10 F.4th 725
7th Cir.2021Background
- Police received a dispatch of two men who had returned to the scene of a fight "with guns." Officers Ferrell and Wenzel located Jerry Smith; he fled and they chased him.
- Officers observed a bulky L-shaped object in Smith’s left pocket and saw him using his left hand to hold it while running; they reasonably believed he had a gun.
- Smith hid behind one of two waist-high AC units on a parking-garage roof; Ferrell and Wenzel ordered him repeatedly (~25–30 commands over ~90 seconds) to show hands and get down, but Smith did not comply consistently.
- Officers Finkley and Stahl arrived, believed Smith was armed or had access to a gun, approached with guns drawn, and in the ensuing ~10 seconds on the roof (especially the last ~4 seconds) Smith moved downward; the officers fired three shots. No gun was found; Smith was seriously injured.
- Smith sued under 42 U.S.C. § 1983 for excessive force. The district court denied the officers’ summary-judgment motion (including qualified immunity). The officers appealed the denial of qualified immunity; the Seventh Circuit dismissed the interlocutory appeal for lack of jurisdiction because key factual disputes integral to qualified immunity remain unresolved.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether officers violated the Fourth Amendment by using deadly force | Smith: he was surrendering/complying (leaning to get down) and posed no immediate threat | Officers: Smith was suspected of being armed, hid by AC unit, moved toward area where a gun could be retrieved and actively resisted | Court: factual disputes about Smith’s final movements and threat level are material and unresolved; cannot decide on interlocutory appeal |
| Whether officers are entitled to qualified immunity | Smith: shooting a surrendering/unarmed or waning-threat suspect violates clearly established law | Officers: a reasonable officer could have believed deadly force necessary; law not clearly established for these facts | Court: qualified-immunity analysis inseparable from disputed facts; dismissal for lack of appellate jurisdiction (defense preserved for later) |
| Whether the denial of qualified immunity is appealable now (Johnson v. Jones v. Plumhoff tension) | Smith: denial rested on genuine factual disputes so not appealable under Johnson | Officers: Plumhoff controls because bodycam video preserves facts and raises legal issues suitable for immediate review | Court: majority — Johnson bars appellate review because resolution requires weighing contested facts; dissent argues Plumhoff allows review but majority dismisses for lack of jurisdiction |
| Whether bodycam video conclusively resolves contested facts | Smith: district court read video as supporting his surrendering account | Officers: some of Smith’s factual claims are blatantly contradicted by video (e.g., earlier noncompliance, stepping toward officers) | Court: video resolves some disputes but the crucial last seconds (whether lunging for a gun or getting down) remain ambiguous; those unresolved facts preclude interlocutory review |
Key Cases Cited
- Scott v. Harris, 550 U.S. 372 (video evidence can "blatantly contradict" a plaintiff's account and foreclose factual disputes)
- Johnson v. Jones, 515 U.S. 304 (orders denying summary judgment insofar as they turn on evidence sufficiency are not immediately appealable)
- Mitchell v. Forsyth, 472 U.S. 511 (qualified immunity is an immunity from suit and generally immediately appealable)
- Plumhoff v. Rickard, 572 U.S. 765 (distinguishes Johnson where video preserves historical facts and appellate courts may resolve legal qualified-immunity questions)
- Graham v. Connor, 490 U.S. 386 (excessive-force reasonableness standard)
- Tennessee v. Garner, 471 U.S. 1 (deadly force to seize a fleeing suspect permissible only if suspect poses threat of serious physical harm)
- Ashcroft v. al-Kidd, 563 U.S. 731 (qualified immunity protects all but the plainly incompetent or those who knowingly violate the law)
- Weinmann v. McClone, 787 F.3d 444 (clearly established prong requires particularized precedent in excessive-force context)
- Strand v. Minchuk, 910 F.3d 909 (factual disputes about timing/circumstances surrounding shooting can preclude interlocutory review)
- Gant v. Hartman, 924 F.3d 445 (video that does not irrefutably resolve key factual disputes leaves immunity denial nonappealable)