Alejandro DURAN, Maria C. Duran, Jaquelin Duran, et al., Plaintiffs-Appellees, v. Rudy SIRGEDAS, Anthony Lewandowski, Thomas Kratochvil, et al., Defendants-Appellants.
Nos. 05-4278, 05-4590.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 14, 2006. Decided May 1, 2007.
Barry A. Spevack, Monico, Pavich & Spevack, Chicago, IL, for Defendants-Appellants.
Before Hon. RICHARD D. CUDAHY, Circuit Judge, Hon. DANIEL A. MANION, Circuit Judge and Hon. ILANA DIAMOND ROVNER, Circuit Judge.
ORDER
Nearly eighty plaintiffs sued the Town of Cicero and seventeen Town of Cicero police officers for alleged injuries arising out of a September 2, 2000, incident between the police and the plaintiffs. The district court, 2005 WL 2563023, granted summary judgment in favor of several defendants, but denied other defendants’ motions for summary judgment. Some of the defendants who were denied summary judgment bring this interlocutory appeal arguing that the district court impermissibly considered affidavits filed by the plaintiffs and that they were entitled to qualified immunity. We lack jurisdiction to consider the evidentiary challenges, and affirm in part and reverse in part on the claims of qualified immunity.
I.
On September 2, 2000, Alejandro and Maria Concepcion Duran hosted a party to celebrate their daughter‘s baptism. Guests began arriving in the late afternoon, and by about 8:00 p.m., there were as many as seventy people at the party. The Durans provided their guests with food and beverages, including beer and wine, and some of the guests brought their
Officer Michael McMahon arrived as back-up and he also became involved in arguments with the partygoers. Officer DeCianni again radioed the dispatcher, asking for the department to send a supervisor and other officers because people were “getting unruly.” District Court Opinion at 3. Several other officers arrived and more verbal confrontations occurred between the officers and party guests. The district court noted that “[t]here [was] no dispute that there was shouting and use of profanities by both the officers and the party guests; however, it is disputed whether the officers or the party guests were the aggressors.” District Court Opinion at 3-4.
As the situation escalated, the officers called for more and more reinforcements. The entire on-duty City of Cicero Police Department was dispatched to the disturbance. Dispatch also requested back-up support from the City of Chicago and another nearby city. The officers on the scene directed the party guests into the house, and some of the officers sprayed various partygoers with pepper spray. After additional officers arrived and police obtained control of the situation, the offi-
Juan Carlos Uribe was later released, apparently without being charged, while a misdemeanor complaint was signed against Heriberto Uribe and Joel Uribe for obstructing a peace officer, although those charges were not prosecuted. However, the four Durans were prosecuted on charges of battery and obstructing or resisting a peace officer. Following a jury trial, the Durans were found not guilty.
The Durans, along with approximately seventy other plaintiffs, filed suit against seventeen Town of Cicero police officers and the Town of Cicero, alleging numerous constitutional claims. The defendants filed several motions for summary judgment. The district court granted summary judgment in favor of several of the defendants, but denied other defendants’ motions for summary judgment. Some of the defendants whose motions for summary judgment were denied filed this interlocutory appeal, claiming they are entitled to qualified immunity. Additional details relevant to the individual claims against the appealing defendants follow.
II.
As noted, some of the defendants who were denied qualified immunity filed this interlocutory appeal.2 While generally this court lacks jurisdiction under
In this appeal, the defendants seek to challenge both legal and factual conclusions reached by the district court. We lack jurisdiction to review the latter challenges interlocutorily, but may consider legal challenges to the district court‘s denial of qualified immunity. Leaf v. Shelnutt, 400 F.3d 1070, 1078 (7th Cir. 2005). For each claim appealed, because of the important distinction between legal challenges and challenges to the district court‘s factual conclusions for purposes of this court‘s jurisdiction, we elaborate in detail on the type of challenge presented by the defendants.
A. Claims by individuals pepper sprayed inside the Duran house against Officers DeCianni and Peslak.
The first issue on appeal involves identical claims brought by thirty-four plaintiffs who claim that while they were inside the Duran house, Officers Robert DeCianni and William Peslak sprayed pepper spray inside the house, causing them to suffer ill
In denying Officers DeCianni and Peslak qualified immunity on these claims, the district court determined that the pretrial record supported the conclusion that some of these thirty-four plaintiffs “were ordered or forced inside the house,” and “that everyone who was inside the house was instructed to stay in the house.” The district court also concluded that the pretrial record set forth a genuine issue of fact about whether Officers DeCianni and Peslak sprayed pepper spray into the back door of the Duran house. Additionally, the district court noted that “[a] reasonable jury could conclude from the evidence that the spraying was for the purpose of keeping the plaintiffs at bay inside the house.” Alternatively, the district court stated that “[a]nother conclusion could be that it was a deliberate action intended to cause harm;....” Further, the district court found that “the facts could support a finding that defendants used plainly excessive force by assaulting plaintiffs with pepper spray without justification (when those plaintiffs were confined in the house and not provoking the officers).” These were the district court‘s conclusions as to the facts the record could reasonably support and as to what genuine issues of fact existed. Under Johnson, this court lacks jurisdiction to review those conclusions on interlocutory appeal. Id. at 319-20.
Nonetheless, on appeal, Officer Peslak seeks to challenge the district court‘s ruling that the record supported the conclusion that he sprayed pepper spray inside the house. Specifically, Officer Peslak claims that the district court improperly relied on an affidavit filed by Maria Alicia Moreno. In her affidavit, Moreno attested to seeing Officer Peslak “open the door that enters on the kitchen and spray mace into the kitchen.”4 District Court Opinion at 18. Officer Peslak claims that the district court should have stricken this affidavit because it contradicted the previous testimony Moreno gave in her deposition. Officer Peslak maintains that under Johnson, this court has jurisdiction to analyze an affidavit to determine if it was properly considered by the district court.
In McKinney v. Duplain, 463 F.3d 679 (7th Cir. 2006), this court rejected a similar attempt to side-step the mandate of Johnson. In McKinney, the estate of Michael McKinney sued Officer Duplain, alleging Officer Duplain violated McKinney‘s constitutional rights by using excessive force. In responding to a 911 burglary-in-progress call, Officer Duplain had shot and killed McKinney. Id. at 681-82. Officer Duplain argued that he was entitled to summary judgment because the undisputed facts established that McKinney had charged him and that therefore he was justified in shooting McKinney. Id. at 684. The district court rejected Officer Duplain‘s argument, concluding that the testimony presented by McKinney‘s experts created a factual issue as to whether
Although this court lacks jurisdiction under Johnson to assess the district court‘s review of the factual record, Officers DeCianni and Peslak also present a legal challenge to the district court‘s decision, namely they challenge the district court‘s legal conclusion that the facts, as found to exist by the district court, violate clearly established constitutional norms. We have jurisdiction to review this purely legal question. See Leaf, 400 F.3d at 1078. See also Via v. LaGrand, 469 F.3d 618, 623 n. 2 (7th Cir. 2006) (“[I]f the defendant argues on appeal that he is entitled to qualified immunity no matter how the genuine issue of material fact is resolved, we would have jurisdiction to consider that purely legal question.“)
First, Officers DeCianni and Peslak challenge the district court‘s legal conclusion that the thirty-four plaintiffs located in the Duran house were “seized” for purposes of the Fourth Amendment, claiming instead that the plaintiffs’ claims fall under the Fourteenth Amendment‘s “shock the conscience” standard. A seizure for purposes of the Fourth Amendment can occur when an officer “by means of physical force or show of authority has in some way restrained the liberty of a citizen.” United States v. Mendenhall, 446 U.S. 544, 552 (1980) (internal quote omitted). See Graham v. Connor, 490 U.S. 386, 395 n. 10 (1989) (“A ‘seizure’ triggering the Fourth Amendment‘s protections occurs only when government actors have, by means of physical force or show of authority, in some way restrained the liberty of a citizen.“) (internal quotation omitted). A person is “seized” under the Fourth Amendment “if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Mendenhall, 446 U.S. at 554. The Mendenhall court further explained the circumstances that might indicate a seizure:
[E]ven where the person did not attempt to leave, ... [for instance] the threaten-
ing presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer‘s request might be compelled.
Based on the facts, as found to exist by the district court, we agree that a reasonable jury could conclude that the thirty-four plaintiffs were “seized” for purposes of the Fourth Amendment. As the district court explained, when the officers arrived they told several of the plaintiffs to “get inside the house” and “get the f[-] inside.” District Court Opinion at 23. Additionally, “[a]t the time, there were numerous police officers in the yard, outside the yard, alongside the house, and entering and exiting the house.” District Court Opinion at 23. Moreover, the district court concluded that “[a] reasonable jury could conclude from the evidence that the spraying was for the purpose of keeping the plaintiffs at bay inside the house.” District Court Opinion at 26. Based on this view of the facts, a jury could reasonably conclude that the individuals inside the house were seized.
Officers DeCianni and Peslak respond that some of the plaintiffs were already inside the house and may not have wanted to leave. However, the district court concluded that “there is evidence that everyone who was inside the house was instructed to stay in the house, ... [and][t]he plaintiffs who had already been in the house likely could hear what was going on outside and could see what was happening with the plaintiffs who were ordered inside.” District Court Opinion at 24-25. We agree with the district court in its conclusion that based on this view of the facts “a reasonable person in the plaintiffs’ shoes would not have believed that he or she was free to leave the house.” District Court Opinion at 25.
Officers DeCianni and Peslak counter that “trying to get partygoers to go inside the Duran house, their own houses, or across the street and away from the scene was a sensible safety precaution in the midst of a riot, not a seizure. Police were trying to control the crowds so they would not be running back and forth, getting involved, getting hurt.” Appellant Brief at 20. We agree that it was eminently reasonable for the officers, when confronted with an escalating encounter with some seventy to ninety individuals, to try to disperse and control the crowd by ordering partygoers inside. However, that merely goes to the reasonableness of the seizure, not the initial question of whether Officers DeCianni and Peslak seized the thirty-four plaintiffs ordered to stay in the Duran house. Had the plaintiffs’ only claim been that the officers violated their Fourth Amendment rights by restraining them inside the Duran house, under the facts of this case, as set forth by the district court, there would be no constitutional violation.
The facts, though, as found to exist by the district court, went further: The district court concluded that the “facts could support a finding that defendants used plainly excessive force by assaulting plaintiffs with pepper spray without justification (when those plaintiffs were confined in the house and not provoking the officers).” Thus, the reasonableness of directing and holding partygoers inside the house is not the issue; rather, the issue is whether, in seizing the plaintiffs inside the house, Officers DeCianni and Peslak used excessive force by spraying pepper spray into the house.
Use of excessive force by police officers during a seizure constitutes a Fourth Amendment violation that is actionable under
The officers respond that even if the plaintiffs were seized for purposes of the Fourth Amendment, they are still entitled to qualified immunity on the excessive force claim. “To evaluate a claim of qualified immunity, we engage in a two-step analysis. First, we determine whether the plaintiffs’ claim states a violation of their constitutional rights. Then, we determine whether those rights were clearly established at the time the violation occurred.” Jacobs v. City of Chicago, 215 F.3d 758, 766 (7th Cir. 2000). Unless the plaintiffs prove both prongs, the defendants are entitled to qualified immunity. Id.
In arguing that they are entitled to qualified immunity, the officers maintain that the plaintiffs failed to establish a constitutional violation because none of the plaintiffs claimed to be a target of the pepper spray. However, contrary to the officers’ argument, the thirty-four plaintiffs claim that they were all targets of the pepper spray. In any event, if a police officer intends to inflict injury, without justification, the fact that the officer intentionally targets a large group of individuals, as opposed to a specific individual, is irrelevant.5 Of course, that might not be what happened here, as under one reading of the facts, the officers only intended to spray individuals who were attempting to leave the house after the officers ordered them indoors. See District Court Opinion at 26 (“A reasonable jury could conclude from the evidence that the spraying was for the purpose of keeping the plaintiffs at bay inside the house.“). Given the need for the police to control the increasingly dangerous situation, a reasonable officer could believe it reasonable to use pepper spray to detain inside the house individuals refusing to obey a lawful order. Thus, if it were undisputed that Officers DeCianni and Peslak had sprayed only the individuals attempting to exit the house after they were directed to remain inside, these officers would be entitled to qualified immunity, even if the spray caused discomfort to others.6 See Bublitz, 327 F.3d at 489-91; cf. Clement v. Gomez, 298 F.3d 898, 903-04 (9th Cir. 2002) (holding that officers who
sprayed pepper spray into a cell to stop a fight between two inmates did not violate the Eighth Amendment rights of other inmates who were allegedly injured by the pepper spray).
As noted above, however, in this case, the district court concluded that the “facts could support a finding that defendants used plainly excessive force by assaulting plaintiffs with pepper spray without justification (when those plaintiffs were confined in the house and not provoking the officers).” District Court Opinion at 28. Assaulting citizens who are safely detained without any provocation violates clearly established constitutional principles. See Clash, 77 F.3d at 1048 (stating that “police officers do not have the right to shove, push, or otherwise assault innocent citizens without any provocation whatsoever“); see also Payne v. Pauley, 337 F.3d 767, 780 (7th Cir. 2003) (holding that in 1998, it was clearly established that “it was unlawful to use excessively tight handcuffs and violently yank the arms of arrestees who were not resisting arrest, did not disobey the orders of a police officer, did not pose a threat to the safety of the officer or others, and were suspected of committing only minor crimes“).
Alternatively, Officers DeCianni and Peslak argue that they are entitled to qualified immunity because none of the plaintiffs “claim to have been by the rear door when either of these officers allegedly sprayed.” Whether the plaintiffs were near the rear door, however, is irrelevant if the officers acted unreasonably in spraying the pepper spray at the individuals inside the house and the plaintiffs were injured by the pepper spray. It may well be that many of the plaintiffs did not suffer ill effects from the pepper spray, given that pepper spray may have a limited dispersal range. However, we lack jurisdiction to review the record to determine
In conclusion, under the district court‘s reading of the factual record, Officers DeCianni and Peslak are not entitled to qualified immunity. Therefore, at this stage, we must affirm the district court‘s denial of summary judgment to defendants DeCianni and Peslak on the claims brought by the thirty-four plaintiffs for injuries allegedly caused by Officers DeCianni and Peslak spraying pepper spray into the house.
Before considering the other issues on appeal, we pause to highlight that the principles set forth above apply equally to the remaining claims. Specifically, under Johnson, we lack jurisdiction to review the record to determine whether the genuine issues of fact found to exist by the district court in fact exist. We also lack jurisdiction to consider the defendants’ challenges to the district court‘s evidentiary rulings and consideration of later-filed affidavits. Rather, we may only consider the legal question of whether the facts, as found to exist by the district court, could violate clearly established constitutional norms. Because numerous plaintiffs present distinct claims against multiple defendants, implicating different factual findings by the district court, we discuss the claims, for the most part, individually, even though the same law governs. While this results in some redundancy, given the complexity of this case, for clarity purposes, we prefer to err on the side of repetitiveness.
Next, we consider Gonzalo Duran‘s claims arising from his arrest. First, Gonzalo alleged false arrest claims against Sergeant Krummick and Officers Vitalo, Peslak and DeCianni. Second, Gonzalo claims that Sergeant Krummick and Officers Sirgedas, Vitalo, Peslak and DeCianni used excessive force in arresting him. The defendants respond that they had probable cause to arrest Gonzalo and that they only used as much force as necessary to effectuate the arrest, and accordingly were entitled to qualified immunity. We consider the false arrest and excessive force claims in turn.
1. False Arrest
Gonzalo sued defendants Krummick, Vitalo, Peslak, and DeCianni for false arrest under
a. Sergeant Krummick
In summarizing the facts relating to Sergeant Krummick, the district court stated that Sergeant Krummick claimed that he “was told that Gonzalo Duran had thrown a bottle or can at [DeCianni] and that [DeCianni] wanted him arrested.” District Court Opinion at 70. The district court also stated that “Gonzalo denies that he threw a bottle or can at DeCianni. He also denies that DeCianni ever claimed at the time that he was struck by a bottle or can; rather, he states that DeCianni merely told Krummick that the music was too loud.” District Court Opinion at 70. The district court then concluded that “there are factual issues involved in the reasonableness determination on the false arrest claim,” and that therefore “Krummick‘s motion for summary judgment is denied as to Gonzalo Duran‘s false arrest claim....” District Court Opinion at 71.
As explained above, this court lacks jurisdiction to review the record to determine whether the district court‘s view of the facts is adequately supported by the record evidence. See supra at 108. However, this court has jurisdiction to address the legal question of whether the facts, as set forth by the district court, violate clearly established constitutional norms. See supra at 109-10. In this case, as the district court explained, there are some factual disputes, namely whether Gonzalo threw a bottle or can at Officer DeCianni and whether Officer DeCianni told Sergeant Krummick that Gonzalo had thrown a bottle or can at him, or merely told him the music was too loud. These factual disputes are immaterial, though, because Gonzalo (at least based on the facts set forth by the district court) did not challenge Sergeant Krummick‘s claim that Officer DeCianni told him that he wanted Gonzalo arrested. An officer may reasonably rely on information provided by other officers. Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000). Thus, “[t]he police who actually make the arrest need not personally know all the facts that consti-
b. Officer Vitalo
As to Gonzalo‘s false arrest claim against Officer Vitalo, the district court noted that Officer Vitalo claimed that “[t]he evidence is unrebutted that he was told that Gonzalo Duran threw a can or bottle that hit Officer DeCianni.” However, the district court found that an issue of fact existed because Gonzalo denies that Officer “DeCianni ever claimed at the time that he was struck by a bottle or can; rather he states that DeCianni merely told Krummick that the music was too loud.” District Court Opinion at 76-77. In its summary of the facts, though, the district court also noted that Officer Sirgedas stated that after he “arrived at the Durans’ home, he heard Officer DeCianni tell Officer Vitalo that Gonzalo Duran had to be arrested.” District Court Opinion at 37. As with the case of Sergeant Krummick, even if Officer DeCianni had not told Officer Vitalo that Gonzalo had thrown an object at him, under the limited circumstances of this case, Officer Vitalo could reasonably rely on Officer DeCianni‘s statement that he wanted Gonzalo arrested, as a basis to arrest Gonzalo. Officer Vitalo did not have the luxury of time to obtain a full briefing on the details; he had to act on what he knew at the time, and that included dispatch calls for back-up because of problems with the homeowners. Under those circumstances, a reasonable officer could believe there was probable cause to arrest Gonzalo and, accordingly, Officer Vitalo was entitled to qualified immunity. Therefore, we reverse the district court‘s denial of summary judgment to defendant Officer Vitalo on Gonzalo‘s false arrest claim.
Officer Peslak similarly argued to the district court that he was entitled to qualified immunity because “his involvement in the arrest was simply to help fellow officers of whom he had no reason to suspect they [sic] were not entitled to arrest someone.” District Court Opinion at 87 (quoting Peslak‘s memorandum at 11). The district court rejected this argument concluding that “Peslak points to no particular evidence in support of his argument.” District Court Opinion at 87. From this statement, it appears that the district court rejected Officer Peslak‘s motion based on his failure to properly cite to the record. A district court may deny a motion for summary judgment because the movant did not provide record support for his motion. However, in this case it would be a waste of judicial resources to allow Gonzalo‘s claim against Officer Peslak to proceed because the facts, as set forth by the district court in other portions of its opinion, support Officer Peslak‘s claim of qualified immunity. Specifically, the facts as summarized by the district court showed that Officer Peslak was not present at the scene when the initial dispute between Officer DeCianni and the partygoers broke out, but rather that Officer Peslak arrived in response to a call for back-up support. By the time Officer Peslak arrived there were some eighty or ninety people at the party, and there were several verbal confrontations occurring between the officers and partygoers. Additionally, the district court noted that the record showed that Officer DeCianni told at least two other officers that he wanted Gonzalo arrested. Even if Officer DeCianni did not direct Officer Peslak to arrest Gonzalo, a reasonable officer witnessing the scene and seeing other officers move to arrest Gonzalo could believe that those officers were acting on probable cause, and assist in effectuating the arrest. Although the other officers may not have expressly told Officer Peslak that probable cause existed, their conduct implied as much. Under those circumstances, a reasonable officer could believe there was probable cause to arrest Gonzalo, and accordingly Officer Peslak was entitled to qualified immunity. Cf. Rogers, 120 F.3d at 455. Therefore, we reverse the district court‘s denial of summary judgment to Officer Peslak on Gonzalo‘s false arrest claim.
d. Officer DeCianni
Officer DeCianni also claims that he is entitled to qualified immunity on Gonzalo‘s false arrest claim. Because Gonzalo claims he did not throw a beer can or bottle at Officer DeCianni, as Officer DeCianni claimed, a factual dispute exists as to whether Officer DeCianni had probable cause for arresting Gonzalo on that basis. Officer DeCianni, however, argues that he is nonetheless entitled to qualified immunity because he “could have legally arrested Gonzalo for failing to shut down the party (which was Gonzalo‘s understanding as to why he was being arrested) and causing a disturbance; he could also have arrested him for resisting a lawful police order.” Appellant Brief at 31.
“Whether an officer has probable cause to arrest depends on the requirements of the applicable state criminal law.” Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 761 (7th Cir. 2006). In his brief on appeal, Officer DeCianni did not cite to the relevant Illinois statutory provisions that he claims justified his arrest of Gonzalo. Officer DeCianni also did not identify the state law requirements necessary to justify Gonzalo‘s arrest on the proposed alternative grounds. Officer DeCianni‘s failure to develop this argument constitutes a forfeiture of those arguments on appeal. J.S. Sweet Co., Inc., v. Sika Chem. Corp., 400 F.3d 1028, 1035 n. 2 (7th Cir. 2005). Ac-
2. Excessive Force
Gonzalo also claims that Sergeant Krummick and Officers Sirgedas, Vitalo, Peslak, and DeCianni used excessive force in arresting him. As the Supreme Court held in Graham, 490 U.S. at 396, “the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it,” but the Fourth Amendment prohibits the use of excessive force during the execution of a seizure. Id. at 396. “In order to decide whether the amount of force used during a seizure is ‘excessive,’ we examine the totality of the circumstances to determine whether the intrusion on the citizen‘s Fourth Amendment interests was justified by the countervailing government interests at stake.” Jacobs, 215 F.3d at 773. Specifically, we consider factors such as “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. Additionally, we “consider whether the citizen was under arrest or suspected of committing a crime, was armed, or was interfering or attempting to interfere with the officer‘s execution of his or her duties.” Id. In the final analysis, the excessive force inquiry “looks to whether the force used to seize the suspect was excessive in relation to the danger he posed—to the community or to the arresting officers—if left unattended.” Id. (internal quotation omitted).
To determine whether Sergeant Krummick and Officers Sirgedas, Vitalo, Peslak and DeCianni used excessive force, we must first summarize the factual conclusions the district court found the record could reasonably support. In denying the defendants qualified immunity on Gonzalo‘s claim of excessive force, the district court summarized the record evidence, noting that Officer Sirgedas stated that after he “arrived at the Durans’ home, he heard Officer DeCianni tell Officer Vitalo that Gonzalo Duran had to be arrested.” The district court stated that it was difficult to tell exactly what Officer Sirgedas saw or did next, but that when Officer Vitalo “attempted to place Gonzalo Duran into custody,” Gonzalo “got on top of Officer Vitalo and started kicking him, punching him.” District Court Opinion at 38. Officer Sirgedas then tried to help Officer Vitalo by hitting Gonzalo‘s leg once with his asp (i.e., baton) and by punching Gonzalo once in the head with a closed fist before handcuffing Gonzalo.
The district court also summarized Gonzalo‘s version of the events, first noting that “at his criminal trial, Gonzalo admitted that he was aware that certain officers wanted to arrest him and that he ‘walked fast’ into the back yard [sic] to get away from them.” District Court Opinion at 38. Gonzalo also “admitted that he struggled with two officers (apparently Vitalo and DeCianni), but he denies that he bit Vitalo and denies that he hit or kicked Vitalo.” District Court Opinion at 38. Gonzalo, however, admits that he bit DeCianni but claims he did so because DeCianni was choking him and he could not breathe. District Court Opinion at 38. The district court also stated that “Gonzalo does not admit that he resisted arrest to the extent described by the officers involved....” District Court Opinion at 39. As explained at length above, at the interlocutory appeal stage, we must accept the facts as found to exist by the district court. See Johnson, 515 U.S. at 319-20; see supra at 104.
Against this factual backdrop, then, we consider the legal question of whether the
a. Defendant Officer Sirgedas
As to defendant Officer Sirgedas, the district court concluded that “[t]he nature of Sirgedas’ use of force—in particular his admitted punching of Gonzalo in the head with a closed fist—requires a jury determination of reasonableness.” District Court Opinion at 40. However, as this court explained in Bell v. Irwin, 321 F.3d 637, 640 (7th Cir. 2003) “when material facts (or enough of them to justify the conduct objectively) are undisputed, then there would be nothing for a jury to do except second-guess the officers, which Graham held must be prevented.” (emphasis in original). In this case, although there are many factual disputes, none are material to the question of whether Officer Sirgedas violated Gonzalo‘s Fourth Amendment rights when he struck him with an asp and once in the head. This is a question of reasonableness of force, which is a legal issue, id., and it is reviewable on interlocutory appeal. See supra at 108.
Based on the facts as set forth by the district court, we conclude that Officer Sirgedas did not use excessive force when he struck Gonzalo in the leg with an asp and once in the head with a closed fist. Specifically, as the district court laid out, Gonzalo fled to the backyard to avoid arrest and resisted arrest. Gonzalo also admitted to struggling with two officers, showing the difficulty they had in subduing him. And while Gonzalo claimed he did not resist arrest to the extent the officers claimed, he admitted resisting arrest by, among other things, biting an officer. We add to those facts the explosive nature of the scene and the need to quickly subdue Gonzalo before he injured the officers or attracted other party guests to join in the struggle. Under the totality of the circumstances, we conclude that Officer Sirgedas acted reasonably in striking Gonzalo on the leg with an asp and once in the head with his fist.7 Accordingly, we reverse the district court‘s denial of summary judgment to defendant Sirgedas on the excessive force claim brought by Gonzalo.
b. Defendant Officer Vitalo
Gonzalo also alleged an excessive force claim against Officer Vitalo. The district court set forth the facts related to Gonzalo‘s claim against Officer Vitalo in short order, noting only that: “As for Gonzalo Duran; Vitalo admits that he tackled Gon-
As was the case with Officer Sirgedas, Officer Vitalo did not use excessive force when he struck Gonzalo with an asp and with his fists. Gonzalo admitted to fleeing to the backyard to avoid being arrested and to resisting arrest. Gonzalo also admits that he struggled with at least two officers and that he bit one of those officers. Given Gonzalo‘s admission to resisting arrest, coupled with the escalating situation, the number of partygoers and the presence of alcohol, we conclude that it was reasonable for Officer Vitalo to strike Gonzalo with an asp and his fists while attempting to subdue and arrest him.8 Accordingly, Officer Vitalo did not violate Gonzalo‘s Fourth Amendment‘s rights. Therefore we reverse the district court‘s denial of summary judgment to defendant Vitalo on Gonzalo‘s excessive force claim.
c. Defendant Sergeant Krummick
Gonzalo also sued Sergeant Krummick for excessive force. The district court summarized the facts as related to this claim as follows: “There is evidence from several plaintiffs that after officers pursued Gonzalo as he ‘walked fast’ from the front yard to the back yard, Krummick participated in the scuffle and arrested Gonzalo (described in part in our discussion of Officer Sirgedas‘s motion) by hitting Gonzalo with an asp and kicking him.” District Court Opinion at 69-70. The district court‘s earlier description of the arrest noted that Gonzalo “admitted that he struggled with two officers (apparently Vitalo and DeCianni), but he denies that he bit Vitalo and denies that he hit or kicked Vitalo.” District Court Opinion at 38. The district court also noted that Gonzalo admitted that he bit DeCianni. District Court Opinion at 38.
As was the case with Officers Sirgedas and Vitalo, under the circumstances facing the officers, striking Gonzalo with an asp and kicking him did not constitute excessive force. Specifically, as noted above, Gonzalo admitted to fleeing to the backyard to avoid being arrested and to resisting arrest and he admits that he struggled with at least two officers and that he bit one of those officers. Gonzalo‘s admission to resisting arrest and the setting in which the resistance occurred (an escalating situation in which partygoers outnumbered officers), we conclude it was reasonable for Sergeant Krummick to strike Gonzalo with an asp and kick him so as to try to subdue and arrest him.9 Accordingly, we reverse the district court‘s denial of summary judgment to defendant Sergeant Krummick on Gonzalo‘s exces-
d. Defendant Officer Peslak
As for the excessive force claim against Officer Peslak, the district court stated that “Gonzalo Duran alleges that Peslak hit and kicked him in the attempt to subdue and arrest him.” District Court Opinion at 83. The district court denied Officer Peslak summary judgment concluding that a reasonable jury could find that “Peslak either intended to cause [Gonzalo] harm or was deliberately indifferent to the risk of causing [him] harm.” District Court Opinion at 85. While on interlocutory appeal from the denial of qualified immunity we must accept the district court‘s version of the factual record, we review de novo legal conclusions. See Leaf, 400 F.3d at 1077-78. And the question of reasonableness of force is a legal issue. See Bell, 321 F.3d at 640.
In this case, as with Officers Sirgedas and Vitalo and Sergeant Krummick, under the circumstances confronting the officers, it was reasonable for Officer Peslak to hit and kick Gonzalo so as to effectuate the arrest.10 Therefore, Officer Peslak did not violate Gonzalo‘s Fourth Amendment rights and we reverse the district court‘s denial of summary judgment to Officer Peslak on Gonzalo‘s excessive force claim.
e. Defendant Officer DeCianni
Gonzalo also alleged an excessive force claim against Officer DeCianni. As to this claim, the district court noted that “Gonzalo alleged that DeCianni beat and choked him in the attempt to subdue and arrest him.” District Court Opinion at 88. The district court then concluded that Gonzalo Duran had an evidentiary basis for his excessive force claim against Officer DeCianni. On appeal, Officer DeCianni claims that he was entitled to qualified immunity on Gonzalo Duran‘s excessive force claim. However, in its order denying Officer DeCianni summary judgment, the district court stated that “DeCianni argues that he is entitled to qualified immunity on these [excessive force] claims (except as to the claims of Ruben Pineda and Gonzalo Duran.)” District Court Opinion at 90. From this passage, it appears that Officer DeCianni did not argue qualified immunity on the excessive force claim Gonzalo presented. A claim not raised before the district court is waived on appeal.11 See United States v. Hawk, 434 F.3d 959, 961-62 (7th Cir. 2006). Accordingly, we affirm the district court‘s denial of qualified immunity to Officer DeCianni on Gonzalo‘s excessive force claim.
C. Other Claims
In addition to the above claims, several individual plaintiffs sued for alleged constitutional violations, and individual defendants sought qualified immunity on those claims. Again, select defendants appeal from the district court‘s denial of qualified
1. Claims by Amada Duran, Concepcion Duran, Jaime Duran, Kevin Duran, and Alondra Paredes against Officers Krummick and/or Officer DeCianni
Amada Duran, Concepcion Duran, Jaime Duran, and Kevin Duran sued Sergeant Krummick and Officer DeCianni alleging that the defendants violated their constitutional rights by spraying them with pepper spray. In addition, Alondra Paredes sued Officer DeCianni, claiming that he also sprayed her with pepper spray in violation of her constitutional rights. In considering Sergeant Krummick and Officer DeCianni‘s motion for summary judgment based on qualified immunity, the district court relied on an affidavit Amada Duran filed with the court. In her affidavit, Amada stated, “I was sprayed in the neck with pepper spray by Thomas Krummick, then by Robert DeCianni,” and that “[m]y children, Jaime, Kevin, and Concepcion, and my niece, Alondra Paredes, were with me and holding on to me when I was sprayed and they were sprayed as well and were crying.” Based on this affidavit, the district court concluded that the plaintiffs alleged sufficient facts that “shocked the conscience” of the court so as to support a jury finding of a violation of their Fourteenth Amendment due process rights.12
On appeal, Sergeant Krummick and Officer DeCianni first argue that the district court erred in considering Amada Duran‘s affidavit, claiming that Amada‘s affidavit contradicted her prior sworn interrogatory answers. However, as explained above, see supra at 108-10, this court lacks jurisdiction to review the challenge to Amada Duran‘s affidavit, as such a challenge is, in effect, an attack on the district court‘s conclusion as to whether or not the pretrial record sets forth a “genuine” issue of fact for trial. McKinney, 463 F.3d at 690.
Sergeant Krummick and Officer DeCianni argue alternatively “that even if the affidavit is considered the plaintiffs have not shown a Fourteenth Amendment violation.” Appellant Brief at 35. This court has jurisdiction to consider this purely legal question of whether the facts, as set forth by the district court, could be sufficient to establish a violation of clearly established constitutional law. See Leaf, 400 F.3d at 1077-78.
Initially, we note that unlike the plaintiffs inside the house, these plaintiffs were not “seized” within the meaning of the Fourth Amendment. Accordingly, their claim is analyzed under the due process clause of the Fourteenth Amendment. Conduct that violates the Fourteenth Amendment‘s guarantee of substantive due process must be so arbitrary that it “shocks the conscience.” County of Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998). Substantive due process is a most amorphous doctrine that is a “difficult concept to pin down,” Tun v. Whitticker, 398 F.3d 899, 901 (7th Cir. 2005), but only “conduct in-
In this case, the facts as set forth by the district court were that Sergeant Krummick and Officer DeCianni sprayed pepper spray at Amada Duran and her children, and Officer DeCianni also used excessive force by spraying Amada‘s niece, all while they were standing in the back yard. The district court did not find any evidence that these plaintiffs were refusing to follow a police order or were resisting arrest in any way. Nor did the district court conclude that the record evidence indicated that the officers were spraying pepper spray more broadly to disperse the crowd. Given these limited facts, we agree with the district court that a reasonable officer would know that spraying individuals (who allegedly were not resisting arrest, refusing to obey a lawful order to disperse, or otherwise interfering with official business) with pepper spray without justification could support a jury verdict based on the Fourteenth Amendment‘s “shocks the conscience” standard, as it could be found to be “conduct intended to injure in some way unjustifiable by any government interest.” Lewis, 523 U.S. at 840. Accordingly, based on the facts set forth by the district court, we conclude that at this stage Sergeant Krummick and Officer DeCianni were not entitled to qualified immunity on these claims. Therefore, we affirm the district court‘s denial of summary judgment to defendants Sergeant Krummick and Officer DeCianni on these claims.
2. Claims by Joel Rico Duran and Jesus Rico Duran against Officers Cruz and DeCianni
Plaintiffs Joel Rico Duran and his two-year-old son, Jesus Rico Duran, sued Officers Cruz and DeCianni, claiming those officers sprayed them with pepper spray. Officers Cruz and DeCianni argued before the district court that they were entitled to qualified immunity on these claims. Because Joel Rico Duran and Jesus Rico Duran were not seized at the time the officers allegedly sprayed them with pepper spray, the district court analyzed their claims under the Fourteenth Amendment‘s “shocks the conscience” standard. Applying this standard, the district court denied Officers Cruz and DeCianni qualified immunity, concluding that “[a] jury could reasonably find on the facts that Cruz‘s [and DeCianni‘s] spraying of plaintiffs was done to cause harm.” District Court Opinion at 62, 90.
On appeal, Officers Cruz and DeCianni first argue that the district court erred in considering an affidavit Joel Rico Duran filed identifying Officers Cruz and DeCianni as the officers who sprayed him and his son. Officers Cruz and DeCianni claim that this later-filed affidavit contradicted and changed the testimony Joel Rico Duran had provided in his earlier answers to interrogatories. As noted above, we lack jurisdiction to consider this challenge on interlocutory appeal. See supra at 108-09.
Alternatively, Officers Cruz and DeCianni claim that Joel Rico Duran and Jesus Rico Duran did not present sufficient evidence to overcome the defendants’ claim of qualified immunity. Jurisdiction exists to consider this legal question, but in doing so we must accept the facts as set forth by the district court. See supra at 108. The facts as summarized by the district court are that Officers Cruz and DeCianni sprayed Joel Rico Duran and his two-year-old son, Jesus Rico Duran, with pepper spray. Again, there was no finding of fact that Joel Rico Duran was resisting arrest, disobeying a lawful order, or interfering
3. Claims by Raquel Uribe, Florina Pindea, and Manuel Uribe Palacios against Officer Vitalo
Plaintiffs Raquel Uribe, Florina Pindea, and Manuel Uribe Palacios sued Officers Lewandowski and Vitalo, alleging that these defendants violated their constitutional rights by spraying them with pepper spray. Officer Vitalo sought summary judgment based on qualified immunity.13 In considering Officer Vitalo‘s motion for summary judgment based on qualified immunity, the district court relied on an affidavit Rachel Uribe filed, stating that Vitalo entered the house and “sprayed me, my mother, Florina Pineda, my father, Manuel Uribe, Sr., with pepper spray.” District Court Opinion at 42 (quoting Affidavit of Raquel Uribe, Ex. 156). The district court concluded that Uribe‘s affidavit created a genuine issue of material fact as to whether Officer Vitalo violated the constitutional rights of Raquel Uribe, Florina Pindea and Manuel Uribe Palacios by spraying them
with pepper spray while they were inside the house. District Court Opinion at 43.
On appeal, Officer Vitalo first argues that the district court erred in considering Raquel Uribe‘s affidavit, claiming that her affidavit contradicted her prior, sworn interrogatory answers. However, as explained above, see supra at 108-09, this court lacks jurisdiction to review the challenge to Raquel Uribe‘s affidavit, as such a challenge is, in effect, an attack on the district court‘s conclusion as to whether or not the pretrial record sets forth a “genuine” issue of fact for trial. McKinney, 463 F.3d at 690.
Officer Vitalo argues alternatively that even considering the affidavit, he is entitled to qualified immunity because these plaintiffs have not presented sufficient evidence of a constitutional violation. This court has jurisdiction to consider the purely legal question of whether the facts, as set forth by the district court, could be sufficient to establish a violation of clearly established constitutional law. See supra at 108. In this case, the facts set forth by the district court were that Officer Vitalo entered the house and sprayed Raquel Uribe and her parents. The district court did not find any evidence that these plaintiffs were refusing to follow a lawful order, were resisting arrest in any way, or were attempting to leave the house. Given these limited facts, we agree with the district court that a reasonable officer would know that spraying pepper spray at individuals who were safely detained within a house constitutes excessive force in violation of the Fourth Amendment. See supra at 111-12; see also Clash, 77 F.3d at 1048 (“[P]olice officers do not have the right to shove, push, or otherwise assault innocent citizens without any provocation whatsoev-
4. Claims by Graciela and Kassandra Torres against Officer McMahon
Graciela Torres and her daughter, Kassandra Torres, sued Officer McMahon, claiming that he used force against them without provocation. The district court summarized the factual claims as follows: “Graciela Torres alleges that McMahon pushed her into a fence, causing a bruise. Kassandra Torres, who was seven years old at the time of the events, alleges that McMahon pushed her to the ground, causing a scratch on her arm.” District Court Opinion at 78. Officer McMahon sought qualified immunity on these claims, but the district court denied his motion, holding:
Even considering that the higher Fourteenth Amendment standard applies to the qualified immunity analysis for these plaintiffs, we believe that a jury could reasonably find from the evidence that McMahon‘s alleged conduct shocked the conscience because McMahon either in-tended to cause them harm or was deliberately indifferent to the risk of causing them harm.
District Court Opinion at 79.
On appeal, Officer McMahon first claims that the district court erred in considering the affidavit Graciela filed that identified him as the officer who had pushed Graciela and Kassandra. Officer McMahon contends that that affidavit constituted a change in testimony from the answers Graciela made in her interrogatory answers. Again, we lack jurisdiction to consider that question. See supra at 109-10.
Alternatively, Officer McMahon argues that he is entitled to qualified immunity even accepting the facts set forth in the affidavit and relied upon by the district court. Those facts, however, are extremely limited and merely portray Officer McMahon as pushing Graciela into a fence and Kassandra to the ground for no reason. There is no evidence noted in the district court‘s opinion showing any justification whatsoever for Officer McMahon pushing Graciela and Kassandra. Under these circumstances, a reasonable officer would know that his conduct violated clearly established constitutional norms. See Lewis, 523 U.S. at 849.15 Accordingly, at this stage, we must affirm
5. Claims by Gonzalo Duran Jr. and Julia de la Cruz against Officer Cruz
Gonzalo Duran Jr. and Julia de la Cruz claimed that Officer Cruz sprayed them with pepper spray in violation of their constitutional rights. Officer Cruz sought summary judgment based on qualified immunity. The district court denied that motion, concluding that “[a] jury could reasonably find on the facts that Cruz‘s spraying of plaintiffs was done to cause harm.” District Court Opinion at 62.
On appeal, Officer Cruz first argues that the district court erred in relying on Gonzalo Duran Jr.‘s affidavit, in which he claimed that Officer Cruz “sprayed mace which hit Julia de la Cruz and me in the face.” Officer Cruz claims that this testimony contradicted Gonzalo Duran Jr.‘s prior sworn testimony and thus should not have been considered. Again, we lack jurisdiction to consider that question on interlocutory appeal. See supra at 109-10.
Alternatively, Officer Cruz contends that he is entitled to qualified immunity because Gonzalo Duran Jr.‘s affidavit requires this court to speculate that Gonzalo and Julia had done nothing and that Officer Cruz just walked up and sprayed them without any provocation. Unlike the affidavits of the other plaintiffs addressed above, which state that the defendants intentionally sprayed them with pepper spray, Gonzalo Duran Jr.‘s affidavit is more carefully crafted, stating that Officer Cruz “sprayed mace which hit Julia de la Cruz and me in the face.” See Appellant Brief at 39 (quoting affidavits). It very well could be that Officer Cruz had a legitimate reason to discharge the pepper spray at Gonzalo Duran Jr. and Julia de la Cruz, or that he sprayed other partygoers who were resisting arrest and the spray lofted over to Gonzalo Duran Jr. and Julia de la Cruz. Under either of those circumstances, Officer Cruz would be entitled to qualified immunity. However, our review on interlocutory appeal is limited to the facts as set forth by the district court and under the district court‘s version of the facts, there was no stated justification for Officer Cruz spraying the pepper spray that struck Gonzalo, Duran, Jr., and Julia de la Cruz. Accordingly, at this stage, we must deny Officer Cruz qualified immunity, as it is clearly established that “conduct intended to injure in some way unjustifiable by any government interest,” shock the conscience. Lewis, 523 U.S. at 849. Therefore, we affirm the district court‘s denial of summary judgment to Officer Cruz on these claims.
6. Claims by Jose Manuel Uribe and Jose Manuel Uribe Jr. against Officer Cruz.
Jose Manuel Uribe and Jose Manuel Uribe Jr. sued Officer Cruz, claiming that he sprayed them with pepper spray. Officer Cruz moved for summary judgment based on qualified immunity. The district court denied Officer Cruz‘s motion, concluding that “a jury could reasonably find on the facts that Cruz‘s spraying of plaintiffs was done to cause harm.” District Court Opinion at 62. Officer Cruz responds with the same two arguments made and rejected above, namely that the district court erred in considering the affidavit Jose Manuel Uribe filed because his affidavit conflicted with his earlier interrogatory answers, and that using pepper spray on individuals does not violate clearly established constitutional norms. We again reject those arguments, the first because we lack jurisdiction, see supra at 114-17, and the second because it is clearly
7. Claims by Lisbeth Moreno and Diego Torres against Officer DeCianni.
Lisbeth Moreno and Diego Torres sued Officer DeCianni, claiming Officer DeCianni sprayed them with pepper spray. The district court summarized the allegations as follows: Lisbeth Moreno alleged that Officer DeCianni sprayed her, and Diego Torres alleged that Officer DeCianni sprayed him and told him to “move the f[-] out of the way, you little brat.” District Court Opinion at 88. Officer DeCianni moved for summary judgment based on qualified immunity, and the district court denied that motion, concluding “that a jury could reasonably find from the evidence that DeCianni‘s alleged conduct shocked the conscience because DeCianni either intended to cause these plaintiffs harm or was deliberately indifferent to the risk of causing them harm.” District Court Opinion at 90. On appeal, Officer DeCianni incorporates the same arguments for reversal as considered and rejected above. And we too incorporate our above analysis and hold that we lack jurisdiction to consider whether the district court erred in considering later-filed affidavits and that qualified immunity based on the sparse facts undisputedly known at this time is inappropriate. See supra at 114-18; 70-71. Therefore, we affirm the district court‘s denial of summary judgment to Officer DeCianni on these claims.
8. Claim by Ismael Torres against Officer Peslak.
Ismael Torres sued Officer Peslak, claiming that Officer Peslak sprayed him with pepper spray in his eyes. Officer Peslak sought summary judgment based on qualified immunity on this claim, but the district court denied the motion, concluding that “a jury could reasonably find from the evidence that Peslak‘s alleged conduct shocked the conscience because Peslak either intended to cause [Ismael Torres] harm or was deliberately indifferent to the risk of causing [him] harm.” District Court Opinion at 85. On appeal, Officer Peslak also duplicates the arguments made and rejected above. For the same reasons, we conclude that we lack jurisdiction to consider whether the district court improperly considered Ismael Torres’ later-filed (and allegedly contradictory) affidavit. See supra at 114-18. And based on the facts as set forth by the district court, Officer Peslak is not entitled to qualified immunity because a reasonable officer would know that it is unconstitutional to spray someone with pepper spray, without any justification. See supra at 70-71. Therefore, we affirm the district court‘s denial of summary judgment on Ismael Torres‘s claim against Officer Peslak.
9. Jesus Uribe‘s Claim against Sergeant Krummick.
Jesus Uribe alleged that Sergeant Krummick used excessive force by pushing him inside the Duran house. Uribe also claimed that while inside the house he saw pepper spray come from underneath the door, but Uribe did not claim any injury from the pepper spray, and he does not point to any evidence that Sergeant Krummick discharged the pepper spray. Thus, Uribe‘s sole claim of excessive force against Sergeant Krummick is based on the officer‘s push.
Sergeant Krummick argued that he is entitled to qualified immunity on this claim, but the district court denied Ser-
We disagree. Unlike the claims made by Graciela and Kassandra Torres that they were pushed into a fence or to the ground, under the facts as found to exist by the district court, Sergeant Krummick pushed Jesus Uribe into the house. Under the circumstances of this case, an officer could reasonably believe that pushing an individual into a house was justified by the need to disperse and control a large, unruly gathering, in which partygoers outnumbered officers. Significantly, we judge reasonableness from the officers’ perspective at the time and not with twenty-twenty hindsight. In this case, as the district court set forth, Sergeant Krummick was one of the later officers to arrive on the scene, and he arrived on the scene only after back-up officers radioed the dispatcher to send a supervisor and additional officers because people were “getting unruly.” District Court Opinion at 3. By the time Sergeant Krummick arrived there were approximately eighty to ninety people at the party, and there were several verbal confrontations occurring between officers and party guests. District Court Opinion at 3. Under these circumstances, it was reasonable for an officer to attempt to expeditiously corral the crowd by pushing members of the crowd into the house. Or at a minimum, given the lack of analogous case law, it was not clearly established that pushing an individual under the circumstances known at the time to Sergeant Krummick violated clearly established constitutional norms. Accordingly, Officer Krummick was entitled to summary judgment on Jesus Uribe‘s excessive force claim and we reverse the district court.
10. Graciela Pineda‘s claim against Officer Gross.
Plaintiff Graciela Pineda sued Officer Gross claiming that she violated her constitutional rights by spraying her with pepper spray without justification. Unlike the plaintiffs inside the house, Pineda was not “seized” within the meaning of the Fourth Amendment, and thus her claim is analyzed under the “shocks the conscience” standard of the Fourteenth Amendment. Lewis, 523 U.S. at 846-47. Applying that standard, the district court denied Officer Gross qualified immunity, concluding that a reasonable jury could find that she had sprayed Pineda in order to cause harm.
On appeal, Officer Gross‘s sole contention is that Graciela Pineda “has not cited to any case that would show that spraying pepper spray in and of itself constitutes excessive force.” Appellant Brief at 42. However, as this court has explained before, “[i]t would create perverse incentives indeed if a qualified immunity defense could succeed against those types of claims that have not previously arisen because the behavior alleged is so egregious that no like case is on the books.... The easiest cases don‘t even arise.” McDonald by McDonald v. Haskins, 966 F.2d 292, 295 (7th Cir. 1992) (internal quotations omitted). Thus, defendants cannot claim qualified immunity merely because another case is not on all fours with their situation. Rather, the question is whether the law provided the defendant with fair notice that the conduct was unconstitutional. Coady v. Steil, 187 F.3d 727, 734 (7th Cir. 1999).
11. Maria Alicia Moreno‘s claim against Officer Gross.
Plaintiff Moreno also sued Officer Gross, arguing that Officer Gross violated her constitutional rights by indirectly spraying her with pepper spray.16 Moreno further alleged that when she attempted to enter the garage, Officer Gross pulled her away, ordering Moreno to remain in the backyard.
As with Pineda‘s claim against Officer Gross, Moreno‘s claim based on the
pepper spraying is analyzed under the Fourteenth Amendment‘s “shocks the conscience” standard. Lewis, 523 U.S. at 846-47. Applying that standard, the district court concluded that “a jury could reasonably find on these facts that Gross‘s conduct was done to cause harm.” District Court Opinion at 60. We disagree. As the district court explained, Moreno‘s claim was that she felt the ill effects of pepper spray indirectly. Thus, there is no evidence that Officer Gross intended to cause harm to Moreno, and thus no evidence that Officer Gross’ conduct violated the Fourteenth Amendment. As to the claim that Officer Gross “pulled” Moreno when she attempted to enter the garage, that conduct was justified under the facts as set forth by the district court, namely, the officers were faced with an escalating situation in which partygoers outnumbered officers. It was reasonable for an officer under these circumstances to believe it was necessary to pull someone in the crowd so as to prevent them from entering a garage, which could have tools or other items that could be used as weapons. Accordingly, Officer Gross did not violate Moreno‘s constitutional rights. Alternatively, Officer Gross was entitled to qualified immunity on Moreno‘s claims. Therefore, we reverse the district court‘s denial of summary judgment to defendant Officer Gross on Maria Alicia Moreno‘s claim.
12. Adolfo Duran‘s claim against Officer McMahon.
Adolfo Duran sued Officer McMahon, claiming Officer McMahon sprayed him
On appeal, Officer McMahon argues that it is not even clear that he sprayed Adolfo Duran, but that if he did, he did so because Adolfo Duran was pushing him. Officer McMahon then argues that “[s]praying pepper spray at someone who is pushing him is not in and of itself a malicious act and there is no evidence McMahon intended to hurt Adolfo Duran.” Appellant Brief at 43. Although we would agree that an officer is entitled to qualified immunity if the claim is that he pepper sprayed an individual who pushed him in the midst of the officer attempting to control a large crowd, the problem for Officer McMahon is that our review is limited on interlocutory appeal. In this case, the district court noted only that Officer McMahon admitted to spraying Adolfo Duran and did not set forth any facts indicating that Adolfo Duran pushed Officer McMahon. Given our limited review, we must affirm then the district court‘s denial of summary judgment based on qualified immunity because under the district court‘s version of the facts, Officer McMahon sprayed Adolfo Duran with pepper spray without justification. Lewis, 523 U.S. at 849.
III.
As explained above, this court lacks jurisdiction to consider the defendants’ challenges to the district court‘s reliance on later-filed affidavits. However, we have jurisdiction to consider the purely legal question of whether the facts, as set forth by the district court, are sufficient to establish a violation of clearly established constitutional norms. On the legal questions, we AFFIRM, in part, and REVERSE, in part, on the claims of qualified immunity. Specifically, we AFFIRM the district court‘s denial of qualified immunity to: 1) Officers DeCianni and Peslak on the claims brought by individuals alleging they were pepper-sprayed while inside the Duran house; 2) Officer DeCianni on Gonzalo‘s false arrest claim; 3) Officer DeCianni on Gonzalo‘s excessive force claim; 4) Sergeant Krummick on the claims by Amada Duran, Concepcion Duran, Jaime Duran, and Kevin Duran that he pepper-sprayed them without justification; 5) Officer DeCianni on the claims by Amada Duran, Concepcion Duran, Jaime Duran, Kevin Duran and Alondra Paredes that he pepper-sprayed them without justification; 6) Officers Cruz and DeCianni on claims by Joel Rico Duran and Jesus Rico Duran that they pepper-sprayed them without justification; 7) Officer Vitalo on claims by Raquel Uribe, Florina Pindea, and Manuel Uribe Palacios that he pepper-sprayed them without justification; 8) Officer McMahon on claims by Graciela and Kassandra Torres that he pushed them without any justification; 9) Officer Cruz on claims by Gonzalo Duran Jr. and Julia de la Cruz that he pepper-sprayed them without justification; 10) Officer Cruz on claims by Jose Manuel Uribe and Jose Manuel Uribe Jr. that he pepper-sprayed them without justification; 11) Officer DeCianni on claims by Lisbeth Moreno and Diego Torres that he pepper-sprayed them without cause; 12) Officer Peslak on Ismael Torres‘s claim that Officer Peslak pepper-sprayed him without justification; 13) Officer Gross on Graciela Pineda‘s claim that Officer Gross sprayed her with pepper spray without justification; 14) Officer McMahon on Adolfo Duran‘s claim that Officer McMahon pepper-sprayed him without justification. We REVERSE as to the district court‘s denial of qualified
ORDER
On May 15, 2007, defendant Robert DeCianni filed a petition for rehearing, contending that he had not waived his defense of qualified immunity as to plaintiff Gonzalo Duran‘s claim of excessive force. In our original opinion, based on the district court‘s opinion, we concluded that Officer DeCianni had waived any claim of qualified immunity by not presenting the argument to the district court. However, in his petition for rehearing, Officer DeCianni provided record support showing that he had in fact argued before the district court (as he did on appeal) that he was entitled to qualified immunity on Gonzalo‘s excessive force claim. In their answer to the petition for rehearing, the plaintiffs agree that Officer DeCianni argued his claim of qualified immunity to the district court. Therefore, even though the district court did not expressly address Officer DeCianni‘s claim of qualified immunity, we conclude that Officer DeCianni did not waive this issue. Accordingly, we grant the petition for rehearing and vacate that portion of our earlier order holding that Officer DeCianni had waived any claim of qualified immunity as to Gonzalo‘s excessive force claim, namely part II.B.2.e and the related concluding summary in part III. We further modify the original order to substitute for the vacated portion the following analysis of Gonzalo‘s excessive force claim against Officer DeCianni.
e. Defendant Officer DeCianni
Gonzalo also alleged an excessive force claim against Officer DeCianni. As to this claim, the district court noted that “Gonzalo alleged that DeCianni beat and choked him in the attempt to subdue and arrest him.” District Court Opinion at 88. Based on these facts, the district court concluded that Gonzalo had an evidentiary basis for his excessive force claim against Officer DeCianni. District Court Opinion at 80. On appeal, Officer DeCianni claims that he was entitled to qualified immunity on Gonzalo Duran‘s excessive force claim.
On interlocutory appeal from the denial of qualified immunity, we must accept the district court‘s version of the factual record, see Leaf, 400 F.3d at 1077-78, but the question of the reasonableness of force is a legal question that we review de novo, Bell, 321 F.3d at 640. Our de novo review convinces us that, as was the case with Officers Sirgedas and Vitalo and Sergeant Krummick, under the limited circumstances of this case (i.e., the escalating situation in which partygoers outnumbered law enforcement officers, and where Gonzalo was able to resist the attempts of four officers to arrest him) the force Officer DeCianni used was reasonable in light of the Graham factors, or alternatively the lack of analogous case law would entitle Officer DeCianni to qualified immunity. Accordingly, we reverse the district court‘s denial of summary judgment to Officer DeCianni on Gonzalo‘s excessive force
UNITED STATES of America, Plaintiff-Appellee, v. Sedgwick JOHNSON, Kalonji McMillian, and Raymond Cooper, Defendants-Appellants.
Nos. 03-1322, 03-1323, 03-1477.
United States Court of Appeals, Seventh Circuit.
June 1, 2007.