Argued January 23, 2014
[Copyrighted Material Omitted]
Appeal from the United States District Court for the Western District of Wisconsin. No. 3:12-cv-00789-slc, Stephen L. Crocker, Magistrate Judge.
For RORIC GIBBS, Plaintiff - Appellee: John R. Monroe, Attorney, Roswell, GA.
For BROOKE LOMAS, Defendant - Appellant: Catherine M. Rottier, Attorney, BOARDMAN & CLARK, Madison, WI.
Before POSNER and RIPPLE, Circuit Judges, and GILBERT, District Judge.[*]
Ripple, Circuit Judge.
Officer Brooke Lomas, a police officer in Madison, Wisconsin, responded to a complaint that a man was driving through downtown Madison while holding an unholstered gun in the view of other drivers. After locating the individual, Roric Gibbs, she issued a misdemeanor citation for disorderly conduct and searched his car. The citation was later dismissed, and Mr. Gibbs then brought this action under 42 U.S.C. § 1983 against Officer Lomas. Mr. Gibbs alleged that the arrest and search had violated his Fourth Amendment right to be free from unreasonable searches and seizures. Officer Lomas moved for summary judgment on the basis of qualified immunity. The district court denied her motion. We now reverse that determination. Even if Mr. Gibbs had a constitutional right to be free from this arrest and search, that right was not clearly established at the time of Officer Lomas's actions. The district court should have granted her motion.
Because this is an interlocutory appeal from a denial of summary judgment based on qualified immunity, we recount the facts as " asserted by the plaintiff" or as " assumed by the district court." Jewett v. Anders, 521 F.3d 818, 819 (7th Cir. 2008).
On July 15, 2012, Travis and Katherine Gruchow were driving through Madison, Wisconsin. The Gruchows saw a young man in a red Jeep Cherokee; he was holding near his head what appeared to be a handgun. The barrel was pointed at the
ceiling of the Jeep. Mrs. Gruchow called the nonemergency number for the Madison Police Department. She told dispatch that she and her husband " saw [a] man driving with a handgun in his car, so we just thought we should report it."  The dispatch officer asked whether the driver was threatening anyone. Mrs. Gruchow replied, " [N]o, he was driving--we couldn't tell if it [ the gun ] was real or not."  She said that the driver had the gun " up in the air when he was driving, kind of at his side."  Mrs. Gruchow told dispatch that the man had parked at Dexter's Pub, and she provided a description of the driver and the vehicle, including the vehicle's license plate number. She said that the driver went into the bar, which she thought " seem[ed] a little off."  Dispatch asked again if the driver was threatening someone or pointing the gun. Mrs. Gruchow said no, but that he had been " speeding really fast." 
Dexter's Pub is located on Officer Lomas's beat. Dispatch therefore advised her of the report, giving her a description of the individual and of the Jeep and telling her that the individual " had a gun on him" but that " nothing was threatened with the weapon."  Dispatch also stated that the man might be " armed in the bar."  Officer Lomas drove to Dexter's Pub and, while en route, called the Gruchows. Mrs. Gruchow told Officer Lomas that while she and her husband were stopped at a red light, she had seen the driver of the vehicle in the next lane holding a black handgun near his head, pointed at the ceiling. She and her husband had followed the Jeep to Dexter's and, during the course of that drive, saw the driver hold the gun up and point it at the ceiling a second time. Mrs. Gruchow told Officer Lomas that the suspect was driving " badly," specifically that he had accelerated quickly from a red light. Mrs. Gruchow stated that it did not appear as though the driver was going to harm himself. At her deposition, Officer Lomas recalled that, at the time she spoke with the Gruchows, she thought it was " very unusual" for someone to drive with a gun in his hand instead of having it " holstered or in the trunk or back seat." 
When Officer Lomas arrived at Dexter's, her superior, Sergeant Brian Chaney, already was there. Other officers also arrived on the scene. The officers decided to look at the Jeep, which was parked and unoccupied, to see if a weapon was visible. However, before they did so, Mr. Gibbs walked out of the bar. Mr. Gibbs matched the physical description that the Gruchows had provided to Officer Lomas. Sergeant Chaney instructed Mr. Gibbs to show his hands, turn around and put his hands on the building wall. Mr. Gibbs complied with these orders. Officer Lomas then handcuffed Mr. Gibbs, and Sergeant Chaney frisked him for weapons. During this interaction, Mr. Gibbs told the officers that he was the driver of the Jeep. Officer Lomas then placed Mr. Gibbs in the back of a squad car.
While Mr. Gibbs was in the squad car, Officer Lomas called the Gruchows a second time. According to Officer Lomas, Mrs. Gruchow added to her earlier statement that " she was disturbed by the behavior."  Officer Lomas recalled that Mrs. Gruchow stated that
initially she was reluctant to call police because she knew that the state had just passed new concealed carry laws, but that based on the driving behavior and the holding the gun visibly in the vehicle, they [the Gruchows] thought it was enough to warrant a call to police to have it checked out.
After this conversation, Officer Lomas explained to Mr. Gibbs that he was being detained because someone had seen him driving his vehicle and pointing a gun at the ceiling of the car. She also informed him of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). After hearing his rights, Mr. Gibbs told Officer Lomas that he had airsoft guns in his car. Airsoft guns are replicas of firearms; they usually have the same color, dimensions, weight and markings as real firearms. Mr. Gibbs explained that he was on his way home from an airsoft event, where he had been a referee, when a friend called and suggested that they meet at Dexter's for a drink.
The parties disagree as to whether, during the course of this conversation, Mr. Gibbs consented to Officer Lomas's search of the Jeep. Officer Lomas stated that during her discussion with Mr. Gibbs, he had consented to her looking in the Jeep for the airsoft weapons. By contrast, Mr. Gibbs testified that Officer Lomas had asked for permission to search his Jeep, but he had denied it. He said that he had offered to get the items for her but that he had refused her request to search the vehicle. In any event, Officer Lomas searched the Jeep and found an airsoft shotgun, an airsoft handgun and a plastic knife. She stated that the handgun was visible just by looking in the window of the Jeep. She took the airsoft handgun and placed it in her squad car because she believed that it was evidence of a disorderly conduct violation.
After the search, Officer Lomas discussed the situation with Sergeant Chaney, and they decided to issue Mr. Gibbs a misdemeanor citation for disorderly conduct. Mr. Gibbs signed the citation to acknowledge that he had received it and that it was explained to him. He then was released. According to the law enforcement report, the entire interaction lasted approximately thirty minutes; Mr. Gibbs says it took about an hour. The citation was later dismissed ...