                             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 “po-
lice, 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 Coun-
ty. 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 un-
loaded. 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 proba-
ble cause to believe that a burglar had hidden stolen proper-
ty 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 be-
hind 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 po-
lice 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 con-
tinues, for him to be the first officer whom an occupant of
the apartment would see, because home invasions by crimi-
nals 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 ra-
ther than a cop.
    If the search was conducted in an unreasonable manner
and therefore violated the Fourth Amendment—more pre-
cisely the principles of the Fourth Amendment, deemed ap-
plicable 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 con-
ducted 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 fur-
ther 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 justi-
fied.
     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. In-
deed 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, no-
uniform Secor. No doubt the undercover officer, having su-
perior 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, Ala-
bama police department and has also been employed by pri-
vate security firms. His report emphasizes the difference be-
tween 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 con-
fused 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 in-
cluding Brown further suspect that the intruders weren’t re-
ally 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 devia-
tion that rose “to the level of substantial, deliberate indiffer-
ence 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 de-
fense conclusively rejected at the Nuremberg trials of Nazi
war criminals. But the situation in this case was not that ex-
treme. 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 un-
derstood 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 addi-
tion, ‘[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 reason-
ably in the particular circumstances that he or she faced” (ci-
tations omitted).
    Gaut’s report is, however, evidence that the County—the
other remaining defendant—may have failed, through reck-
less indifference to the safety of persons who find them-
selves 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. Depart-
ment of Social Services, 436 U.S. 658 (1978); Gernetzke v. Ke-
nosha 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 Coun-
ty prescribed an unconstitutional search protocol for its po-
lice to follow, the employer is liable.
    Gaut’s report severely criticizing the County’s search pol-
icy 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 defend-
ants’ 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 ev-
idence to justify imposing liability on the County.
                                                       AFFIRMED.
