William Gerhartz v. David Richert
2015 U.S. App. LEXIS 3541
| 7th Cir. | 2015Background
- On Feb. 16, 2006 Gerhartz crashed his vehicle; paramedics and officers suspected intoxication and he was transported to a hospital unconscious.
- Sergeant Tyson told Deputy Richert that a bartender/first responder had served Gerhartz multiple beers and that Gerhartz admitted using marijuana that night; paramedics also smelled alcohol.
- Deputy Richert ordered a warrantless evidentiary blood draw under Wisconsin’s implied consent regime; blood was drawn ~2 hours after the accident and later tested .243 g/100 ml.
- Gerhartz was criminally convicted for injury by intoxicated use and OWI; he then sued under 42 U.S.C. § 1983 claiming the warrantless blood draw violated the Fourth Amendment.
- The district court granted summary judgment for the officers, finding exigent circumstances based on alcohol dissipation; it denied Gerhartz’s Rule 59(e) motion to alter judgment after McNeely.
- On appeal the Seventh Circuit affirmed, holding the officers entitled to qualified immunity because the law was not clearly established pre-McNeely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether natural dissipation of alcohol alone created exigent circumstances to justify a warrantless blood draw | Gerhartz: McNeely requires case‑by‑case inquiry; district court incorrectly applied per se exigency | Officers: dissipation of alcohol created exigency justifying warrantless blood draw | Court: McNeely rejects per se rule; but resolution unnecessary because of qualified immunity analysis |
| Whether Gerhartz waived challenge to exigency by not opposing defendants’ summary judgment argument | Gerhartz: challenge preserved via Rule 59(e) and district court’s consideration | Officers: failure to respond waived the issue | Court: not waived — district court considered issue on Rule 59(e), so preserved for appeal |
| Whether officers are entitled to qualified immunity for ordering the warrantless blood draw | Gerhartz: officers violated clearly established Fourth Amendment law | Officers: reasonable reliance on existing law (including Bohling) meant they lacked notice blood draw was unlawful | Court: Granted qualified immunity — before McNeely law was unclear and Wisconsin case law supported a per se exigency view |
Key Cases Cited
- Schmerber v. California, 384 U.S. 757 (recognizing exigency from alcohol dissipation in special facts of case)
- Missouri v. McNeely, 569 U.S. 141 (Fourth Amendment reasonableness for warrantless blood draws requires case‑by‑case totality of circumstances; rejects per se dissipation rule)
- Seiser v. City of Chicago, 762 F.3d 647 (7th Cir. 2014) (officers entitled to qualified immunity pre‑McNeely where law on per se exigency was unsettled)
- Pearson v. Callahan, 555 U.S. 223 (qualified immunity two‑prong framework)
- State v. Bohling, 494 N.W.2d 399 (Wis. 1993) (Wisconsin court endorsing per se exigency from alcohol dissipation)