Garvin v. WheelerGarvin v. Wheeler
Anthony W. Overholt (argued), Office of Corp. Counsel, City Counsel Legal Div., Indianapolis, IN, Jeffrey S. McQuary, Office of Corp. Counsel, Indianapolis, IN, for Defendant-Appellant.
Before CUDAHY, COFFEY, and WILLIAMS, Circuit Judges.
COFFEY, Circuit Judge.
This is a
I. Factual Background
On August 29, 1996, at approximately 1:05 a.m., Indianapolis Police Department (IPD) Officer Ronald Mills received a radio call that there was a burglary at Hart‘s Automotive in Indianapolis, Indiana. Officer Mills responded almost immediately to the call and was the first officer to arrive at the automotive shop. Once Mills arrived at Hart‘s, he observed that a panel had been removed from one of the building‘s garage doors. Officer Mills informed the dispatch operator that a burglary had occurred and, the operator, in turn, apprised assisting units of the situation.
At this point, the parties‘s versions of events sharply diverged. According to Wheeler, he prevented Garvin‘s flight by grabbing his shirt, but as Garvin turned to face Wheeler, Wheeler claimed that he observed Garvin reach for a gun in his waistband. Wheeler claimed that he and Garvin struggled for control of the gun, whereby they both fell to the ground. Wheeler contended that when Garvin began to gain control of the weapon, Wheeler (who was on top of Garvin on the ground) “rocked back, drew his [own] firearm and fired four successive shots at [Garvin].”
The plaintiffs tell a different story. According to plaintiffs, no struggle ever took place and Garvin never drew a gun—and thus Wheeler‘s use of deadly force was not justified. In support of their claims, plaintiffs question the credibility of Wheeler. They pointed out that his deposition testimony differed from that of Officers Mills and Toliver. Both Mills and Toliver claimed to have heard Wheeler report that he was pursuing a suspect, contrary to Wheeler‘s deposition testimony that he never radioed that he was pursuing a fleeing suspect. Further, both Mills and Toliver reported hearing Wheeler describe the suspect as running westbound towards the burglary site, as opposed to the easterly direction Wheeler claimed to have observed Garvin heading. Second, and far less trivial than the discrepancies in Wheeler‘s deposition testimony, the plaintiffs pointed out that the IPD‘s forensic analysis of the weapon Wheeler claimed that Garvin aimed at him revealed no latent fingerprints, despite the fact that Wheeler claimed the weapon never left Garvin‘s hand during the struggle.
Not quite two years after the shooting, on August 25, 1998, the plaintiffs filed suit in the Marion County, Indiana, Circuit Court, alleging that Officer Lawrence Wheeler violated Alexis Garvin‘s civil rights under
On May 18, 2000, Officer Wheeler moved for summary judgment, asserting the affirmative defense of qualified immunity. According to Wheeler, his use of deadly force was justified because he faced a potentially life-threatening situation. Before the trial court, the parties hotly contested the series of events that led to the tragic death of Alexis Garvin and the district court viewed them, as it was required to do in reviewing a motion for summary judgment, in the light most favorable to the nonmoving party, the Garvins. The plaintiffs pointed out the inconsistences referred to above and argued that the lack of fingerprints on the gun and the inconsistencies in Wheeler‘s story called into question his credibility. Because of Wheeler‘s lack of credibility, the plaintiffs argued that there was a genuine issue of material fact regarding whether any struggle actually occurred, thus precluding summary judgment. After reviewing the record, we agree with the trial court‘s determination that Wheeler was less than truthful in his recitation of the facts leading up to Alexis Garvin‘s death.
Wheeler never did file a notice of appeal from Judge Dillin‘s October 4, 2000, denial of qualified immunity, and discovery in the case proceeded. During that additional discovery, plaintiffs deposed David Brundage, a supervising forensic scientist for the Indianapolis-Marion County Forensic Services Agency. In that deposition of Wheeler‘s own expert witness, Brundage testified that the entry and exit wounds on Garvin‘s body were not consistent with Wheeler‘s testimony with regard to how the shooting took place, thus further calling into question Wheeler‘s version of events.
On August 7, 2001, nearly ten months after the trial court had previously denied qualified immunity, Wheeler filed a four-paragraph motion for leave to file renewed motion for summary judgment. Defendant‘s motion asserted that a case decided by the Supreme Court two months earlier, Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (June 18, 2001), demonstrated that Judge Dillin‘s denial of summary judgment was in error. Judge Young denied defendant leave to renew his summary judgment motion, ruling that Saucier did not impact Judge Dillin‘s analysis. Wheeler appeals from Judge Young‘s denial of leave to file a renewed summary judgment motion.
II. Jurisdiction
Before proceeding to the merits of Officer Wheeler‘s arguments, we must first determine whether this court has jurisdiction to hear Wheeler‘s interlocutory appeal. Ordinarily, the denial of a defendant‘s motion for summary judgment is not an appealable order because it is not a “final decision” of the trial court.
Instead, the basis of Wheeler‘s request to renew his summary judgment motion was that the controlling legal standard had changed since he initially pressed his qualified immunity defense. Of course, a trial court may, in the exercise of its discretion, allow a party to renew a previously denied summary judgment motion. Whitford v. Boglino, 63 F.3d 527, 530 (7th Cir.1995); Kirby v. P.R. Mallory & Co., 489 F.2d 904, 913 (7th Cir.1973). A renewed summary judgment motion is appropriate if one of the following grounds exist: (1) an intervening change in the controlling law; (2) the availability of new evidence or an expanded factual record; and (3) need to correct a clear error or prevent manifest injustice. Whitford, 63 F.3d at 530.
In this instance, defendant Wheeler claims that Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (June 18, 2001), worked a fundamental change in the law of qualified immunity that should allow him to reopen his motion for summary judgment. But defendant Wheeler overstates the import of Saucier. Saucier was not a hallmark reformulation of the qualified immunity analysis. Instead, Saucier stressed that a trial court must engage in the two-part qualified immunity analysis (asking first whether a constitutional right was violated and second whether that right was clearly established) before it engages in other analysis. Id. at 200-01. Judge Dillin did just that when he expressly noted that Garner governed an officer‘s use of deadly force and that if Wheeler‘s version of events were believable, then in that instance he would be entitled to qualified immunity. Judge Dillin, however, found that Officer Wheeler‘s version of events was less than credible and therefore that the plaintiffs had established that a reasonable officer could not have believed his action (fatally shooting an unarmed suspect) to be reasonable. Thus, Judge Dillin did engage in the two-part qualified immunity test required by Saucier.
In Justice v. Town of Blackwell, 820 F.2d 238 (7th Cir.1987), we declined to accept jurisdiction over an interlocutory appeal from the denial of a motion to amend the answer to include the defense of qualified immunity. In that case, the trial judge did not address the merits of the qualified immunity defense, but instead denied the motion because of the lengthy delay between the filing of the defendant‘s answer and the motion to amend. We think the case before us is analogous: Wheeler never appealed from Judge Dillin‘s denial of his claim of qualified immunity and instead waited nearly a year before seeking leave to renew that claim (notwithstanding the fact that the facts of the case had not changed). The Federal Rules of Appellate Procedure allot 30 days time for Wheeler to have filed a notice of appeal, and the time for Wheeler to appeal Judge Dillin‘s denial of his qualified immunity motion has long since passed. See
Wheeler suggests that his appeal turns upon an issue of law and that there are no disputed facts. Wheeler‘s characterization that his dispute is legal, rather than factual, is less than accurate. In the underlying denial of summary judgment, Judge Dillin clearly held that “if the finder of fact believes that no struggle took place and that [Garvin] never drew a gun, the reasonableness of Officer Wheeler‘s use of deadly force becomes questionable.” Judge Dillin went on to rule that issues regarding Wheeler‘s credibility made it possible that a fact finder could believe the plaintiffs’ version of events, in which Wheeler resorted to the use of deadly force on a suspect who had not committed or threatened any act of violence. Wheeler does not contend, nor could he, that under the plaintiffs’ version of the facts his actions could be considered objectively reasonable. Tennessee v. Garner clearly does not allow police officers to use deadly force on unarmed burglary suspects who have neither threatened the officer with a weapon nor committed a crime involving the infliction of serious physical harm. 471 U.S. 1, 11, Id. The essential dispute, therefore, concerns whether Officer Wheeler‘s or the plaintiffs’ version of the facts is true.
In short, if the factfinder were to accept Officer Wheeler‘s version of the events, he would be entitled to qualified immunity, for it is objectively reasonable for a police officer to defend himself when a suspect aims a weapon at him. But under the plaintiffs’ version of the facts, where no struggle occurred, Officer Wheeler shot a suspect who was neither armed nor resisting. As Judge Dillin found, there were a number of inconsistencies in Wheeler‘s recitation of events, which in turn called into question his credibility. For example, police, after a thorough inspection, failed to find even a single partial print on the gun Garvin allegedly aimed at him. Wheeler‘s deposition testimony, which conflicted with that of other officers reporting to the scene of the crime (particularly with respect to the direction Wheeler claimed Garvin had been heading), dealt another blow to his credibility. Finally and perhaps most damaging to Wheeler‘s credibility, the entry and exit wounds on Garvin‘s body were inconsistent with Wheeler‘s description of the shooting according to the IPD‘s forensic scientists. Judge Dillin correctly observed that this is a factual, not a legal, dispute. We have consistently held that a cry of “I didn‘t do it” does not present any distinctly legal issue or seek protection from legal uncertainty, and therefore cannot be raised in an interlocutory appeal from the denial of qualified immunity. Taboas, 149 F.3d at 579; Gorman v. Robinson, 977 F.2d 350, 354-55 (7th Cir.1992); Elliott v. Thomas, 937 F.2d 338, 342-43 (7th Cir.1991). Mitchell does not allow us to hear disputes on interlocutory appeal regarding which facts the parties might be able to prove at trial. 472 U.S. at 530; see also Johnson, 515 U.S. at 319-20.
Wheeler had a thirty-day window in which to file a notice of appeal challenging Judge Dillin‘s legal conclusions regarding his motion for summary judgment and he failed to do so. We are without jurisdiction to hear his belated appeal. For the foregoing reasons, we DISMISS the appeal for lack of jurisdiction.