In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2965

Horace E. Smith, II, M.D.,

Plaintiff-Appellant,

v.

City of Chicago, a municipal corporation,
Milton M. Scott, employee of the Police
Department of the City of Chicago,
a municipal corporation and Randall Darlin,
employee of the Police Department of the
City of Chicago, a municipal corporation,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 763--Harry D. Leinenweber, Judge.

Argued May 31, 2000--Decided March 6, 2001



  Before Flaum, Chief Judge, and Bauer and
Harlington Wood, Jr., Circuit Judges.

  Bauer, Circuit Judge. Smith sued defendants, in
relevant part, for unreasonable search and
seizure, use of excessive force, and battery,
arising from a May 1996 traffic stop. After some
to and fro-ing, the case is before us again, so
a thumbnail sketch of the facts and case history
is needed.

  The district court entered summary judgment in
defendants’ favor on all counts, and Smith
appealed. Defendants motioned this Court for a
limited remand to allow the district court to
listen to an audio tape recording of the
conversation between the officers and the
dispatcher during this incident. A transcript of
the conversation was already part of the record.
The tape became critical, however, because a
dispute arose as to whether the officers had
played their siren while following Smith. Smith
is adamant that he did not hear the siren. He
claims that he did not know that the men in the
car trailing him were police officers because
they were plain-clothed and drove an unmarked
car. The officers contend that they followed
Smith after he had violated a traffic law and
played the siren, but that Smith refused to pull
over. Smith, although driving within the speed
limit, did not stop for twelve blocks until
marked police cars pulled in front of him. On
December 2, 1999, we granted defendants’ motion,
ordering the district court to consider: (1)
whether a copy of the tape had been tendered to
it; and (2) if a genuine issue of material fact
existed as to whether the officers played their
siren prior to the investigative stop.

  On February 24, 2000, defendants filed a
memorandum in light of our remand order asking
the district court to consider the tape in
deciding on summary judgment. The defendants
noted that Smith objected to its admission
because there were gaps and pauses in it and it
was unclear whose siren was audible on the tape.
In response, defendants pointed to the following:
(1) an affidavit signed by Officer Darlin, one of
the arresting officers, swearing that he had
listened to the tape, that the voice on it was
his, and that the siren heard on it sounded like
the one from the car on that day; (2) an
affidavit signed by Thomas Dugan, an employee of
the City of Chicago Office of Emergency
Communications, swearing that the office records
all conversations between police and dispatchers
and maintains these tapes in its ordinary course
of business, that he had listened to the tape,
that the office had made the tape from a master
tape in its regular business practice, and that
the recording had no "gaps" or "unexplained
pauses," and that the siren had to have come from
the officers’ car since it was only audible when
the officers spoke; and (3) deposition testimony
of Officer Scott, another one of the arresting
officers, recounting that Darlin had activated
the siren while following Smith and that it
remained on for twelve blocks. Defendants argued
that Smith offered no evidence creating a genuine
issue of material fact as to whether the siren
was played. The only evidence Smith asserted was
that he did not hear the siren. On March 1, 2000,
Smith filed a memorandum in response. Smith
argued that the tape was inadmissible because it
had not been tendered to the court, the tape had
gaps and pauses, and no foundation or
authentication of the tape was presented.
  The district court’s order, issued on March 9,
2000, which strictly adhered to the language of
our December 2nd order, found that the tape had
not been tendered to the court, and thus could
not be considered as evidence. However, based on
the depositions and affidavits, the district
court found that the siren had been played. The
district court concluded that Smith’s mere
assertion to the contrary was insufficient to
raise a genuine issue of material fact.
Therefore, the district court again granted
summary judgment in defendants’ favor. Smith
appealed.

  Upon reading the district court’s order, we
realized the ambiguity in our December 2nd order
and set out to clarify it. On June 27, 2000, we
issued an order directing the district court to
supplement the record with the tape, listen to
it, and redetermine the grant of summary
judgment. Pursuant to this clearer directive, the
district court, on October 12, 2000, issued an
order stating that it had supplemented the record
with the tape and listened to it. The court noted
that the tape contained a recording of the
conversation between the officers and dispatcher
regarding a car that refused to pull over.
Throughout the tape, a siren is clearly audible
as the officers speak. (We too have listened to
the tape and agree with the district court that
a siren is clearly playing as the officers are
speaking.) The district court noted that the
defendants had offered the tape as authentic and
had indicated that the siren was theirs. The
court again found that no genuine issue of
material fact existed since Smith merely asserted
that he did not hear the siren and offered no
evidence that the tape was not what the
defendants claimed it to be. Therefore, the
district court decided that summary judgment was
still warranted in defendants’ favor.

  Today we consider two issues raised by Smith.
First, he raises questions about the tape’s
authenticity and admissibility, and second, he
alternatively argues that even if the tape was
properly admissible, it did not eliminate
disputes as to genuine issues of material fact.

  I. Admissibility and Authenticity of the Audio
Tape Recording

  In granting summary judgment, a "’court may
consider any material that would be admissible or
usable at trial,’ including properly
authenticated and admissible documents or
exhibits." Woods v. City of Chicago, 234 F.3d
979, 988 (7th Cir. 2000) (quoting Aguilera v.
Cook County Police & Corrs. Merit Bd., 760 F.2d
844, 849 (7th Cir. 1985) and citing Martz v.
Union Labor Life Ins. Co., 757 F.2d 135, 138 (7th
Cir. 1985)). Audio tape recordings are generally
admissible as evidence whether in original or
duplicate form. See United States v. Carrasco,
887 F.2d 794, 802 (7th Cir. 1989). However, a
duplicate may be inadmissible if "a genuine
question is raised as to the authenticity of the
original . . . ." Fed. R. Evid. 1003(1). In
determining authenticity we follow Fed. R. Evid.
901(a), which requires "evidence sufficient to
support a finding that the matter in question is
what its proponent claims." United States v.
Boyd, 208 F.3d 638, 644 (7th Cir. 2000). Beyond
these basic parameters, "we have eschewed any
formalistic approach to the admission of tape
recordings or copies thereof." Stringel v.
Methodist Hosp. of Indiana, Inc., 89 F.3d 415,
420 (7th Cir. 1996).

  To authenticate a tape in a criminal case the
government must prove by clear and convincing
evidence that the tape is a true, accurate, and
authentic recording of the conversation, at a
given time, between the parties involved. See id.
We have assumed, but not decided, that the
proponent in a civil case for admission of a tape
bears the same burden. See id. We decline to
squarely decide the question again today, resting
on the same assumption. Clear and convincing
evidence of the truth, accuracy, and authenticity
of a tape may be shown in two ways. The proponent
may show the tape’s chain of custody. See United
States v. Brown, 136 F.3d 1176, 1181 (7th Cir.
1998). If no proof as to chain of custody is
rendered, the tape may be admissible if a
foundation as to the "’accuracy and
trustworthiness of the evidence is laid.’" Id.
(quoting United States v. Craig, 573 F.2d 455,
478 (7th Cir. 1977)). "In this circuit, the
recollections of eyewitnesses to the events in
question are sufficient to establish a foundation
for the admission of tapes." Id. at 1182
(citations omitted).

  Our second remand ordered the district court to
admit the tape into the record and consider it in
its decision. In so doing, the district court
found that the tape was authentic and admissible
because the proponents laid a proper foundation.
They did so by submitting both Darlin’s
affidavit, which included eyewitness statements
identifying his voice and siren, and Dugan’s
affidavit, which included chain of custody
statements about how the tape was recorded and
handled in the office. Thus, based on these
attestations, the district court appropriately
shifted the burden to Smith to show
inauthenticity, because once the foundation is
laid by clear and convincing evidence, the
opponent of admission has the burden to rebut.
See United States v. Blakey, 607 F.2d 779, 787
(7th Cir. 1979). The district court properly
found that Smith presented no evidence "to
dispute that the recording is what the defendants
claim[ed] it to be." Smith’s only rebuttal is
that he did not hear the siren, therefore there
may have been a problem with the fidelity of the
siren system or the siren was not played. Smith’s
contentions are merely "general, conclusory
allegations based upon mere suspicions," which
are not enough to rebut the proponent’s
foundation. Id. (quotation omitted). Stated
another way, "[m]erely raising the possibility
(however hypothetical) of tampering is not
sufficient to render evidence inadmissible."
Brown, 136 F.3d at 1182 (citation omitted).
Therefore, it was appropriate to admit the tape
in determining summary judgment, and the district
court correctly found that the tape was authentic
and admissible. Smith raises an assortment of
other arguments regarding the authenticity and
admissibility of the tape, however, we decline to
address them for they are without merit.


 II. Review of the Summary Judgment Grant

  We review the district court’s grant of summary
judgment de novo, construing all facts and
drawing all reasonable inferences from the record
in the light most favorable to the nonmovant.
Summary judgment is proper when the record
reveals no genuine issue of material fact and
that the movant is entitled to judgment as a
matter of law. See Fed. R. Civ. P. 56(c).


   A. Unlawful Search and Seizure Claim

  Smith claims that the officers violated his
rights by searching him and the car’s glove box,
passenger compartment, and trunk. The district
court held that the defendants were entitled to
qualified immunity because a reasonable person
would not find that the officers violated Smith’s
clearly established constitutional rights. Police
officers are entitled to qualified immunity for
actions taken during a stop or arrest "’insofar
as their conduct does not violate clearly
established statutory or constitutional rights of
which a reasonable person would have known.’"
Rice v. Burks, 999 F.2d 1172, 1174 (7th Cir.
1993) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). Qualified immunity is
dissolved, however, if a plaintiff points to a
clearly analogous case establishing a right to be
free from the specific conduct at issue or when
the conduct is so egregious that no reasonable
person could have believed that it would not
violate clearly established rights. See Saffell
v. Crews, 183 F.3d 655, 658 (7th Cir. 1999).

  The defendants acquired reasonable suspicion to
conduct an investigatory stop of Smith when they
believed that he had committed a traffic offense
and then would not pull over for twelve blocks
while the officers played their siren. When the
dispatcher misinformed the officers that Smith
had thirteen aliases it was reasonable for the
officers to call Smith’s identity into question.
Furthermore, Smith could not produce proof of
valid insurance for his car. Smith’s arrest was
based on probable cause. Thus, the district court
found that it was not contrary to established law
for the officers to conduct a search incident to
the arrest. The district court found, however,
that the search of the trunk may have been
unlawful if the officers did not have probable
cause to believe the trunk contained contraband
or evidence of a crime, but held that the law was
not clear at the time of the incident such that
a reasonable official would not have known that
he or she may have been violating a clearly
established right. See New York v. Belton, 453
U.S. 454, 460, 460-61 n.4 (1981) ("When a
policeman has made a lawful custodial arrest of
the occupant of an automobile, he may, as a
contemporaneous incident of that arrest, search
the passenger compartment of that automobile. .
. . Our holding encompasses only the interior of
the passenger compartment of an automobile and
does not encompass the trunk."); United States v.
Patterson, 65 F.3d 68, 70 (7th Cir. 1995) ("[A]
vehicle may be searched without a warrant if
there is probable cause to believe the car
contains contraband or evidence of a crime. A
search of an automobile based on probable cause
lawfully extends to all parts of the vehicle in
which contraband or evidence could be concealed,
including closed compartments and trunks.")
(quotations and citations omitted).

  Smith’s main contention is that such a search
was unlawful because he committed a minor traffic
violation. This contention is wholly wrong
because it ignores many facts, namely Smith’s
refusal to pull over, his invalid proof of
insurance, and the thirteen aliases he was said
to have. All of these facts combined gave the
officers probable cause to arrest him and conduct
a search incident to that arrest. Therefore, the
officers did not violate Smith’s clearly
established rights.

  Smith also contends that a search was
unnecessary because "a reasonable officer would
have immediately known that he had pulled a
physician and minister from his vehicle, and that
Dr. Smith was not a threat and posed no danger."
We disagree. Despite the fact that Smith is a
minister and physician, the officers had probable
cause to arrest and search him. Even though Smith
was driving a church-owned car and had hospital
records in the backseat, the officers were
reasonable in disregarding these clues as to
Smith’s identity since they were informed, albeit
incorrectly, by the dispatcher that he had
thirteen aliases. Besides, to hold that the
officers should have stopped searching Smith
because he is a minister or physician would be
sanctioning stereotyping of the most pernicious
sort. We agree with, and affirm, the district
court’s decision that the defendants are entitled
to qualified immunity and summary judgment on
this claim.


   B. Excessive Force Claim

  Whether an officer used excessive force during
an arrest is determined under the "objective
reasonableness" standard. We assess whether an
officer’s actions were objectively reasonable
"’in light of the facts and circumstances
confronting them, without regard to their
underlying intent or motivation.’" Graham v.
Connor, 490 U.S. 386, 397 (1989). We consider
"the severity of the crime at issue, whether the
suspect pose[d] an immediate threat to the safety
of the officers or others, and whether he [was]
actively resisting arrest or attempting to evade
arrest by flight." Id. at 396. We balance the
amount of force used in relation to the danger
posed to the community or to the arresting
officers. See Jacobs v. City of Chicago, 215 F.3d
758, 773 (7th Cir. 2000).

  Smith asserts that he did not commit a traffic
violation, he did not know that the men following
him were police officers, and he did not hear the
siren. However, these factual disputes are of no
matter because under this standard we consider
what happened from an officer’s point of view and
assess its reasonableness objectively. The
officers’ actions in this case were objectively
reasonable. From the officers’ vantage point,
Smith committed a traffic violation, whereupon
they followed him and played their siren
(confirmed by the tape) to signal him to pull
over, which Smith did not do for twelve blocks.
When Smith was finally stopped by marked police
cars, the officers pulled Smith out of the car,
pinned his arms behind his back, slammed him
against the hood of his car, and handcuffed him.
A reasonable officer would have thought that
Smith was trying to flee, thereby justifying the
use of a higher degree of force to protect the
community and the officers than that needed for
someone who committed only a minor traffic
violation. However, the officers’ use of force
here was not high, let alone excessive. The
factual disputes raised by Smith are not material
to his substantive excessive force claim as they
rest upon his view of the incident. Not all
factual disputes warrant the denial of summary
judgment; only disputes as to facts material to
the substantive claim require resolution by
trial. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1985). Since any factual
disputes are not material to the substantive
claim, we affirm the district court’s grant of
summary judgment on this claim.
    C. Battery Claim

  A battery occurs when one "intentionally or
knowingly without legal justification and by any
means, (1) causes bodily harm to an individual or
(2) makes physical contact of an insulting or
provoking nature with an individual." 720 ILCS
5/12-3(a). A public employee is immune from
liability while enforcing the law unless their
acts are willful and wanton. See 745 ILCS 10/2-
202. Conduct is willful and wanton when it "shows
an actual or deliberate intention to cause harm
or which, if not intentional, shows an utter
indifference to or conscious disregard for the
safety of others or their property." 745 ILCS
10/1-210.

  The district court held that the evidence did
not support a finding that Darlin’s actions in
effectuating the arrest were willful and wanton.
The court reasoned that pulling a suspect from a
car, pushing him against the car, and pinning his
arms behind his back to handcuff him were all
reasonable actions to take when arresting a
potentially dangerous suspect. While ostensibly
not pleasant, being handcuffed in this manner
does not rise to the level of willful and wanton
conduct. While determining whether one’s actions
are willful and wanton is a question of fact, the
court determined that Smith’s factual claims were
insufficient to support his claim. We agree with
the district court’s grant of summary judgment on
this basis.

  Therefore, we find the admission of the audio
tape recording appropriate and AFFIRM the grant of
summary judgment in defendants’ favor on all
counts.
