*1 Before R IPPLE , M ANION , and K ANNE , Circuit Judges. M ANION , Circuit Judge. Miсhael McKinney’s father, Timothy McKinney, as representative of Michael’s estate, sued Officer Duplain under 42 U.S.C. § 1983, alleging a claim of excessive force after Officer Duplain shot and killed Michael while responding to a 911 burglary-in-progress call. Officer Duplain moved for summary judgment based on qualified immunity. The district court denied the motion and Officer Duplain appeals. We dismiss for lack of jurisdic- tion.
I.
On Saturday night, November 7, 2003, 21-year-old Ball State University student Michael McKinney went out drinking with some college friends. McKinney stayed out until closing time, leaving the last bar he had visited at 3:00 a.m. At approximately 3:15 a.m., another student, Brent Archambault, saw McKinney intoxicated and crawling on his hands and knees on North Street—a street near campus in an area called “The Village.” McKinney eventually worked himself up into a sitting position, leaning against a tree. Archambault approached MсKinney, asked if he needed any help, and offered him a ride home. McKinney told Archambault to leave him alone, indicating that he was already at his house. In fact, McKinney was not at home, but rather in front of the house of widow Jane Poole. One of McKinney’s friends, Phil Justevice, later surmised that McKinney thought he was at Justevice’s house, which was down the block.
A little while later McKinney made his way from the front yard to the back of Poole’s home. McKinney then began banging on her patio door, pulling the door trying to gain entry. Poole heard the noise, went downstairs, flipped on the outside light and peeked through the blinds on the sliding glass door. There she saw McKinney, whom she later described as “a skinhead, fairly big looking guy.” McKinney continued to pound on the door and pull on the handle, seeking entry. Not recognizing McKinney and fearing for her safety, Poole called Delaware County 911. The call came in at approximately 3:26 a.m., and a recording captured the following exchange:
911: 911, what’s your emergency?
Poole: Hurry, someone’s pounding, a man’s pounding on my back door.
911: What’s your address?
Poole: 1325 W[est] North Street. He’s at the back door, he’s pounding really hard.
911: Okay. Do you know who it is?
Poole: No, no!
911: Okay, what’s your phone number?
Poole: 482-7613
911: Are you expecting anybody?
Poole: No, no!
911: What’s your name?
Poole: Jane Poole. Please hurry!
911: Okay, we’re on the way, ma’am. Do you know what he looks like?
Poole: No!
911: Okay, do you know if it’s a male or not? Poole: Yes, yes. He had no hair, white, very white. 911: Is he still there?
Poole: Yes, he’s been pounding.
911: Is he saying anything?
Poole: No! He’s just trying to get in, please! 911: We’re on the way, ma’am. How long has he been there? Hello? She just hung up on me.
Unbeknownst to the 911 operator, Poole had hung up to call her neighbors, Mike and Nancy Ellis. Poole told Mike Ellis about the situation, but told him not to come over as she had already called the police. The Ellises then went to a second-story bedroom window which overlooked Poole’s backyard. From there, Mike Ellis saw McKinney move away from Poole’s deck and toward a tree in the backyard. Mike Ellis noticed McKinney stumble and testified that he appeared intoxicated. Nancy Ellis also described McKinney as “very wobbly.”
Based on the 911 call, the Muncie Police Department (“MPD”) dispatched officers to “1325 W[est] North on a burglary in progress.” A few moments later, the MPD dispatcher reported an “emergency at 1325 West North,” and then “[f]emale advised there was a subject pounding at the door. It was a white male with no hair. He’s still pound- ing at the back door. Female subject just hung up on us. Trying to make contact back. All units unable to make contact back to female.”
The MPD dispatched four officers—25% of its total available force—to Poole’s home. Additionally, the MPD requested the assistance of the Ball State University Police Department (“BSUPD”). Because of the close proxi- mity of their patrol areas, BSUPD continually monitors MPD dispatches. Four BSUPD officers responded to the dispatch: Officers Robert Duplain, Matt Gaither, and Eric Perkins and their shift supervisor, Corporal David Bell.
The four BSUPD officers, driving separate vehicles, arrived at Poole’s residence between 3:26 a.m. and 3:27 a.m. After arriving, Corporal Bell and Officer Perkins walked up the east side of the house with their weapons drawn and Officer Gaither went to check the front of the house. Officer Duplain, seeing the other areas covered, approached the backyard from the west side of the house.
As they approached Poole’s backyard from the east side, Corporal Bell and Officer Perkins discovered their access blocked by a six-foot-tall wooden fence that ran from the southeast corner of Poole’s house, curved around the backyard, and then joined a detached garage on the south side. At the same time, Officer Duplain made his way down a rough, narrow stone walkway along the west side of the house. Like his fellow officers, Officer Duplain had also drawn his service weapon.
When Officer Duplain entered the backyard, he saw McKinney standing under a tree approximately ten to twenty feet away. The parties dispute what happened next. Officer Duplain explained that after entering the backyard, he began shouting commands at McKinney, al- though the various witnesses heard different things. Officer Duplain remembers saying: “Police. Show me your hands. Get on the ground. Get the f—on the ground. Get on the ground now.” Mike Ellis heard only the words “Hey hey” and possibly, “Stop right there.” Nancy Ellis remembered “Hey, hey.” Poole heard “Hey.” Corporal Bell remembered hearing shouts similar to what “you would hear a police officer shout to someone . . . it sounded like lawful verbal orders, ‘Stop. Get on the ground.’ ” Officer Perkins heard Officer Duplain say “Get on the ground. Get on the ground. . . [and] a couple, Get the f—on the ground,” as well as “Police.”
While the witnesses all heard different commands, the Ellises both testified that, from their vantage point next door, they were able to recognize Officer Duplain as a police officer. Specifically, Mike Ellis testified that he observed Officer Duplain wearing a dark uniform, and Nancy Ellis noticed an insignia on Duplain’s shoulder. Additionally, the neighbor to the east of Poole’s house, Donna Winters, stated that she likewise recognized the individuals approaching the backyard as police officers.
Officer Duplain further testified that while he was shouting commands to McKinney, McKinney showed no signs of intoxication, but instead turned toward Officer Duplain until he was “squared up.” Officer Duplain explained that this took two оr three seconds and that then McKinney suddenly charged him. Officer Duplain stated that he thought he would have to fight McKinney if McKinney reached him. According to Officer Duplain, he feared that McKinney had a weapon or would try to take his weapon. Officer Duplain testified that he feared for his life, as well as for the safety of the other officers and Poole. Officer Duplain explained that when McKinney came within a few feet of him, he fired his service weapon. As McKinney continued to advance, Officer Duplain fired again.
An autopsy later revealed that Officer Duplain shot McKinney four times: (1) an entrance gunshot wound just below the left eye; (2) an entrance gunshot wound to the left chest that pierced the left and right ventricles of the heart; (3) an entrance gunshot wound to the left shoulder that shattered the humerus bone; and (4) an entrance gunshot wound to the left latеral chest. The autopsy fur- ther established that the four bullets entered McKinney’s body at a downward angle from the horizontal plane, and toxicology results showed that McKinney’s blood alcohol level was .343.
The Ellises witnessed the shooting, and both testified that Officer Duplain did not fire his weapon until a few sec- onds after McKinney charged, and not until McKinney came within a few feet of Officer Duplain. Mike Ellis stated that McKinney “was running at the officer.” Nancy Ellis ob- served McKinney “running. He came forward very assertively, very quickly toward the police officer.” According to Nancy Ellis, McKinney “leaped toward the officer. He charged toward the officer.” Mike Ellis also observed McKinney “lunging toward the officer” with his left arm out as he got near.
After hearing the shots, Corporal Bell kicked in the gate at the south side of Poole’s backyard, entering the backyard between three to five seconds after the shots were fired. He saw Officer Duplain standing upright near the west edge of the concrete patio, with McKinney laying on his side about three to four feet away. Corporal Bell turned McKinney on his back and performed CPR until medical assistance arrived. The MPD officers had also arrived by this time and by agreement MPD took over the investigation of the shooting. McKinney was later pronounced dead at Ball Memorial Hospital.
A little over three months later, on February 10, 2004, McKinney’s father, Timothy McKinney, as personal repre- sentative of his estate, and McKinney’s parents, in their own capacities, filed a two-count complaint against Officer Duplain and Ball State Director of Public Safety, Gene Burton. The McKinneys sued the defendants in their individual and official capacities. Count I of the complaint alleged an excessive force claim under 42 U.S.C. § 1983 against Officer Duplain, and Count II asserted a § 1983 claim against Burton, for allegedly creating and maintaining policies at Ball State University that exhibited deliberate indifference to the constitutional rights of persons at Ball State University. The district court granted the defendants’ motion to dismiss the official capacity claims as barred by the Eleventh Amendment.
8
Officer Duplain and Director Burton then filed motions for summary judgment on the individual capacity claims, asserting the defense of qualified immunity. In opposing Officer Duplain’s motion for summary judgment, McKinney proffered testimony from several experts. Based on these reports, the Estate argued that McKinney did not charge Officer Duplain, but instead “McKinney was shot twice from the back left side while he was standing still. Then, after he turned and started to fall in the direction of Duplain, he was shot two more times while he was close to the ground.” The district court granted Director Burton’s motion and denied Officer Duplain’s motion. The district court later granted Officer Duplain’s motion to dismiss Michael’s parents’ § 1983 claims (the claims they brought in their own capacities, as opposed to in a representative capacity on behalf of Michael). Officer Duplain appeals from the denial of his motion for summary judgment.
II.
On appeal, Officer Duplain argues that he is entitled to qualified immunity and that the district court erred in denying his motion for summary judgment on McKinney’s § 1983 claim. Section 1983 provides that
[e]very person who, under color of any statute, ordi- nance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitutiоn and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .
42 U.S.C. § 1983. Thus, to state a claim for relief under
§ 1983, plaintiffs “must allege: (1) they were deprived of a
right secured by the Constitution or laws of the United
States, and (2) the deprivation was visited upon them by
a person or persons acting under color of state law.”
Jones v.
Wilhelm
,
In its complaint, the Estate alleged that Officer Duplain,
while acting under color of state law, violated McKinney’s
constitutional rights by shooting and killing him. Officer
Duplain contends that he is entitled to qualified immunity
for his actions. “The doctrine of qualified immunity
shields government officials against suits arising out of their
exercise of discretionary functions ‘as long as their actions
could reasonably have been thought consistent with the
rights they are alleged to have violated.’ ”
Jones
,
The first question, then, is whether Officer Duplain’s
shooting of McKinney violated “some constitutional right.”
Id.
It is well established that “[a] police officer’s use of
deadly force constitutes a seizure within the meaning of
the Fourth Amendment, and therefore it must be reason-
able.”
Scott v. Edinburg
, 346 F.3d 752, 755 (7th Cir. 2003).
Deadly force is reasonable if a law enforcement officer “has
probable cause to believe that the suspect poses a threat
of death or serious physical harm to the officer or others
and, whenever pоssible, warns the suspect before firing.”
Sherrod v. Berry
, 856 F.2d 802, 805 (7th Cir. 1988). Thus,
“when an officer believes that a suspect’s actions places
him, his partner, or those in the immediate vicinity in
imminent danger of death or serious bodily injury, the
officer can reasonably exercise the use of deadly force.”
Id.
(emphasis deleted). Moreover, “[t]he particular use of
force must be judged from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of
hindsight.”
Graham v. Connor
, 490 U.S. 386, 396 (1989).
Additionally, the Supreme Court has instructed that “[t]he
calculus of reasonableness must embody allowance for
the fact that police officers are often forced to make split-
second judgments—in circumstances that are tense, uncer-
tain, and rapidly evolving—about the amount of force that
is necessary in a particular situation.”
Graham
,
Officer Duplain argues that he is entitled to qualified immunity becausе, given the totality of the circumstances, it was objectively reasonable for him to use deadly force against McKinney once McKinney charged him. Specifi- cally, Officer Duplain points to the fact that dispatch had reported a burglary-in-progress, in which 911 had lost contact with the caller. Officer Duplain further notes that many burglars are armed and that losing contact with a caller indicates that an intruder may have entered the house and attacked the victim. Although that was not the case here, Officer Duplain did not know that Poole had hung up to call her neighbors. Additionally, Officer Duplain points to the number of responding units, showing how seriously both the MPD and the BSUPD took the call. Finally, Officer Duplain argues that once McKinney charged him, he had no choice but to fire, as a hedge prevented him from moving backwards, and he was separated by a fence from other officers. Officer Duplain explains that he did not know that McKinney was unarmed and that even if he had known, he feared that if McKinney reached him, McKinney may have turned his service weapon against him.
McKinney counters that this court lacks jurisdiction to
consider whether Officer Duplain acted reasonably in using
deadly force. Generally speaking, 28 U.S.C. § 1291 does not
confer jurisdiction to review a district court’s denial of
summary judgment.
See Jones
,
McKinney claims that, under Johnson , this court lacks jurisdiction to hear Officer Duplain’s appeal because the district court denied Officer Duplain summary judg- ment based on its conclusion that genuine issues of material fact exist. In support of his position, McKinney points to the district court’s order which concludes:
There are genuine issues of material fact as to whether it was objectively reasonable for Officer Duplain to use deadly force during his encounter with Michael on November 8, 2003. First, there is an issue of fact as to whether it was reasonable for Officer Duplain to believe that the situation he encountered posed a threat of serious physical harm to him or to others. The evidence reflects that the officers were alerted to the fact that a mаn was knocking on Poole’s back door in an attempt to enter her residence. Further, Poole prematurely hung up during her 911 call, alerting dispatch to the fact that the situation may have escalated. There is also evidence to show, however, that Poole lived near The Village, an area of the Ball State campus known for its bars. Thus, it was not uncommon for intoxicated college students to frequent her neighborhood at late hours. Nor was it unusual for the BSUP[D] to receive calls involving intoxicated individuals, particularly on Saturday nights while Ball State was in session. Sergeant Rhonda Clark testified that 75-80% of the calls that BSUP[D] receives concern intoxicated college students. Second, there is conflicting evidence as to whether Officer Duplain sufficiently alerted Michael to his presence on the scene. . . . Officer Duplain remembers saying, “Police. Show me your hands. Get on the ground. Get the f—on the ground. Get on the ground now.” Mike Ellis, who watched the encounter take place from his second floor bedroom, heard him say, “hey, hey” and possibly “stop right there.” Poole, behind her patio doors, only heard the word “hey.” Third, Officer Duplain testified that he shot at Michael as he charged toward him. This fact is contradicted by the forensic evidence submitted by Plaintiffs. Indeed, there is even conflicting evidence on the sequence of the shots fired. Finally, there is an issue of fact as to whether the number of shots fired was reasonable under the circumstances.
Officer Duplain concedes that the district court concluded that there were four genuine issues of material fact but argues “[t]hree of the four disputed issues identified by the Court are clear questions of law,” and that on the fourth issue, the district court erred in considering the proffered expert opinions without applying Daubert . Under Johnson , “[t]he dividing line that separates an immediately appealable order from a nonappealable one in these pur- lieus is not always easy to visualize.” Diaz v. Martinez , 112 F.3d 1, 3 (1st Cir. 1997). Therefore, before consider- ing Officer Duplain’s arguments, we begin with a review of the Johnson decision.
In Johnson , the plaintiff, Houston Jones, sued several policemen, claiming the officers used excessive force when they arrested him and later beat him at the police station. Johnson , 515 U.S. at 307. Five officers arrested Jones or were present when he was booked. The arresting officers had found Jones lying on the street; the officers thought Jones was drunk, but, in reality, he had suffered an insulin seizure. Id. When Jones came to, he was in a hospital with several broken ribs. Id. Three of the officers moved for summary judgment, arguing that Jones failed to present sufficient evidence that they had either beaten him or been present when others had done so. Id. Jones responded by pointing to his own deposition testimony in which he swore that officers (although he did not identify which ones) had used excessive force when arresting him and later at the police station. Id. Jones further pointed to the depositions of the three officers, all of whom admitted they were present at the arrest and in or near the booking room when Jones was there. Id. at 307-08. The district court concluded that this evidence was sufficient to create a genuine issue of fact as to whether the three officers stood by and watched the beating, and if they had done so, that was sufficient to create liability. Id. at 308. The officers appealed, arguing that “the denial was wrong because the record contained not a scintilla of evidence . . . that one or more of them had ever struck, punched or kicked the plaintiff, or ever observed anyone doing so.” Id. (internal quotations omitted). This court refused to consider the officers’ argument, holding that we lacked appellate jurisdiction to determine whether the record contained sufficient evidence to raise a “genuine” issue of fact for trial. The officers appealed to the Supreme Court. The Supreme Court in Johnson affirmed, holding “that a defendant, entitled to invoke a qualified immunity defense, may not appeal a district court’s summary judg- ment order insofar as that order determines whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial.” Id. at 319.
The Supreme Court later clarified the scope of
Johnson
in
Behrens v. Pelletier
, 516 U.S. 299 (1996). In
Behrens
, the
Court explained that “
Johnson
surely does not mean that
every
such denial of summary judgment is nonappealable.”
Id.
at 313 (emphasis in original). Rather, the Court ex-
plained, “
Johnson
held, simply, that determinations of
evidentiary sufficiency at summary judgment are not
immediately appealable merely because they happen to
arise in a qualified-immunity case; if what is at issue in
the sufficiency determination is nothing more than wheth-
er the evidence could support a finding that particular
conduct occurred, the question decided is not truly ‘separa-
ble’ from the plaintiff’s claim, and hence there is no ‘final
decision.’ . . .”
Id.
However, the
Behrens
Court stressed
that “
Johnson
reaffirmed that summary judgment determina-
tions
are
appealable when they resolve a dispute concerning
an ‘abstract issu[e] of law’ relating to qualified immunity,
typically, the issue whether the federal right allegedly
infringed was clearly established . . . .”
Id.
(quoting
Johnson
,
This court considered the scope of
Johnson
in
Leaf v.
Shelnutt
,
As noted, Leaf’s family sued (among other officials) Deputies Shelnutt and Jacobs, although they later settled with Deputy Jacobs. Id. at 1076. Deputy Shelnutt moved for summary judgment, arguing that he was entitled to quali- fied immunity. Id. The district court denied Deputy Shelnutt’s motion in part, and Deputy Shelnutt appealed. Id. at 1077 n.3. On appeal, this court summarized the district court’s ruling, explaining:
The district court denied Deputy Shelnutt qualified immunity because it found that questions of fact existed respecting four actions that he took on May 5, 2001: (1) his entry into Mr. Leaf’s apartment; (2) his subsequent search of Mr. Leaf’s apartment; (3) his conduct toward Mr. Leaf while Mr. Leaf was lying on the bed; and (4) the manner in whiсh he shot Mr. Leaf. The district court also denied Deputy Shelnutt qualified immunity for the excessive force claim on the ground that, because the first three actions listed may have violated Mr. Leaf’s constitutional rights, Deputy Shelnutt may have created the need for force in such a way that his ultimate shooting of Mr. Leaf was tainted by prior unconstitutional acts.
Id. at 1080-81 (internal quotations omitted).
In summarizing the Supreme Court’s holding in
Johnson
,
in
Leaf
we noted that we “may not reconsider the district
court’s determination that certain genuine issues of fact
exist. . . . Thus, we may not make conclusions about which
facts the parties ultimately might be able to establish at
trial.”
Id.
at 1078. We further explained that “[s]uch con-
clusions concern the ‘sufficiency of the evidence’ and are not
properly before a court of appeals considering the denial of
qualified immunity.”
Id.
Conversely, we stressed, “when the
outcome of a question of law—for instance, whether a
particular action violates the Constitution—does not depend
on the outcome of a disputed factual question, we may
review whether the district court correctly determined the
question of law that it considered.”
Id.
As we explained,
under
Johnson
, these “are the ‘more abstract issues of law’ to
which an appeal of the denial of qualified immunity
properly is limited. When conducting such a review, we
simply take, as given, the facts that the district court
assumed when it denied summary judgment for that
(purely legal) reason.”
Id.
(quoting
Johnson
,
Notwithstanding the limitations of Johnson , we deter- mined in Leaf that we had jurisdiction to consider Deputy Shelnutt’s appeal. Although the district court in Leaf charac- terized the questions as factual questions, this court concluded that the real question was whether, tak- ing the facts as assumed by the district court, Deputy Shelnutt’s actions violated the Constitution. Id. at 1081-82; 1085; 1088; 1091-93. This question of law was within our jurisdiction. We then held that, as to each claim Deputy Shelnutt challenged on appeal, [2] the facts failed to establish a constitutional violation and therefore Deputy Shelnutt was entitled to qualified immunity. Id. at 1081-82; 1085; 1088; 1091-93.
Officer Duplain similarly argues that although the district court characterized the issues as factual questions, he is not challenging the facts as assumed by the district court but rather whether those facts violate clearly established constitutional principles. First, Officer Duplain points to the district court’s conclusion that a genuine issue of material fact existed as to whether he “believe[d] that the situation he encountered posed a threat of serious physical harm to him or to others.” The district court reached this conclusion based on evidence that intoxicated college students often frequented Poole’s neighborhood late at night. The district court likewise relied on evidence that on Saturday nights while Ball State was in session, 75-80% of thе calls that the BSUPD received concerned drunk students. [3] Officer Duplain stresses that on appeal he is not challenging those facts but rather is making a purely legal argument—that taking the facts as assumed by the district court, his conduct did not violate the Constitution. Next, Officer Duplain points to the second genuine issue of material fact found by the district court, namely “whether Officer Duplain suffi- ciently alerted Michael to his presence on the scene.” Although the evidence conflicted as to what exactly Officer Duplain said when he confronted McKinney in the back- yard, Officer Duplain argues on appeal that he is willing to assume that the most he said was “Hey.” Nonetheless, Officer Duplain argues he is entitled to qualified immunity because the evidence shows that the backyard was well- lit and that neighbors who were much further away from Officer Duplain than McKinney recognized Offiсer Duplain as a police officer. The district court also held that there was “an issue of fact as to whether the number of shots fired was reasonable under the circumstances.” Officer Duplain again argues that he is not challenging any factual finding but rather is arguing the purely legal question of whether shooting a charging suspect four times violates clearly established constitutional principles.
If these were the only genuine issues of material fact the district court found to exist, we would agree with Officer Duplain that jurisdiction would be proper. As the Supreme Court explained in Behrens , “ Johnson reaffirmed that sum- mary judgment determinations are appealable when they resolve a dispute concerning an ‘abstract issu[e] of law’ relating to qualified immunity, [515 U.S.] at 317, typically, the issue whether the federal right allegedly infringed was clearly established, . . .” Behrens , 516 U.S. at 313. Leaf similarly held that “when the outcome of a quеstion of law—for instance, whether a particular action violates the Constitution—does not depend on the outcome of a dis- puted factual question, we may review whether the district court correctly determined the question of law that it considered.” Leaf , 400 F.3d at 1078. And as in Leaf, with respect to the above three issues, Officer Duplain does not challenge the factual assumptions, but rather seeks review of the district court’s conclusion that the assumed facts could violate clearly established constitutional principles.
However, in denying Officer Duplain summary judgment, the district court found a fourth genuine factual issue, namely that while “Officer Duplain testified that he shot at McKinney as he charged toward him [t]his fact is contra- dicted by the forensic evidence submitted by Plaintiffs.” As to this fourth issue, Officer Duplain does not argue that he was legally entitled to shoot McKinney whether or not McKinney charged him. Rather, Officer Duplain argues that there was no admissible evidence that McKinney had not charged him, because the experts’ testimony the district court relied upon was inadmissible under Daubert . On appeal, Officer Duplain then spends a great deal of time in his brief arguing the facts; he highlights the eyewitness testimony—all of which confirmed Officer Duplain’s testimony that McKinney charged Officer Duplain before he fired. Officer Duplain then dissects the various testimony from the experts, pointing out many flaws in their opinions. For instance, Officer Duplain complains that none of McKinney’s experts asserted that they believed “to a reasonable degree of scientific certainty” that McKinney had not charged Duplain. Rather, Officer Duplain notes that the experts used phrases such as “possible” or “more probable.” Additionally, Officer Duplain contends that the opinions failed to take into account all of the physical evidence. For example, one expert stated that McKinney was shot while still at the tree, but Officer Duplain argues that this conclu- sion cannot possibly be true because the tree was on a mound that raised it nearly a foot higher than the patio area from where Officer Duplain had shot McKinney, and the autopsy report stated that the bullets all entered McKinney at a downward angle. That same expert stated that Officer Duplain then moved the body to near the patio, but Officer Duplain claims that the evidence showed that there were no blood stains by the tree. [4] Additionally, Officer Duplain points to the fact that the shell casings were recovered from the right and rear of where he and the witnesses said he stood, not near the tree. Moreover, Officer Duplain argues that the exрerts testified inconsistently that McKinney never charged Officer Duplain, but that the initial shots were fired when McKinney was more than five feet away, but the final shot was within six inches. Were we to review the record and confirm these numer- ous problems with the experts’ opinions, we would have great difficulty in finding them admissible under Daubert .
However, given the mandate of
Johnson
, we lack jurisdic-
tion to conduct such a review of the record. As
Johnson
made clear, a defendant “may not appeal a district court’s
summary judgment order insofar as that order deter-
mines whether or not the pretrial record sets forth a ‘genu-
ine’ issue of fact for trial.”
Johnson
,
The Sixth Circuit reached the same conclusion in
Ellis
v. Washington County and Johnson City, Tenn.,
We are likewise constrained by
Johnson
and thus, notwith-
standing the numerous problems with the proffered experts’
opinions that Officer Duplain identifies, we must dismiss
Officer Duplain’s appeal for lack of jurisdiction. It is true, as
Officer Duplain stresses, that the defense of qualified
immunity is not just a defense to liability, but it also entitles
a defendant not to stand trial.
Leaf
,
Although in some cases, the same factors that the Su- preme Court in Johnson believed weighed against immediate appeal, might instead cut the other way—for instance, where the district court’s mistake seems obvious—the Court in Johnson stressed that it must “of course de- cide appealability for categories of orders rather than individual ordеrs.” Id. at 315. Accordingly, we cannot, in each individual case, “engage in ad hoc balancing to decide issues of appealability.” Id. Therefore, even though in this case a holding that we lack jurisdiction may problem- atically prolong this case, under Johnson that is our only option. However, before this case proceeds further, we 25 would encourage the district court to consider in more detail its reliance on the proffered experts’ opinions. It is unclear from the district court’s opinion if it even applied the Daubert framework. That, of course, is the required starting point. See Ammons v. Aramark Uniform Serv., Inc. , 368 F.3d 809, 816 (7th Cir. 2004) (holding that in reviewing the district court’s decision concerning expert testimony, we must first determine whether the district court properly followed the framework set forth in Daubert ). Nonetheless, under Johnson , our review of any ruling under Daubert cannot proceed at this time.
Alternatively, Officer Duplain argues that this court has
pendent appellate jurisdiction to consider his
Daubert
challenge. The Supreme Court in
Swint v. Chambers County
Community,
514 U.S. 35, 51 (1995), “set out a general rule
аgainst exercising pendent jurisdiction over related rulings
but left open the possibility that appellate courts could
extend such jurisdiction if the rulings were ‘inextricably
intertwined.’ ”
Watkins v. City of Oakland, Cal.
,
To establish pendent appellate jurisdiction, however,
Officer Duplain must first establish at least one appealable
order, because without an underlying “appealable” order,
there can be nothing pendent.
See Montano
,
III.
The district court denied Officer Duplain’s motion for summary judgment based, in part, on its belief that a genuine issue of material fact existed as to whether McKinney had charged Officer Duplain. Although that conclusion rested on the district court’s reliance on several problematic expert opinions, under the Suрreme Court’s holding in Johnson , this court lacks jurisdiction to review the district court’s conclusion that a genuine factual dispute exists. Therefore, we must D ISMISS for lack of jurisdiction. A true Copy:
Teste:
_____________________________ Clerk of the United States Court of Appeals for the Seventh Circuit USCA-02-C-0072—9-12-06
[1] The only issue on appeal is Officer Duplain’s right to summary judgment based on qualified immunity. The McKinneys do not seek review of the district court’s Eleventh Amendment ruling, its ruling as to Director Burton, or the dismissal of the claims they brought in their own capacities.
Notes
[2] Deputy Shelnutt did not argue on appeal that he was entitled to qualified immunity on the excessive force claim because he acted reasonably in shooting Leaf. Id. at 1092.
[3] It is unclear why the district court found this evidence relevant since the call was made to the Delaware County 911 and not to the BSUPD. What percentage of calls to 911 involved intoxicated students is unclear, although it is likely a much lower pеrcentage given that 50% of off-campus calls concern intoxicated students, and thus 50% involve some other disturbance or crime. More importantly, the dispatcher reported a burglary-in-progress and not an incident involving a student.
[4] On appeal, McKinney argues that the physical evidence supports his experts’ conclusion, pointing to photographs of the jacket McKinney was wearing to show the entry points of the bullets. Clothing, however, is moveable, and thus any reliance on the jacket, as opposed to the autopsied body which showed the entry wounds, is misplaced.
[5] Because this court lacks interlocutory jurisdiction in qualified
immunity cases to consider evidentiary challenges, we stress that
district courts should thoroughly consider challenges to the
admissibility of evidence before ruling on summary judgment
motions, as “when acting on a motion for summary judgment, the
judge [should] consider[ ] only evidence that would be admissi-
ble at trial.”
Gustovich v. AT&T Communications, Inc.
,