                                  In the

     United States Court of Appeals
                   For the Seventh Circuit
No. 13-3121

RORIC GIBBS,
                                                      Plaintiff-Appellee,

                                    v.


BROOKE LOMAS,
                                                  Defendant-Appellant.

         Appeal from the United States District Court for the
                    Western District of Wisconsin.
     No. 3:12-cv-00789-slc — Stephen L. Crocker, Magistrate Judge.


      ARGUED JANUARY 23, 2014 — DECIDED JUNE 17, 2014


   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


*
 The Honorable J. Phil Gilbert, of the United States District Court for the
Southern District of Illinois, sitting by designation.
2                                                      No. 13-3121

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 constitu-
tional 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.


                                  I
                        BACKGROUND
                                 A.
    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
No. 13-3121                                                                   3

should report it.”1 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.”2 She said that the driver had the gun “up in the air when
he was driving, kind of at his side.”3 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.”4
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.”5
    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 individ-
ual “had a gun on him” but that “nothing was threatened with



1
    R.23 (District Ct. Op.) at 3 (internal quotation marks omitted).


2
    Id. (second alteration in original) (internal quotation marks omitted).


3
    Id. (internal quotation marks omitted).


4
    Id. (internal quotation marks omitted).


5
    Id. (internal quotation marks omitted).
4                                                             No. 13-3121

the weapon.”6 Dispatch also stated that the man might be
“armed in the bar.”7 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.8
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.”9
    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,


6
    Id. (internal quotation marks omitted).


7
    Audio recording: Dispatch calls (July 15, 2012) (on file with court).


8
    R.12 (Lomas Dep.) at 3.


9
    Id.
No. 13-3121                                                         5

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 Ser-
geant 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.”10 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.[11]
   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

10
     Id. at 5.


11
     Id.
6                                                         No. 13-3121

of the car. She also informed him of his rights under Miranda
v. Arizona, 384 U.S. 436 (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.12 By contrast, Mr. Gibbs testified that
Officer Lomas had asked for permission to search his Jeep, but
he had denied it.13 He said that he had offered to get the items
for her but that he had refused her request to search the
vehicle.14 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.


12
     Id. at 6.


13
     R.15 (Gibbs Dep.) at 16.


14
    At the summary judgment stage, we take Mr. Gibbs’s version of events
as true and assume that there was no consent.
No. 13-3121                                                  7

   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 approxi-
mately thirty minutes; Mr. Gibbs says it took about an hour.
The citation was later dismissed pursuant to an agreement
made by Mr. Gibbs’s lawyer and the assistant district attorney
and approved by a state judge.


                              B.
   On October 31, 2012, Mr. Gibbs brought this action against
Officer Lomas under 42 U.S.C. § 1983. He did not name as
defendants any of the other officers who had been present in
the parking lot at Dexter’s Pub. He sought damages and
declaratory relief, alleging that he had been arrested without
probable cause and that his car had been searched without a
warrant, in violation of his rights under the Fourth Amend-
ment as made applicable to the states through the Fourteenth
Amendment. The Gruchows, Officer Lomas and Mr. Gibbs
gave depositions. Officer Lomas then moved for summary
judgment.
    In support of her motion, Officer Lomas argued to the
district court that her actions conformed to the Constitution
because she had probable cause to arrest Mr. Gibbs for disor-
derly conduct under Wisconsin state law. She took the view
that, despite a recent statutory amendment that exempts (in the
absence of “other facts and circumstances that indicate a
8                                                  No. 13-3121

criminal or malicious intent”) “loading, carrying, or going
armed with a firearm” from the category of citable disorderly
conduct, see Wis. Stat. § 947.01(2), the totality of the circum-
stances here—that Mr. Gibbs was driving fast on city streets
while pointing an unholstered gun at the ceiling of his
car—gave her probable cause to arrest and cite Mr. Gibbs.
Consequently, she maintained, the search of the car was
constitutionally permissible as a search incident to arrest.
Alternatively, Officer Lomas submitted that she was entitled to
qualified immunity because, at the time she acted, any consti-
tutional right that had been violated was not clearly estab-
lished.
    The district court denied Officer Lomas’s motion. In its
view, “the facts known to Lomas at the time were not sufficient
to warrant a belief that Gibbs had committed disorderly
conduct,” and, therefore, Officer Lomas did not have probable
cause to arrest Mr. Gibbs.15 In arriving at its decision, the
district court focused on the recent amendment to Wisconsin’s
disorderly conduct statute: “Although seeing a person hold a
gun in a car likely would alarm many people, and may well
have been a rare sight before the passage of the [statute], the
State of Wisconsin has specifically implemented a right to carry
firearms openly and has explicitly exempted such behavior
from prosecution.”16 The district court concluded that the
issuance of the citation constituted the violation of a clearly


15
     R.23 at 1.


16
     Id. at 10.
No. 13-3121                                                      9

established constitutional right because a reasonable police
officer in the same circumstances as Officer Lomas would not
believe that she had probable cause to arrest Mr. Gibbs.
Therefore, the district court held that Officer Lomas was not
entitled to qualified immunity. Officer Lomas timely appealed.


                                II
                         DISCUSSION
                                A.
    On appeal, Officer Lomas contends, as she did in the
district court, that she did not violate Mr. Gibbs’s constitutional
rights and, even if she did, those rights were not clearly
established when she acted. Accordingly, she urges, she is
entitled to qualified immunity. For the reasons set forth in this
opinion, we believe that there is merit in Officer Lomas’s
submission. We first address several threshold matters.


                                1.
      Our appellate jurisdiction is secure. “[A] district court’s
denial of summary judgment usually is an unappealable
interlocutory order … .” Jewett v. Anders, 521 F.3d 818, 821–22
(7th Cir. 2008). However, there is a well-established exception
to this general rule under the collateral order doctrine where
a party challenges a district court’s determination that a
government official is not entitled to qualified immunity.
Mitchell v. Forsyth, 472 U.S. 511, 524–30 (1985). Of course, when
we exercise this jurisdiction, we have authority only over
10                                                  No. 13-3121

appeals involving “abstract issues of law,” Johnson v. Jones, 515
U.S. 304, 317 (1995), i.e., those in which a district court has
decided, as a matter of law, whether a given set of facts
demonstrates that a violation of a clearly established constitu-
tional right has occurred, see Mitchell, 472 U.S. at 527–30. See
also Board v. Farnham, 394 F.3d 469, 476 (7th Cir. 2005). We do
not have, by contrast, jurisdiction over appeals from district
court orders regarding “‘evidence sufficiency,’” i.e., those in
which a district court has assessed whether a party has
produced sufficient evidence to create a genuine issue of triable
fact warranting trial on the merits. See Johnson, 515 U.S. at
313–18.
    Here, Officer Lomas’s appeal clearly falls within the first
category: She submits that, even considering the facts in the
light most favorable to Mr. Gibbs, those facts do not amount to
a clearly established constitutional violation. Therefore,
mindful of the limits of our jurisdiction, we must construe all
facts and inferences in favor of Mr. Gibbs and examine only the
“purely legal question” of whether those facts “make out a
violation of clearly established law.” Huff v. Reichert, 744 F.3d
999, 1004 (7th Cir. 2014) (internal quotation marks omitted).


                               2.
   The standard of review is also well established. We review
de novo the denial of a motion for summary judgment on
qualified immunity grounds. Findlay v. Lendermon, 722 F.3d
895, 899 (7th Cir. 2013).
No. 13-3121                                                       11

     In conducting our review, we do not evaluate the
     weight of the evidence, judge the credibility of
     witnesses or determine the ultimate truth of the
     matter; rather, we determine whether there exists a
     genuine issue of triable fact. Anderson v. Liberty
     Lobby, 477 U.S. 242, 249–50, 106 S. Ct. 2505, 91
     L. Ed. 2d 202 (1986). Summary judgment is proper if
     “the pleadings, depositions, answers to interrogato-
     ries, and admissions on file, together with the
     affidavits, if any, show that there is no genuine issue
     as to any material fact and that the moving party is
     entitled to a judgment as a matter of law.”
Jewett, 521 F.3d at 821 (quoting Magin v. Monsanto Co., 420 F.3d
679, 686 (7th Cir. 2005)); see also Fed. R. Civ. P. 56; Celotex Corp.
v. Catrett, 477 U.S. 317, 322–23 (1986).


                                 B.
   Having completed our examination of the pertinent
threshold issues, we now come to the merits of Officer Lomas’s
qualified immunity defense.


                                 1.
    We first examine the requirements of the qualified immu-
nity doctrine that Officer Lomas maintains protects her from
exposure to trial and liability from damages.
   “Section 1983 allows citizens whose constitutional rights
have been violated by public officials to sue those officials in
12                                                    No. 13-3121

their individual capacities.” Fleming v. Livingston Cnty., Ill., 674
F.3d 874, 878 (7th Cir. 2012). In responding to such an action,
a public official may raise the affirmative defense of qualified
immunity. Jewett, 521 F.3d at 823. Qualified immunity “protects
government officials from liability for civil damages insofar as
their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal
quotation marks omitted). This doctrine balances competing
concerns: On one hand, it protects a government official’s
ability to function without the threat of distraction and liability,
see Richardson v. McKnight, 521 U.S. 399, 407–08 (1997); and, on
the other, it affords members of the public the ability to
“vindicate constitutional violations by government officials
who abuse their offices,” Jewett, 521 F.3d at 822 (internal
quotation marks omitted).
    Determining whether a defendant state officer is entitled to
qualified immunity involves two inquiries: “(1) whether the
facts, taken in the light most favorable to the plaintiff, make out
a violation of a constitutional right, and (2) whether that
constitutional right was clearly established at the time of the
alleged violation.” Williams v. City of Chicago, 733 F.3d 749, 758
(7th Cir. 2013). If either inquiry is answered in the negative, the
defendant official is entitled to summary judgment. We are
permitted to address the two prongs of qualified immunity in
either order. Pearson, 555 U.S. at 236. With this background, we
now turn to the facts presented by the record.
No. 13-3121                                                   13

                               2.
    Mr. Gibbs claims that, by arresting him for disorderly
conduct, Officer Lomas violated his Fourth Amendment right
to be free from unreasonable seizures. “‘False arrest’ is short-
hand for an unreasonable seizure prohibited by the Fourth
Amendment.” Gonzalez v. Vill. of W. Milwaukee, 671 F.3d 649,
655 (7th Cir. 2012). Because the presence of probable cause
makes a warrantless arrest reasonable under the Fourth
Amendment, “the existence of probable cause is an absolute
defense to a § 1983 claim for false arrest.” Gutierrez v. Kermon,
722 F.3d 1003, 1007 (7th Cir. 2013). Accordingly, Officer Lomas
submits that the record establishes that she had probable cause
to arrest Mr. Gibbs for disorderly conduct. We must evaluate
that submission.
    “An officer has probable cause to make an arrest only when
the facts and circumstances within his knowledge and of which
he has reasonably trustworthy information are sufficient to
warrant a prudent person in believing that the suspect has
committed an offense.” Reher v. Vivo, 656 F.3d 772, 776 (7th Cir.
2011). In making this assessment, we ask whether, given the
“totality of the circumstances,” a reasonable officer would
believe that the suspect had committed a crime. Jones v. City of
Elkhart, Ind., 737 F.3d 1107, 1114 (7th Cir. 2013) (internal
quotation marks omitted). “We do not consider the subjective
motivations of the officer.” Id. Where, as here, part of the
officer’s probable cause analysis is based on an informant’s tip,
we have stated that “as long as a reasonably credible witness
or victim informs the police that someone has committed a
crime, or is committing[] a crime, the officers have probable
14                                                              No. 13-3121

cause.” Matthews v. City of E. St. Louis, 675 F.3d 703, 706–07 (7th
Cir. 2012) (internal quotation marks omitted).
    Our present task, therefore, is to determine whether the
totality of the circumstances, as known to Officer Lomas at the
time she arrested Mr. Gibbs, gave her probable cause to believe
that Mr. Gibbs had committed the crime of disorderly conduct.
At the time that Mr. Gibbs was handcuffed and placed in the
back of the police vehicle,17 Officer Lomas knew the following,
based on the call from dispatch and her personal phone
conversation with Mrs. Gruchow: (1) Mrs. Gruchow had called
dispatch to report a man driving through Madison with what
looked like a black handgun; (2) Mrs. Gruchow saw the man
holding the gun near his head, pointed at the roof of his car,
while stopped at a red light; (3) the man was driving “badly”
and had accelerated quickly from the red light; (4) while
driving, the man raised the gun and pointed it at the roof of his
car a second time; (5) the man had not threatened anyone or
anything with the gun; (6) the man parked at Dexter’s Pub and
may have entered the bar armed; (7) the Gruchows had


17
   As a preliminary matter, we note that both parties assume that there was
an arrest as opposed to an investigatory detention. The district court
proceeded on the same basis. Although neither the parties nor the district
court identified, with any specificity, the point at which an arrest took
place, the parties appear to assume that the arrest occurred when Mr. Gibbs
was handcuffed and placed in the back of a police vehicle. See Appellee’s
Br. 7–8 (explaining what Officer Lomas knew at that point in time); Reply
Br. 3–8 (same); cf. Monroe v. Davis, 712 F.3d 1106, 1115 (7th Cir. 2013) (noting
that placing an individual in handcuffs might indicate that a custodial arrest
has occurred). We shall pretermit an extensive discussion of this point
because, in our view, the matter is not outcome determinative in this case.
No. 13-3121                                                    15

provided a detailed description of the man and his vehicle;
(8) a vehicle matching the description was parked at Dexter’s
Pub; (9) a man matching the description exited Dexter’s Pub;
and (10) when confronted by the police officers, the man said
that he owned the relevant vehicle. Mr. Gibbs does not argue
that the Gruchows were unreliable or that they were not
reasonably credible witnesses, nor does he challenge that
Officer Lomas knew the foregoing information at the time of
his arrest. He only challenges the legal significance of the facts
recounted.
   Whether these facts gave Officer Lomas probable cause to
arrest Mr. Gibbs depends on the elements of the crime of
disorderly conduct. See Abbott v. Sangamon Cnty., Ill., 705 F.3d
706, 715 (7th Cir. 2013) (“The existence of probable cause or
arguable probable cause depends, in the first instance, on the
elements of the predicate criminal offense(s) as defined by state
law.”). Wisconsin’s disorderly conduct statute provides:
     (1) Whoever, in a public or private place, engages in
     violent, abusive, indecent, profane, boisterous,
     unreasonably loud or otherwise disorderly conduct
     under circumstances in which the conduct tends to
     cause or provoke a disturbance is guilty of a Class B
     misdemeanor.
       (2) Unless other facts and circumstances that
     indicate a criminal or malicious intent on the part of
     the person apply, a person is not in violation of, and
     may not be charged with a violation of, this section
     for loading, carrying, or going armed with a firearm,
16                                                  No. 13-3121

     without regard to whether the firearm is loaded or
     is concealed or openly carried.
Wis. Stat. § 947.01.
    There is little question that if we analyzed this case solely
under subsection 947.01(1), Officer Lomas would have had
probable cause to arrest Mr. Gibbs. There are two elements to
a typical disorderly conduct offense in Wisconsin: (1) “that the
defendant engaged in violent, abusive, indecent, profane,
boisterous, unreasonably loud, or similar disorderly conduct”
and (2) “that the defendant’s conduct occurred under circum-
stances where such conduct tends to cause or provoke a
disturbance.” State v. Schwebke, 644 N.W.2d 666, 674 (Wis. 2002)
(internal quotation marks omitted). The Wisconsin courts have
interpreted the phrase “similar disorderly conduct” broadly to
mean “conduct of a type not previously enumerated but
similar thereto in having a tendency to disrupt good order and
to provoke a disturbance.” Id. (internal quotation marks
omitted). Certainly, driving quickly down city streets, holding
an unholstered gun—of any kind or with any level of destruc-
tive capacity—in view of other drivers, is conduct with a
tendency to disrupt public peace and cause the public to fear
for its safety. See id. at 676.
    Mr. Gibbs nevertheless argues that Officer Lomas did not
have probable cause to arrest Mr. Gibbs because subsection
947.01(2) provides that absent “facts and circumstances that
indicate a criminal or malicious intent,” an individual cannot
be cited for disorderly conduct “for loading, carrying, or going
armed with a firearm, without regard to whether the firearm
is loaded or is concealed or openly carried.” In Mr. Gibbs’s
No. 13-3121                                                               17

view, Officer Lomas should have realized that this limitation
on the more general language of the statute exempted his
actions from the ambit of the statute.
    Subsection 947.01(2) was enacted in 2011 as part of a larger
act that expanded concealed carry rights in Wisconsin.18 The
Wisconsin courts have not yet answered important questions
about this subsection, such as whether the type of conduct at
issue here is “carrying” or “going armed” or is more properly
categorized as unprotected conduct punishable under the
disorderly conduct statute.19
   The district court held that, in light of subsection 947.01(2),
Officer Lomas could not have had probable cause to arrest
Mr. Gibbs because she had no evidence that Mr. Gibbs was


18
   See Act of July 8, 2011, § 86, 2011 Wis. Sess. Laws 668, 685 (codified at
Wis. Stat. § 947.01(2)) (2011 Wis. Act 35, § 86); see also United States v.
Williams, 731 F.3d 678, 692 (7th Cir. 2013) (Hamilton, J., concurring in part
and concurring in the judgment); Gonzalez v. Vill. of W. Milwaukee, 671 F.3d
649, 654–55 (7th Cir. 2012).


19
    The parties dispute the significance of the fact that the weapons here
were not “firearms” but airsoft weapons. In determining whether she had
probable cause to arrest Mr. Gibbs, we are concerned only with the
reasonableness of Officer Lomas’s arrest of Mr. Gibbs and, in particular,
with the extent of her knowledge. When she arrested Mr. Gibbs, she knew
that an individual had been using what looked like a firearm in an unusual
or alarming way. Public safety demands that officers respond expediently
to such threats as if the weapon were real. Mrs. Gruchow’s discussion with
Officer Lomas certainly provided Officer Lomas with enough information
to believe, reasonably, that the weapon was real.
18                                                  No. 13-3121

acting with a criminal or malicious intent. The court contrasted
Mr. Gibbs’s behavior with other conduct that, in its view,
might amount to disorderly conduct under subsection
947.01(2), such as “if Gibbs had placed his hand on the trigger,
or had pointed the gun at someone or something besides the
roof of his own car, or had done anything at all that could
reasonabl[y] be construed by an observer as any sort of
attempt to hurt himself or to threaten others.”20 Ultimately, the
district court held that “the facts known to Officer Lomas at the
time she took Gibbs into custody would not lead a reasonable
person to believe that Gibbs had violated the newly-amended
disorderly conduct statute.”21 It went on to hold that “it would
have been apparent to a reasonable officer that Officer Lomas
had no reasonable basis for arresting Gibbs” and was therefore
not entitled to qualified immunity.22 Whether the Supreme
Court of Wisconsin would take the same view of the scope of
the statute is open to serious question.
    We think it would be imprudent to base our decision on
speculation about the appropriate scope of the Wisconsin
statute. In our view, the second section of the disorderly
conduct statute poses significant interpretative problems that
are best answered by the Supreme Court of Wisconsin.


20
     R.23 at 10.


21
     Id.


22
     Id. at 15–16.
No. 13-3121                                                                 19

Including the conduct at issue here within the scope of subsec-
tion 947.01(2) would no doubt have significant ramifications on
issues of state and municipal governance in matters of public
safety. In this age of “road rage” and similar motorist misbe-
havior, an individual’s driving around at a high speed while
holding an unholstered weapon in plain view of other motor-
ists raises serious issues of public safety. Whether such activity
constitutes merely “carrying[] or going armed” should be
decided, if at all possible, by a state court far more familiar
with the exigencies of state and local governance and far more
familiar with the legislative practice of its state. If it were
necessary to construe the problematic statutory language in
order to resolve this case, we well might consider using the
certification privilege accorded to us by the Wisconsin legisla-
ture.23 However, such a necessity is not upon us since the
second prong of the established qualified immunity analysis
affords a solid basis for decision. “[I]t is apparent that the


23
    Wis. Stat. § 821.01 (“The supreme court may answer questions of law
certified to it by the supreme court of the United States, a court of appeals
of the United States or the highest appellate court of any other state when
requested by the certifying court if there are involved in any proceeding
before it questions of law of this state which may be determinative of the
cause then pending in the certifying court and as to which it appears to the
certifying court there is no controlling precedent in the decisions of the
supreme court and the court of appeals of this state.”); cf. Cir. R. 52(a)
(“When the rules of the highest court of a state provide for certification to
that court by a federal court of questions arising under the laws of that state
which will control the outcome of a case pending in the federal court, this
court, sua sponte or on motion of a party, may certify such a question to the
state court in accordance with the rules of that court, and may stay the case
in this court to await the state court’s decision of the question certified.”).
20                                                  No. 13-3121

alleged right at issue [was] not clearly established” at the time
Officer Lomas acted. Catlin v. City of Wheaton, 574 F.3d 361, 365
(7th Cir. 2009). We have stated:
     The relevant inquiry in determining whether a right
     is clearly established is whether it would have been
     clear to a reasonable officer that his conduct was
     unlawful in the situation the officer confronted.
     Where the law is open to interpretation, qualified
     immunity protects police officers who reasonably
     interpret an unclear statute.
Reher, 656 F.3d at 775 (citation omitted). As we noted in Abbott,
705 F.3d at 714, “[t]he probable-cause standard inherently
allows room for reasonable mistakes.” See Brinegar v. United
States, 338 U.S. 160, 176 (1949). Here, we deal with the question
in the context of a false arrest suit where the defendant officer
has the added layer of protection of qualified immunity. In this
situation, we ask whether a reasonable police officer in the
defendant’s shoes could have believed that probable cause
existed.
    We are convinced that Mr. Gibbs did not meet his burden
of refuting Officer Lomas’s qualified immunity defense either
by “identifying a closely analogous case or by persuading the
court that the [officer’s] conduct [wa]s so egregious and
unreasonable that, notwithstanding the lack of an analogous
decision, no reasonable officer could have thought [s]he was
acting lawfully.” See Abbott, 705 F.3d at 723–24. Instead of
identifying an analogous case, Mr. Gibbs—like the district
court—points to an informal Advisory Memorandum by the
Wisconsin Attorney General entitled, “The Interplay Between
No. 13-3121                                                       21

Article I, § 25 Of The Wisconsin Constitution, The Open Carry
Of Firearms And Wisconsin’s Disorderly Conduct Statute, Wis.
Stat. § 947.01.” Memorandum from J.B. Van Hollen, Attorney
Gen., to Wis. Dist. Attorneys, Deputy Dist. Attorneys &
Assistant Dist. Attorneys (Apr. 20, 2009), available at
http://www.doj.state.wi.us/sites/default/files/2009-news/final-
open-carry-memo-2009.pdf. The Advisory Memorandum
states that “the mere open carrying of a firearm by a person,
absent additional facts and circumstances, should not result in
a disorderly conduct charge.” Id. at 1, ¶ 1. The Advisory
Memorandum is not, of course, the sort of definitive statement
of the law by the courts that would make a constitutional
violation “clearly established.”24 More importantly, the
memorandum fails to support Mr. Gibbs’s position because it
specifically acknowledges, “Even when an act facially resem-
bles the exercise of a protected right, the facts and circum-
stances of a case may give rise to a disorderly conduct charge.”
Id. at 3, ¶ 5. Notably, the memorandum provided an example:
“[A] person openly carrying a holstered handgun on his own
property while doing lawn work should not face a disorderly
conduct charge. If, however, a person brandishes a handgun in
public, the conduct may lose its constitutional protection.” Id.
at 4, ¶ 7. Far from clearly establishing that Mr. Gibbs’s conduct
was not illegal, the memorandum leaves open the distinct
possibility that Mr. Gibbs’s conduct here might be character-




24
     The Advisory Memorandum was published in 2009, well before
subsection 947.01(2) was enacted. Therefore, its relevancy to the new
disorderly conduct statute is questionable.
22                                                    No. 13-3121

ized as the equivalent of “brandish[ing] a handgun in public”
and therefore constitute disorderly conduct. Id.
    As we have noted earlier, the mere addition of subsection (-
2) to section 947.01 hardly makes the law “clearly established.”
The Wisconsin courts have yet to interpret key terms of the
subsection, such as “going armed with” and “criminal or
malicious intent.”
   Nor is this the sort of case where Officer Lomas’s conduct
was so egregious as to be recognized universally by law
enforcement officers as unlawful. Rather, as we have suggested
earlier, a reasonable police officer—indeed, a reasonable
court—could believe that, under the facts described above, far
more than the statutorily exempted activity of “loading,
carrying, or going armed with a firearm” was taking place.
Despite Mr. Gibbs’s repeated contentions that he was “just
driving,” he obviously was doing more than that.
    Indeed, his conduct also was sufficient for a reasonable
officer to conclude—in the absence of any guidance from the
Wisconsin courts—that a criminal or malicious intent was
present, thus removing any protection that subsection 947.01(2)
would otherwise have given Mr. Gibbs. For example, Wiscon-
sin state law prohibits firing a gun from a vehicle, see Wis. Stat.
§§ 167.31(2)(c), 941.20(3), and an officer who receives a tip that
an individual was visibly handling an unholstered weapon
while speeding may believe reasonably that the individual had
the intent to violate that prohibition. Wisconsin also prohibits
entering a bar with a handgun under most circumstances, see
Wis. Stat. § 941.237(2), and the facts known to Officer Lomas
when she arrested Mr. Gibbs may have suggested that he had
No. 13-3121                                                       23

the intent to violate this statute. Apart from these statutorily
based examples of how the facts of this case may have indi-
cated a specific criminal intent, it is also reasonable to interpret
these facts as indicating a more general malicious intent. Based
on the facts known to Officer Lomas about Mr. Gibbs’s
behavior, it would have taken no more than an adjustment of
his hand position before the gun was pointed out the window
of his vehicle or even at himself. A reasonable officer in Officer
Lomas’s shoes could have interpreted Mr. Gibbs’s conduct as
motivated by an intent to harm himself or others.
    In sum, even if Officer Lomas was mistaken in believing
that she had probable cause to arrest Mr. Gibbs, such a mistake
was reasonable in light of the facts and circumstances of this
case and in light of the undeveloped case law regarding
subsection 947.01(2). Consequently, contrary to the conclusion
of the district court, Officer Lomas was entitled to qualified
immunity for her arrest of Mr. Gibbs.


                                 3.
    Mr. Gibbs also contends that the search of his car by Officer
Lomas violated his Fourth Amendment rights. The Fourth
Amendment prohibits, with limited exceptions, warrantless
searches. See Arizona v. Gant, 556 U.S. 332, 338 (2009). However,
“[a]mong the exceptions to the warrant requirement is a search
incident to a lawful arrest.” Id.; Peals v. Terre Haute Police Dep’t,
535 F.3d 621, 627 (7th Cir. 2008). Under the search-incident-to-
arrest exception, law enforcement may search a vehicle
“incident to a recent occupant’s arrest … (1) if the arrestee is
within reaching distance of the vehicle during the search, or
24                                                                No. 13-3121

(2) if the police have reason to believe that the vehicle contains
evidence relevant to the crime of arrest.” Davis v. United States,
131 S. Ct. 2419, 2425 (2011) (internal quotation marks omitted).
    Here, the search was conducted because Officer Lomas had
reason to believe that the vehicle contained evidence relevant
to the crime of arrest—namely, the weapon that Mr. Gibbs had
been holding while driving through Madison. Mr. Gibbs’s
entire argument regarding the search is that because the arrest
violated his clearly established constitutional rights, the search
also violated those rights. He makes no other arguments. Since
we have held that a reasonable officer in Officer Lomas’s shoes
could have determined that she had the authority to arrest
Mr. Gibbs, it follows that such a reasonable officer also could
conclude that she had the authority to search the vehicle
incident to that arrest.25
   Consequently, we hold that the search of Mr. Gibbs’s
vehicle for the weapon involved in the offense of arrest did not
violate Mr. Gibbs’s clearly established rights, and Officer


25
    An alternative basis for finding Officer Lomas’s actions to be within the
bounds of the Constitution is the “automobile exception” to the Fourth
Amendment’s warrant requirement. Officer Lomas could search Mr. Gibbs-
’s Jeep because she had probable cause to believe that she would find
evidence of illegal activity (the handgun) in the car. See, e.g., Arizona v. Gant,
556 U.S. 332, 347 (2009); United States v. Ross, 456 U.S. 798, 806–07, 825
(1982); Carroll v. United States, 267 U.S. 132, 149, 153–56 (1925); United States
v. Washburn, 383 F.3d 638, 641 (7th Cir. 2004) (recognizing that the
“automobile exception” to the Fourth Amendment’s warrant requirement
allows “a warrantless search of a vehicle to be conducted so long as there
is probable cause to believe it contains contraband or evidence of illegal
activity”).
No. 13-3121                                                   25

Lomas is entitled to immunity from suit for her search of the
vehicle.


                          Conclusion
    We find it unnecessary to decide whether Officer Lomas
violated Mr. Gibbs’s constitutional rights to be free from arrest
for disorderly conduct and to be protected against a search
incident to that arrest because any constitutional rights
implicated were not clearly established at the time of Officer
Lomas’s actions. Therefore, Officer Lomas was entitled to
qualified immunity, and the district court erred in denying her
motion for summary judgment. Accordingly, we reverse the
decision of the district court and remand for further proceed-
ings consistent with this opinion. Officer Lomas may recover
her costs in this court.
                                REVERSED and REMANDED
