Miguel Gutierrez v. Michael Kermon
2013 U.S. App. LEXIS 14101
| 7th Cir. | 2013Background
- On March 8, 2009 Officer Michael Kermon encountered Miguel Gutierrez walking near a house that had been the subject of a dispatch reporting a fight; Kermon stopped his car, exited with his gun drawn, and ordered Gutierrez to stop.
- Gutierrez (nonmovant) says he did not know Kermon was an officer, was carrying a golf club for protection, and was immediately pepper‑sprayed, handcuffed, kicked, and arrested; he denies being unsteady or intoxicated.
- Kermon says Gutierrez appeared disheveled, agitated, had red/watery eyes, displayed an unsteady gait, refused commands, and actively resisted being handcuffed.
- Police charged Gutierrez with public intoxication and resisting arrest; a state magistrate later ruled the initial stop unlawful and the charges were dropped.
- In § 1983 suit the district court granted summary judgment to Kermon on the Terry (reasonable‑suspicion) claim but denied summary judgment on the false‑arrest/probable‑cause claim and found disputed facts precluded qualified immunity.
- Kermon appealed the denial of qualified immunity; the Seventh Circuit dismissed the interlocutory appeal for lack of jurisdiction because Kermon’s qualified‑immunity argument depended on a genuinely disputed fact (whether Gutierrez was unsteady on his feet).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kermon had probable cause (or arguable probable cause) to arrest Gutierrez for public intoxication | Gutierrez: facts are disputed (no unsteady gait, no odor of alcohol, pepper spray prevented explanation), so no probable cause | Kermon: based on six facts (unsteady gait, disheveled appearance, golf club, agitation, noncooperation, red eyes) a reasonable officer could have (arguably) believed there was probable cause for public intoxication | Appeal dismissed for lack of jurisdiction because Kermon’s qualified‑immunity claim depends on a genuine disputed factual issue (unsteady gait) |
| Whether the denial of qualified immunity is immediately appealable | Gutierrez: denial rests on genuine factual disputes so Johnson v. Jones bars interlocutory review of evidentiary sufficiency | Kermon: there are "undisputed" facts sufficient to show arguable probable cause, so the legal question of qualified immunity is reviewable | Court: where the legal claim hinges on disputed facts, appellate jurisdiction is lacking under Johnson and related precedents |
| Whether the five undisputed facts alone establish arguable probable cause | Gutierrez: five undisputed facts do not, standing alone, show impairment sufficient for public intoxication | Kermon: those facts contribute to probable‑cause analysis (but he relies also on the gait) | Court: the five undisputed facts (disheveled appearance, golf club, agitation, noncooperation, red eyes) only support reasonable suspicion, not probable cause for intoxication |
| Whether appellate court may resolve qualified‑immunity question assuming district court facts | Gutierrez: district court assumed disputed facts; appellate review cannot resolve factual disputes | Kermon: asks court to accept his factual view (including unsteady gait) and decide immunity | Court: cannot accept or resolve disputed factual findings on interlocutory review; appeal must be dismissed for want of jurisdiction |
Key Cases Cited
- Mitchell v. Forsyth, 472 U.S. 511 (collateral‑order doctrine permits immediate appeal of qualified immunity denials)
- Johnson v. Jones, 515 U.S. 304 (no interlocutory appeal to challenge district court’s finding of genuine factual disputes or evidentiary sufficiency)
- Behrens v. Pelletier, 516 U.S. 299 (qualified immunity protects against trial and is collateral)
- Hunter v. Bryant, 502 U.S. 224 (arguable probable cause concept in qualified immunity context)
- Anderson v. Creighton, 483 U.S. 635 (qualified immunity requires reasonable belief that conduct is lawful)
- Pearson v. Callahan, 555 U.S. 223 (qualified immunity framework and order of inquiries)
- White v. Gerardot, 509 F.3d 829 (Seventh Circuit: accept district court’s assumed facts on appeal and jurisdictional limits)
- Abbott v. Sangamon County, 705 F.3d 706 (probable‑cause standard and § 1983 false‑arrest defense)