 

including a Ph.D. in Criminal Justice, and a police officer for 

24 years who attained high rank in the Birmingham, Alabama police department and has also been employed by private security firms. His report emphasizes the difference between drug searches and searches for stolen property, and

the need to utilize the kind of methods used in the search of 

Brown’s apartment when one is searching for illegal drugs—

but not otherwise—because drug dealers tend to be heavily 

armed and drugs often can easily be disposed of. Although 

it was the drug task force that conducted the search of 

Brown’s apartment, 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 during daylight 

hours” and “an easily identifiable police officer shall knock 

and notify persons inside” in order “to reduce or eliminate 

the possibility of misidentification. It is well known that 

perpetrators of a home invasion, for the purpose of gaining

entry, sometimes impersonate police officers” but rarely 

“have the complete visual identity including clothing with 
No. 14-1867 7

the word ‘POLICE’ prominently written on both the front 

and back.” The report also notes that there was a lot of confused shouting by the officers as they piled into Brown’s 

apartment; apparently one officer shouted “Get down,

mother fucker!” which might have made the occupants including Brown further suspect that the intruders weren’t really cops.

Gaut’s report concludes that the search of the apartment 

was a “gross deviation from accepted police practices and 

procedures by the Brown County Sheriff’s Office,” a deviation that rose “to the level of substantial, deliberate indifference for the rights and safety of” Brown.

But even if Gaut’s report is 100 percent on the mark, it 

can’t justify imposing liability on Secor. Secor did not devise

the search policy adopted by Brown County. He was doing 

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 illegal, it is 

no defense that one was just obeying orders; that was a defense conclusively rejected at the Nuremberg trials of Nazi 

war criminals. But the situation in this case was not that extreme. There were as we mentioned reasons for having the 

undercover officer, who needs a goatee, sideburns, etc. in his 

undercover 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 visible through 

the window, that Brown saw him and commenced his fatal 

flight.

Even if we thought Secor may have been exceeding 

proper constitutional bounds in leading the search given his 

appearance, 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. Rickard, 134 S. Ct. 2012, 2023 (2014), “a defendant 

cannot be said to have violated a clearly established right 

unless the right’s contours were sufficiently definite that any 

reasonable official in the defendant’s shoes would have understood that he was violating it. In other words, ‘existing 

precedent must have placed the statutory or constitutional 

question’ confronted by the official ‘beyond debate.’ In addition, ‘[w]e have repeatedly told courts ... not to define clearly 

established law at a high level of generality,’ since doing so 

avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced” (citations omitted).

Gaut’s report is, however, evidence that the County—the 

other remaining defendant—may have failed, through reckless indifference to the safety of persons who find themselves in premises subjected to a police search, to teach its 

police how to conduct a competent search. It’s true that a 

suit under section 1983 is not governed by the common law 

doctrine of respondeat superior; liability for a police officer’s 

violation of constitutional rights while acting within the 

scope of his employment is not automatically imposed on 

his employer, in this case Brown County. Monell v. Department of Social Services, 436 U.S. 658 (1978); Gernetzke v. Kenosha Unified School District No. 1, 274 F.3d 464, 469 (7th Cir. 

2001). But if the violation stems more or less directly from

acts of the employer, as it did in this case if indeed the County prescribed an unconstitutional search protocol for its police to follow, the employer is liable.

Gaut’s report severely criticizing the County’s search policy might, if admissible (compare Florek v. Village of Munde-
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 authenticate Gaut’s expert report. It was filed with 

the district court but could not be admitted into evidence 

without an affidavit attesting to its truthfulness. Fed. R. Civ. 

P. 56(e)(3); Fed. R. Evid. 901(a); Scott v. Edinburg, 346 F.3d 

752, 759–60 and n. 7 (7th Cir. 2003). There was no affidavit. 

Nor did the plaintiff’s lawyer cite Gaut’s report in opposing 

the defendants’ motion for summary judgment. On appeal 

he made the convoluted argument that it was the defendants’ burden to depose Gaut and that having failed to do 

that they admitted that everything in his report was true. 

Not so. Deposing a witness is optional. Anyway the report 

could not be used to oppose summary judgment because it 

was inadmissible. Without the report there is insufficient evidence to justify imposing liability on the County.

AFFIRMED.