March 30, 2018
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 1:14-cv-03380 -
Manish S. Shah, Judge.
Easterbrook and Rovner, Circuit Judges, and Gilbert, District
Gilbert, District Judge.
a hornbook example of how to waive an argument on appeal. One
day, a confidential informant told Officer William
Hronopoulos that William Wheeler had some guns in his Chicago
apartment. This informant had previously given information
that led to successful search warrants, so when Officer
Hronopoulos received the information about Wheeler, he (1)
drove the informant by Wheeler's apartment to confirm the
address; (2) worked with the Cook County State's Attorney
to obtain a search warrant for the premises; and (3) brought
the informant before a judge to testify about the information
in the warrant applications. The judge issued two search
warrants: one for each floor of the apartment. Later that
night, the police executed the warrants and found guns,
ammunition, and some heroin.
faced several criminal charges relating to the contraband,
but a jury acquitted him because the evidence did not prove
beyond a reasonable doubt that the contraband was his. So
Wheeler and his wife-Joyce Thomas- turned around and filed a
lawsuit against both the city and the officers involved in
the arrest. Only two of their claims survived until the
summary judgment stage: (1) a Fourth Amendment claim for an
unlawful search and arrest pursuant to 42 U.S.C. § 1983;
and (2) a state-law claim for malicious prosecution.
the defendants moved for summary judgment and pointed out
that there were no genuine disputes over any material facts,
Wheeler and Thomas brought a bizarre argument in response:
they claimed that the search warrant was defective because
the confidential informant's tip was hearsay. The
district court correctly rejected that argument because the
defendants were not offering the informant's tip into
evidence to prove the truth of the matter it asserted, so the
tip was not hearsay material. See Illinois v. Gates,
462 U.S. 213, 244-45 (1983). Ultimately, the district court
granted summary judgment in favor of the defendants because
there was probable cause for the search, arrest, and
prosecution via the informant's tip.
and Thomas brought this appeal, but they make an irrational
argument: they now say that there is a disputed fact as to
whether the confidential informant existed or gave the tip at
all, so (1) both the seizure of the contraband and the arrest
were the fruits of an illegal search; and (2) there was
accordingly no probable cause for Wheeler's prosecution.
Although we review a district court's decision to grant
summary judgment de novo and summary judgment is not
appropriate if there are any genuine disputes as to any
material facts, Valenti v. Lawson, 889 F.3d 427, 428
(7th Cir. 2018) (citing Dunn v. Menard, Inc., 880
F.3d 899, 905 (7th Cir. 2018)) (further internal citations
omitted), parties cannot conjure up brand new legal theories
on appeal like this. Failing to bring an argument to the
district court means that you waive that argument on appeal.
United Cent. Bank v. Davenport Estate LLC, 815 F.3d
315, 318 (7th Cir. 2016) (internal citation omitted);
Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th
Cir. 2012). And this case presents an egregious violation of
that rule: not only did Wheeler and Thomas fail to argue
below that the confidential informant did not exist, they
tacitly admitted that the informant existed by arguing that
his statements were hearsay.
also argues that the district court erred by not addressing
their supposed Brady claim: whether the
officers' failure to procure any fingerprint
evidence-even though Wheeler never requested that evidence
during his criminal proceedings-violated Wheeler's due
process rights. Brady v. Maryland, 373 U.S. 83, 87,
83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963); see also
Saunders-El v. Rohde, 778 F.3d 556, 561-62 (7th Cir.
2015) (explaining the elements of a Brady claim).
But Wheeler waived this argument too because the amended
complaint did not allege a Brady claim. The amended
complaint did mention a lack of fingerprint evidence, but
only in the sense that it (somehow) showed a lack of probable
cause for Wheeler's arrest and prosecution. And even if
the district court did miss a tangible Brady
claim-which it did not- Wheeler and Thomas certainly never
brought that to the court's attention. So that argument
is also waived. Poullard v. McDonald, 829 F.3d 844,
855 (7th Cir. 2016) (internal citation omitted).
exist for a reason. Rules are especially important for
practicing attorneys. And rules on how to bring an appeal are
critical to the proper functioning of our judiciary: a case
must be fully fleshed out at the district court level before
an appellate court can accurately review that case. Wheeler
and Thomas are no exception to that rule, so we must ratify
the judgment of the district court.
[*] Of the Southern District of Illinois,
sitting by ...