Mckinney v. DuplainMckinney v. Duplain
Scott E. Shockley, Defur, Voran, Hanley, Radcliff & Reed, Muncie, IN, John F. Kautzman, Ruckelshaus, Roland, Hasbrook & O‘Connor, Bradley L. Williams (argued), Ice Miller LLP, Indianapolis, IN, for Defendant-Appellant.
Before RIPPLE, MANION, and KANNE, Circuit Judges.
MANION, Circuit Judge.
Michael McKinney‘s father, Timothy McKinney, as representative of Michael‘s estate, sued Officer Duplain under
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 McKinney, 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!
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 pounding 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 proximity 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, although 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.”
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 or 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 lateral chest. The autopsy further 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 seconds 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 observed 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 representative 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
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
[e]very person who, under color of any statute, ordinance, 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 Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .
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, 425 F.3d at 460 (quoting Anderson v. Creighton, 483 U.S. 635, 638 (1987)). The Supreme Court in Saucier v. Katz, 533 U.S. 194 (2001), summarized the two-part test for qualified immunity. “First, a court must decide whether the facts, when viewed in the light most favorable to the plaintiff, indicate that the officer‘s conduct violated some constitutional right of the plaintiff.” Jones, 425 F.3d at 460 (citing Saucier, 533 U.S. at 201). If so, the “court must determine whether the constitutional right violated was ‘clearly established’ at the time of the alleged violation.” Jones, 425 F.3d at 460 (quoting Saucier, 533 U.S. at 201). “Unless the answer to both questions is ‘yes,‘” a government official is entitled to qualified immunity. Jones, 425 F.3d at 460.
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
Officer Duplain argues that he is entitled to qualified immunity because, given the totality of the circumstances, it was objectively reasonable for him to use deadly force against McKinney once McKinney charged him. Specifically, 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,
McKinney claims that, under Johnson, this court lacks jurisdiction to hear Officer Duplain‘s appeal because the district court denied Officer Duplain summary judgment 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 man 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.
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 judgment 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 explained, ”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 whether the evidence could support a finding that particular conduct occurred, the question decided is not truly ‘separable’ from the plaintiff‘s claim, and hence there is no ‘final decision.’ . . .” Id. However, the Behrens Court stressed that ”Johnson reaffirmed that summary judgment determinations 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, 515 U.S. at 317). The Court in Behrens further emphasized that ”Johnson permits petitioner to claim on appeal that all of the conduct which the District Court deemed sufficiently supported for purposes of summary judgment met the [qualified immunity] standard of objective legal reasonableness.” Id.
This court considered the scope of Johnson in Leaf v. Shelnutt, 400 F.3d 1070 (7th Cir. 2005). In Leaf, members of John Leaf‘s family sued, among others, two sheriff‘s deputies, alleging they unlawfully searched Leaf‘s apartment, unlawfully seized him, denied Leaf life, liberty and property without due process of law, and that Deputy Shelnutt had used excessive force against Leaf. Id. at 1075-76. The claims all stemmed from an early morning incident on May 5, 2001, when John Leaf returned home from a night of drinking. Id. at 1074. He had turned over his keys to a friend and taken a taxicab home to his apartment at Lake Nora Arms Apartments. Id. In addition to his car keys, Leaf had given his friend his apartment key and thus had to force his way into his own apartment. Id. Neighbors heard the glass breaking and went to investigate. Leaf introduced himself to the other tenants and explained that he lived in the apartment but did not have his keys. Id. None of the other tenants had met Leaf before that evening. Id. After talking briefly with Leaf, they returned to their own apartments. Id. They later called 911, but hung up before the call was answered. Id. Deputy Jacobs responded to the incomplete 911 call. Id. When he arrived about 1:20 a.m., the neighbors explained that they had seen a man breaking a window to enter an apartment but that he had claimed to be the occupant of the apartment and that he did not have his keys. Id. Deputy Jacobs then went to Leaf‘s apartment, saw the patio door open, a rear window broken, and something pushed up against the front door.
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 qualified 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 which 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 conclusions 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, 515 U.S. at 317, 319).
Notwithstanding the limitations of Johnson, we determined in Leaf that we had jurisdiction to consider Deputy Shelnutt‘s appeal. Although the district court in Leaf characterized the questions as factual questions, this court concluded that the real question was whether, taking 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.
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 summary 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 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.” 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 contradicted 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 conclusion 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 experts 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 numerous problems with the experts’ opinions, we would have great difficulty in finding them admissible under Daubert.
The Sixth Circuit reached the same conclusion in Ellis v. Washington County and Johnson City, Tenn., 198 F.3d 225 (6th Cir. 1999). In Ellis, the mother and minor child of a pretrial detainee sued under
We are likewise constrained by Johnson and thus, notwithstanding 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, 400 F.3d at 1080. Officer Duplain also correctly notes that the issue of qualified immunity “should be resolved at the earliest possible stage in the litigation.” Bleavins v. Bartels, 326 F.3d 887, 891 (7th Cir. 2003). However, the Supreme Court in Johnson, while acknowledging those principles, nonetheless concluded that other policy concerns outweighed the need for an immediate appeal. See Johnson, 515 U.S. at 317-18 (noting that “the countervailing considerations that we have mentioned (precedent, fidelity to statute, and underlying policies) are too strong to permit” an immediate appeal). Specifically, the Court in Johnson reasoned that “the existence or nonexistence of a triable issue of fact . . . is the kind of issue that trial judges, not appellate judges, confront almost daily.” Id. at 316. Additionally, “questions about whether or not a record demonstrates a ‘genuine’ issue of fact for trial, if appealable, can consume inordinate amounts of appellate time. . . . To resolve those controversies—to determine whether there is or is not a triable issue of fact about such a matter—may require reading a vast pretrial record, with numerous conflicting affidavits, depositions, and other discovery materials. This fact means . . . greater delay.” Id. Finally, the Supreme Court noted that “the close connection between this kind of issue and the factual matter that will likely surface at trial means that the appellate court, in the many instances . . . may well be faced with approximately the same factual issue again, after trial, . . . [which would] require it, once again, to canvass the record.” Id. at 316-17. Thus, “an interlocutory appeal concerning this kind of issue in a sense makes unwise use of appellate courts’ time, by forcing them to decide in the context of a less developed record, an issue very similar to one they may well decide anyway later, on a record that will permit a better decision.” Id. at 317.
Alternatively, Officer Duplain argues that this court has pendent appellate jurisdiction to consider his Daubert challenge. The Supreme Court in Swint v. Chambers County Commission, 514 U.S. 35, 51 (1995), “set out a general rule against 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., 145 F.3d 1087, 1092 (9th Cir. 1998) (citing Swint, 514 U.S. at 51). Thus, “the doctrine of pendent appellate jurisdiction . . . allows a court of appeals ‘to review an otherwise unappealable interlocutory order if it is inextricably intertwined with an appealable one.‘” Montano v. City of Chicago, 375 F.3d 593, 599 (7th Cir. 2004) (quoting Jones v. InfoCure, Corp., 310 F.3d 529, 536 (7th Cir. 2002)).
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, 375 F.3d at 599 (holding that pendent jurisdiction allows review of an unappealable order “if it is inextricably intertwined with an appealable one“) (internal quotation omitted) (emphasis added). Yet, we have already determined that McKinney‘s excessive force claim is not appealable because the district court concluded that a genuine issue of material fact existed as to whether McKinney charged Officer Duplain. Now, it is true, as we stressed in Leaf, that “[a] defendant may appeal the denial of qualified immunity with respect to particular claims even when he still will be required to go to trial on a matter separate from the claims for which he asserted qualified immunity.” Leaf, 400 F.3d at 1078. Thus, if a plaintiff “seeks relief for a single incident on multiple theories of liability,. . . the defendant does not lose his right to appeal the denial of qualified immunity as to one theory of liability even when he still will be required to go to trial on another theory.” Id. at 1078-79. Here, however, although McKinney attempts to present several distinct issues on appeal, those issues all relate to the same underlying excessive force claim. For instance, McKinney focuses on how Officer Duplain identified himself (or failed to do so), but this, by itself, does not present an independent basis for liability. Likewise, the high incidence of intoxicated college students in the Village do not present an independent constitutional claim. Rather, these facts relate to the totality of the circumstances underlying McKinney‘s excessive force claim. This scenario contrasts with Leaf, in which the plaintiffs had alleged numerous distinct claims, including an unconstitutional entry, unconstitutional search, unconstitutional seizure, and unconstitutional shooting. Leaf, 400 F.3d at 1076. The final two aspects of McKinney‘s excessive force claim could, plausibly, be read as two distinct theories of liability: First, that Officer Duplain violated the
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 Supreme 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 DISMISS for lack of jurisdiction.