                        NONPRECEDENTIAL DISPOSITION
                To be cited only in accordance with Fed. R. App. P. 32.1




                United States Court of Appeals
                                For the Seventh Circuit
                                Chicago, Illinois 60604

                               Submitted May 30, 2019 *
                                Decided May 31, 2019

                                        Before

                      DIANE P. WOOD, Chief Judge

                      FRANK H. EASTERBROOK, Circuit Judge

                      ILANA DIAMOND ROVNER, Circuit Judge

No. 18-3179

TOMECA DENWIDDIE,                              Appeal from the United States District
    Plaintiff-Appellant,                       Court for the Eastern District of Wisconsin.

      v.                                       No. 18-CV-601-JPS

STEPHEN J. MUELLER, et al.,                    J.P. Stadtmueller,
     Defendants-Appellees.                     Judge.



                                      ORDER

      Police officers searched Tomeca Denwiddie’s home because they mistakenly
thought that the target of their search—David Montgomery, Denwiddie’s former
companion—lived there. She sued the officers under 42 U.S.C. § 1983 for searching her
home without probable cause and unreasonably destroying and confiscating her
property in violation of the Fourth Amendment. The district court granted the officers’

      * We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 18-3179                                                                        Page 2

motion to dismiss based on qualified immunity. Because the officers did not establish
that qualified immunity applies based on the facts as Denwiddie pleaded them, we
vacate the judgment and remand for further proceedings.
       In her complaint, Denwiddie alleged that the defendants—City of Racine police
officers—“raided” her home based on faulty information, kicked in and damaged her
door, and destroyed and confiscated her “property.” (Her complaint did not specify
what type of property was taken). The officers moved to dismiss the complaint under
Federal Rule of Civil Procedure 12(b)(6), arguing that Denwiddie failed to state a claim
for a Fourth Amendment violation and that, even if she had, they were protected by
qualified immunity. Denwiddie countered that the officers had ignored facts showing
that the “David Montgomery” who resided in her home was her young son and that
they therefore lacked probable cause to conduct the search. Further, she argued,
because the warrant did not specify the person or things to be searched, it was
impossible for the raiding officers to know whom or what they were supposed to be
looking for. She reiterated that the officers needlessly destroyed her “property,” and
explained that they had indefinitely taken some of her “legally purchased and
possessed items” that “did not prove evidence of crime” nor had been used in the
commission of a crime. (She did not specify whether the seized property would have
been of the kind to fall outside the scope of the search warrant). Albeit briefly, she
discussed the officers’ qualified immunity defense and cited cases to support her
argument that immunity did not apply.
       The district court granted the officers’ motion to dismiss, deciding that they were
entitled to qualified immunity because, although Denwiddie had alleged a Fourth
Amendment violation, she had “not carried her burden to rebut” their defense that they
had not violated any clearly established law. Denwiddie appeals.
        Denwiddie argues that the district court erred in dismissing her claim based on
qualified immunity. At the outset, we reject the appellees’ suggestion that Denwiddie
waived this issue because, they say, she “makes no legal argument and cites no relevant
case law.” Denwiddie’s brief specifically addresses qualified immunity and refers to
generally relevant authority. On appeal, we “construe pro se filings liberally, and will
address any cogent arguments we are able to discern in a pro se appellate brief.” Parker
v. Four Seasons Hotels, Ltd., 845 F.3d 807, 811 (7th Cir. 2017). We also do not accept the
appellees’ contention that Denwiddie has waived other arguments, namely, that the
search warrant was overbroad and that the officers seized her property without
compensation. The appellees fault Denwiddie for not explicitly mentioning the
sufficiency of the warrant or referencing the Fifth Amendment. But Denwiddie was not
No. 18-3179                                                                           Page 3

required to plead legal theories, Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011),
so her allegations that the officers sought a warrant based on an “assumption,”
executed an overbroad warrant, and denied her access to her property sufficiently
preserved her arguments on appeal, see King v. Kramer, 763 F.3d 635, 642 (7th Cir. 2014).
       We review de novo the granting of a Rule 12(b)(6) motion based on qualified
immunity. Reed v. Palmer, 906 F.3d 540, 546 (7th Cir. 2018). In determining whether the
defense applies, we look to (1) whether the defendants violated a constitutional right,
and (2) whether the constitutional right was clearly established. Pearson v. Callahan,
555 U.S. 223, 232 (2009); Armstrong v. Daily, 786 F.3d 529, 537 (7th Cir. 2015).
        First, Denwiddie stated a claim that the officers violated her constitutional
rights. We consider both her complaint and the additional allegations, consistent with
      1

the complaint, that she raised in response to the motion to dismiss. Smith v. Dart, 803
F.3d 304, 311 (7th Cir. 2015). Denwiddie alleged that the officers ignored evidence that
Montgomery did not reside in her home and therefore obtained a warrant based on
false or omitted information. See United States v. Mykytiuk, 402 F.3d 773, 776–77 (7th Cir.
2005). She further alleged that the warrant was overly broad because it did not describe
the person or things to be seized, nor did it explain what evidence the officers were
supposed to search for. See Massachusetts v. Sheppard, 468 U.S. 981, 988 n.5 (1984).
Denwiddie also asserted that the officers unreasonably destroyed her property when
executing the search, whether it was lawful or not. See United States v. Ramirez, 523 U.S.
65, 71 (1998) (“Excessive or unnecessary destruction of property in the course of a
search may violate the Fourth Amendment, even though the entry itself is lawful and
the fruits of the search are not subject to suppression.”). And, she explained, the officers
permanently confiscated some of her lawfully possessed property, which they could not
have reasonably believed to be within the scope of the warrant. See Pepper v. Village of
Oak Park, 430 F.3d 805, 809 (7th Cir. 2005). Given Denwiddie’s burden simply to state a
plausible grievance “that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged,” Archer v. Chisholm, 870 F.3d 603, 612 (7th
Cir. 2017) (citation omitted), her complaint passes muster—though we do not comment
on whether it has merit.



       1 On appeal, the appellees have waived any argument that Denwiddie failed to
state a claim. In a footnote, they state that they “disagree” with the district court’s
analysis, but they do not develop any argument. Instead, they incorporate “the reasons
stated in [their] motion to dismiss.” Incorporation by reference is not permitted in an
appellate brief. Spitz v. Proven Winners N. Am., LLC, 759 F.3d 724, 731 (7th Cir. 2014).
No. 18-3179                                                                           Page 4

        The district court erred in determining that no clearly established law was
violated because Denwiddie “had not carried her burden to rebut” the officers’
qualified immunity defense. There is no duty to plead around a qualified immunity
defense. Gomez v. Toledo, 446 U.S. 635, 640 (1980) (“We see no basis for imposing on the
plaintiff an obligation to anticipate such a defense by stating in his complaint that the
defendant acted in bad faith.”). And “[b]ecause a qualified immunity defense so closely
depends on the facts of the case, a complaint is generally not dismissed under Rule
12(b)(6) on qualified immunity grounds.” Reed, 906 F.3d at 548 (citation omitted). When
qualified immunity is raised in a motion to dismiss, “it is the defendant’s conduct as
alleged in the complaint that is scrutinized for ‘objective legal reasonableness.’” Id. at 549
(quoting Behrens v. Pelletier, 516 U.S. 299, 309 (1996)). We take care to follow the
Supreme Court’s admonition not to define the constitutional rights in question at too
high a level of generality. See Kisela v. Hughes, 138 S. Ct. 1148, 1152–53 (2018); White v.
Pauly, 137 S. Ct. 548, 552 (2017). The rights must be described with adequate specificity,
but there need not be a case directly on point so long as existing precedent is sufficiently
analogous as to place the officers on notice that their conduct was unlawful. Id.
       It was clearly established in October 2014 that the search and seizure that
Denwiddie described in her complaint and elaborated on in her response to the motion
to dismiss were unlawful. Ignoring key facts when obtaining a search warrant,
executing an overly broad warrant, destroying the homeowner’s property, and
permanently seizing private, legal property, are objectively unreasonable. See Sheppard,
468 U.S. at 988 n.5 (“The uniformly applied rule is that a search conducted pursuant to a
warrant that fails to conform to the particularity requirement of the Fourth Amendment
is unconstitutional.”); Whitlock v. Brown, 596 F.3d 406, 410–11 (7th Cir. 2010) (explaining
that police officer violates Fourth Amendment if he recklessly withholds material
information from probable-cause affidavit); Daniels v. Southfort, 6 F.3d 482, 486 (7th Cir.
1993) (stating that plaintiff could file complaint against officers for unreasonably
entering his apartment, tearing down his bathroom ceiling, and breaking his telephones
and cable box in violation of Fourth Amendment). It is possible that none of these
things happened, but that is a question of proof, which comes later.
        Because we are remanding the case, we note that Denwiddie was twice denied
leave to amend her complaint because, although she explained that she wished to allege
additional claims against more defendants, she failed to submit a proposed amended
complaint with her motions. A district court may deny a motion for leave to amend for
that reason, but we have explained that if the substance of the proposed changes is
clear, a proposed amended complaint is not strictly required. See Parker v. Scheck Mech.
Corp., 772 F.3d 502, 506 (7th Cir. 2014). In this case, Denwiddie first moved to amend
No. 18-3179                                                                          Page 5

before the complaint was served. Leave of court was not required, see FED. R. CIV. P.
15(a), yet the district court denied the motion. Denwiddie then filed a second motion
just after service was documented; she again sought to add more facts about the search
and clarify the relief that she sought, but again she did not submit a proposed amended
complaint for pre-approval. It seems that Denwiddie did not understand what the
district court was asking of her. On remand, Denwiddie should be permitted to file an
amended complaint, if she chooses, without making another request.
       Finally, a word about the appellees’ brief. By prior order, we noted their failure
to comply with Circuit Rule 28(b) and ordered them to file an amended jurisdictional
statement. Their amended statement still fails to comply with Rule 28(b), even though
we instructed that they “state explicitly” whether Denwiddie’s statement was complete
and correct. This is not a mindless formality, as we explained while exhorting
practitioners to improve in respect to jurisdictional statements:
       The job of the appellee is to review the appellant’s jurisdictional statement
       to see if it is both complete and correct. These terms are not synonyms. A
       statement might be complete in the sense of covering all required topics, yet
       contain inaccuracies. Alternatively, everything furnished might be correct,
       but the statement might be missing something critical, such as the
       citizenship of a party, the particular statute at issue, or the dates on which
       the court’s jurisdiction depends. If the appellant’s statement is not
       complete, or not correct, the appellee must file a “complete jurisdictional
       summary.” It is not enough simply to correct the misstatement or omission
       and “accept” the balance of the appellant’s statement.
Baez-Sanchez v. Sessions, 862 F.3d 638, 641 (7th Cir. 2017) (Wood, C.J., in chambers).
Given that we identified the defect in the appellees’ jurisdictional statement, their
failure to correct it is puzzling.
      We REVERSE the dismissal of Denwiddie’s complaint and REMAND for further
proceedings.
