*1 Nance court overruled plaining that mentioning Priddy). Nothing in Priddy’s,
Stitt, however, hold undermined. Accordingly, we hold burglary. con analysis remains burglary
Priddy’s here, compels us to
trolling, governs bur Ferguson’s prior Tennessee
find Be
glary are violent felonies. convictions convictions, the three such
cause'he has properly him as an sentenced criminal. therefore AF We
armed career court. judgment of the district
FIRM the STINSON, Lee Plaintiff-
Robert
Appellee, GAUGER, T.
James Lowell Rawson, Raymond Defendants-
Appellants. 13-3343, 13-3346 &
Nos. 13-3347 Appeals, States Court
United Circuit.
Seventh
Argued June August
Decided February
Reargued en banc August
Decided *2 WOOD, Judge, Chief
Before FLAUM, BAUER, POSNER, MANION, KANNE, EASTERBROOK, SYKES, ROVNER, WILLIAMS, *3 HAMILTON, Judges. Circuit WILLIAMS, Judge. Circuit years spent twenty-three Robert Stinson jail for not commit. No murder did eyewitness testimony fingerprints or con- him Two the murder. dentists nected to experts as dentition testified that Stinson’s on matched the teeth marks the victim’s guilty. Af- body, and found Stinson helped exonerate Stin- ter DNA evidence son, against this he filed civil suit lead alleging and the dentists detective two they process fabricating violated due to expert opinions failing disclose agreement to fabricate. motions court denied the for defendants’ summary judgment seeking im- munity finding that sufficient evi- on prevail for dence existed Stinson to at trial. claims jurisdiction We conclude that we lack appeals hear defendants’ denial qualified immunity ap- because those fail to take peals the facts and reasonable Kanovitz, Attorney, LOEVY & Michael light inferences record in the from the LOEVY, IL, Chicago, Plaintiff-Appel- for challenge most favorable Stinson lee. questions on the sufficiency the evidence consequence, of fact. aAs Johnson v. Smokowicz, Langley, F. A. Grant Jan Jones, 304, 2151, U.S. S.Ct. Attorneys, ATTOR- MILWAUKEE CITY (1995) interlocutory precludes L.Ed.2d OFFICE, Defendant-Appellant for NEY’S do review. We have consider Gauger. James the district im- court’s absolute denial munity to That Sullivan, Rawson. deni- Maloney, Patrick M. W. Susan al was correct because Stinson’s claims SULLIVAN, Attorney, SIESENNOP & focus their conduct while murder WI, Milwaukee, Defendant-Appellant being not on their trial investigated, Raymond Rawson. testimony or testimony preparation. trial Franckowiak, Attorney, J. Jason I. BACKGROUND ZITZER, OTJEN, GENDELMAN, Waukesha, WI, WEIR, S.C., JOHNSON & As this is from a ruling an appeal Defendant-Appellant judgment, chronology Lowell T. John- summary takes the most son. follows facts non-moving is more commonly up- Stinson as the what called favorable Stinson, See front tooth. judgment. per On party Inc., decayed tooth is fractured Liberty Lobby, Anderson almost gumline. 91 L.Ed.2d (1986). Cychosz lone was murdered Mil- interviews, After finished their waukee, Wisconsin on November two detectives met at the front of the body Sixty of her photographs taken house, Gauger, and Jackelen told “We office, county medical examiner’s him.” The detectives then back went pictures including marks to her bite speak intentionally with Stinson and body. deputy An assistant medical examin- something to make so laugh said er the use of John- authorized Dr. Lowell that his teeth be would visible. Gau- When *4 (the odontology scientific son as forensic ger Stinson missing upper saw that had a teeth) consultant, study and Johnson tooth, thought, front he to according his Cychosz’s examined the bite marks on memoir, Book, later The published Memo par- body. eight complete He identified conviction, long after it Stinson’s “There impres- marks tial bite and took rubber front tooth was. The broken and twist- the right the Cychosz’s sions of bite marks on just diagram ed tooth like the and days .Two later to the breast. he returned (At case, pictures.” deposition his in this office to extract tissue medical examiner’s however, Gauger missing said that the right from her breast. upper tooth the right was on and to side tooth.) right the of the front Gauger Tom James and Jackelen as to assigned the lead investi- detectives the not Gauger This was first time and Cychosz’s heading to gate Before questioned murder. regarding Jackelen had Stinson scene, Gauger the earlier, the crime reviewed case years Two a man named murder. the file that had been two to assembled Ricky during was shot Johnson and killed days According after the robbery, three murder. attempted Gauger and and events, version and before Stinson’s assigned to the Jackelen were case. Stin- Gauger and Jackelen’s first visit he son told the detectives had no informa crime scene November the two regarding Ricky tion who killed met with At that meet- Johnson. detectives responded they detectives * * * photos ing, Johnson showed the you detectives story of all that bull* were “tired drawing bite marks he of the had telling.” charges were in the No filed ever of the told case, Gauger made assailant’s teeth. Johnson wrote The Book but Memo missing detectives assailant friends that he believed Stinson and.his sketch, depicted in' the tooth his lateral Ricky Writing about murdered Johnson. (a upper tooth one memoir, incisor over from Gauger the case in his said “[l]ots teeth). report me- police front There is away get with murder” and people any morializing meeting Johnson open between “be case was still maintained detective right and either before November guys, we had but couldn’t cause prove it.” 6, Gauger On November and Jackelen body his Cychosz’s
went to the area where After interview Stinson they neighbors, home, prosecutors was found met interview the detectives Dan nearby including Attorney District visited home where Stinson Assistant thought questioned while Blinka. Blinka there was not suffi- lived. Jackelen Stinson point at that obtain a Gauger brother. cient interviewed Stinson’s incisor, to examine missing right his central search warrant Stinson’s denti- with the during the crooked teeth consistent Blinka' Johnson front tion. called Johnson. meeting whether Johnson could he had received from and asked information marks the bite at the inspected an identification teeth make Johnson replied that body, twenty and Johnson hearing on the for fifteen seconds. conditions, could, if he he perpe- under for his of-the Johnson asked sketch denti- make-up suspect’s full had a he did dentition, Jackelen trator’s said tion. then copy him. Johnson how similar “remarkable” testified was Gauger On November to the sketch and said Stinson’s teeth were met with Johnson. Novem- Jackelen consistent with that Stinson’s teeth were report states police ber 15 from the expected assailant what missing or offender have a said the would judge marks. The analysis bite his (i.e., upper right central incisor broken to a de- then Stinson- submit ordered tooth). That is the same tooth right front examination, including the tailéd dental observed that Stin- detectives had teeth molds creation wax questioned missing when son was - teeth, of his he did. photographs which him. day, The next interviewed detectives Later, molds compared the *5 other at two men with photographed and the wax of teeth and photographs Stinson’s missing or tooth. Johnson one broken least the bite exemplars of bite with Stinson’s suspects Cychosz’s out as ruled them body, from Cychosz’s mark and looking on at the only photo- based murder opined he teeth were identi- that Stinson’s odontological expert graphs. Stinson’s to those caused the bite cal that marks. Bowers, case, Dr. Michael the current opinion Gauger, conveyed that Johnson for there no scientific was basis states Jackelen, met with Blinka. Blinka and by just these two men Johnson exclude Gauger or and one both of and Johnson looking photographs. at evidence, John- Jackelen to review police a point, At some sketch artist con- son that Stinson’s dentition was said of a second sketch the assailant’s made inflict- person sistent who with that says Johnson he told the artist a dentition. marks on Cychosz.' ed the bite quadrant missing upper in the was tooth However, satisfy Blinka. He that did specify police which one. The but did charges against approve would not Stinson initial sketch make artist used-Johnson’s a from a forensic opinion without second police sketch. Consistent with Stinson’s Dr. odontologist, Johnson contacted So sketch, police theory of Johnson’s initial case, Raymond Rawson about missing a or sk etch reflects broken Gauger telling that he “wanted upper the-upper tooth that odontologist in the the best Unit forensic says front tooth. Johnson he not use did findings.” to confirm his Rawson ed States any point at police artist’s sketch after Vegas, in Las private practice had a dental created. was odontologist since served as a forensic 3, 1984, appeared On Stinson December of the American diplomat 1976 and áwás “John Doe state court hear- Wisconsin Odontology. of Forensic Board subpoena person ing” pursuant to as a who diplomat of the also might knowledge Johnson.had been a information Odontology, of Forensic During American bearing investigation. an Board on this friends and had known hearing, testified he ob- two were Jackelen that - years. On at missing that each.other least seven served Stinson had 17, 1985, January Gauger agreed and Jackelen he with Johnson’s conclusion to a scientific, evidence, Cyc including degree reasonable hand-delivered certainty that den Stinson preserved hosz’s tissue and the caused bite marks on skin Cychosz’s body. tal molds and models Stinson generated, to Las Johnson had Rawson in contrary expert No was offered Vegas. Rawson the evidence reviewed (Stinson’s defense trial. had counsel Gauger’s one to hours in hotel room three hired an odontology did call findings, verbally confirmed Johnson’s trial.) him convicted Stinson saying impressed with the amount was murder, and he received sentence life Gauger evidence. recalled Rawson imprisonment. trial, After x-rays at the said looked and molds and Cychosz used the mark bite evidence for enough for him and that he con teaching career-furthering purposes. curred with Johnson. twenty-three years More than later, 21, 1985, January
A days few conviction, panel of four foren- complaint charged criminal was issued odontologists reanalyzed sic bite mark first-degree Stinson murder evidence and concluded that could trial, Cychosz. Before Johnson authored not have bite made the marks found on expert report setting opinions, testing forth Cychosz. DNA of blood found on including “to a degree reasonable Cychosz’s also clothing excluded Stinson. certainty scientific ... the teeth of Robert Stinson’s conviction vacated Janu- expected produce Lee be ary Stinson would he was released from patterns bite identical those which prison. The State Wisconsin dismissed recorded him charges against July..In [Johnson] examined and April all analysis.” extensive prepared Rawson DNA State Crime Da- Wisconsin *6 one-page expert report that summarized profile DNA tabase matched the reviewing opinions. After Cychosz’s clothing materials on found blood felon, generated, Johnson Rawson stated that of a convicted Moses Price. agreed Cychosz’s Johnson’s conclusion that to pled guilty Price later mur- injuries mark to Stinson caused bite der.
Cychosz. present 42 suit under Stinson filed the here, § against, trial in 1983 as relevant place
Stinson’s
took
December U.S.C.
(Jackelen
Johnson,
Rawson.
any Gauger,
prosecution
1985. The
did
offer
motive,
produce any
away.)
it
passed
evidence of
nor
has
Stinson’s
did
case,
Bowers,
mark
eyewitness testimony
Dr.
reviewed the bite
that connected Stin-
Cychosz’s
son
the bite
testimony
to
Some
concluded that
murder.
suggested
given
on
Stinson.
Cychosz
had
conflict- marks found
excluded
panel,
ing
of his
Bowers conclud-
versions
on the Consistent with the
whereabouts
night
explana-
Cychosz’s
Stinson’s
ed that Johnson’s and Rawson’s
death.
counsel
why
mark
on
any
odontology
appeared
to
tions
a bite
moved
exclude
forensic
trial,
request
Cychosz’s body
Stinson has a miss-
evidence from
where
empirical
“no
or scientific
denied.
at trial that the
tooth has
testified
Cychosz
on
for the absence
bite marks
must have been
basis and does not account
adjacent, fully
any
by
made
marks
devel-
identical in relevant charac-
teeth
oped teeth.”
believed that
to those that Johnson examined
Bowers
teristics
on
Stinson.
that Johnson methods
and Rawson used
Rawson testified
“were
comport
performed
very good work-up”
“a
and that
and did not
with the
flawed
ac-
field of
the defendants were entitled
practice
standards of
cepted
immunity.
granted rehearing en banc.
time.”
at the
Bowers
We
odontology
forensic
degree
that “to
reasonable
concluded
II. ANALYSIS
certainty as a forensic odontolo-
scientific
knowingly
question
any ap
...
Rawson.
gist
Johnson and
threshold
Our
mark evidence and
manipulated
peal
jurisdiction
bite
is whether we have
appear
Congress
granted
‘match’ hear
us
dentition to
the case.
has
appeals
“final
correlation be-
over
was in fact no
deci
when there
sions” of the district
courts.
U.S.C.
and the bite marks
tween Stinson’s teeth
§
denying
An
a motion for
order
Cychosz’s body.”
inflicted
is
summary judgment
usually not a final
Gauger,
and Rawson moved for
§
meaning
decision
within
immunity
judgment
grounds.
generally immediately appealable.
so is not
district court ruled that Johnson
Jordan,
180, 188, 131
Ortiz v.
562 U.S.
to absolute im
Rawson were not entitled
(2011).
884,
Gauger, Rawson appealed. “clearly not es their conduct does violate panel A of our statutory rights concluded or constitutional tablished defendants were a person entitled absolute reasonable would have which immunity, Fitzgerald, we had con- v. 457 U.S. known.” Harlow 800, 818, 2727, appeals of of qualified sider the denial 102 L.Ed.2d 396 S.Ct. 73 (1982). immunity summary judgment, Qualified immunity immunity at is an
523
mary
from suit
just
liability.
judgment
defense to
on the
of qualified
basis
Mitchell,
526,
at
105
immunity
472 U.S.
S.Ct. 2806.
in an excessive force
In
case.
upholding
the-motion,
denial
of evidentiary
“[Determinations
Supreme
recognized
Court
that the district
sufficiency
summary judgment
at
are not
court had stated
were
there
material is
immediately
merely
appealable
because
qualified
sues of fact on which the
immuni
they happen to arise
a qualified-immuni
ty
376, 127
decision
id.
turned.
at
See
S.Ct.
Pelletier,
299,
ty case.” Behrens v.
516 U.S.
Nonetheless,
Supreme
Court ad
313,
(1996).
116 S.Ct.
L.Ed.2d
appeal
dressed the
on the merits.1 In light
that,
Supreme
The
Court ruled Mitchell
videotape
of a
that recorded
sequence
“to the
it turns on
extent that
an issue of
“blatantly
events
contradicted”
law,”
may
a defendant
take an immediate
account,
plaintiffs
the Court concluded
appeal
denying
qualified
of a
him
decision
the defendant
actions
officer’s
were rea
summary
judgment.
at
472 U.S.
sonable and did not violate the Fourth
530, 105
Later,
at
S.Ct. 2806.
case at
Amendment
no
and that
reasonable jury
appeal,
of this
Supreme
heart
380, 386,
could decide
Id. at
otherwise.
Court
appeals
addressed
denial
result,
S.Ct. 1769. As
defendant-offi
qualified immunity
summary
judgment
cer was
judgment.
entitled to
Id.
when the denial is based on a factual dis
386, 127
S.Ct. 1769.
pute
legal
than
question.
rather
See
Jones,
Johnson v.
U.S.
S.Ct.
Supreme
decision in
Court’s
Harris
(1995).
For
L.Ed.2d 238
such
Johnson,
does not
so it
mention
cases,
Supreme
Court made it clear:
overruling Johnson. The Court’s silence
defendant,
“we hold that a
to in
entitled
despite
respondent’s
ar
came
Harris
defense,
qualified immunity
voke a
may
gument to the
juris
Court that
lacked
appeal
summary judg
district court’s
diction because of
See Brief for
Johnson.
qrder
ment order
as that
insofar
deter
1-3,
Harris,
Respondent at
Scott
pretrial
mines whether or not the
record
L.Ed.3d 686
‘genuine’
sets forth a
issue
fact for
(2007),
118977, at
2007 WL
*1-3. There
319-20,
trial.” Id. at
(2014). court denied There defendant, v. Pelle multiple cases. See Behrens summary- son motion officers’ 306, 312-13, tier, 299, 116 S.Ct. 516 U.S. of immuni- basis judgment on the (1996); that, 834, v. 773 133 L.Ed.2d violated ruling officers’ conduct ty, 1800, 911, 922, Fankell, 117 S.Ct. 520 U.S. contrary and was the Fourth Amendment (1997); v. 108 138 L.Ed.2d See id. at 2018. clearly law. established Crawford-El n.18, 574, 595, Britton, 118 597 523 U.S. Supreme Court .unsurprisingly, Again, 1998); (S.Ct. 1584, Rich 759 140 L.Ed.2d question of whether legal decided 402, 117 399, McKnight, 521 ardson v. force and did dis- excessive there was (1997). 2100, 138 540 L.Ed.2d S.Ct. case, jurisdiction. of for lack miss explained: Court very much remains in this case is Court order District The. result, must -to the As a we adhere law. in Johnson. Peti- nothing order like the from appeals between draws distinction officers that other not claim tioners .do qualified im summary judgment of denial Rickard; shooting responsible were evidentiary suffi munity based rulings rather, that their conduct they contend ciency “presenting more ab and those Fourth Amendment not violate the did Johnson, at of 515 U.S. issues law.” stract and, event, any violate did not 317, is If what at issue S.Ct. Thus, legal they raise established law. is sufficiency whether determination issues; quite different these issues are finding support a could issues that the any purely factual occurred, question “the particular conduct if the case might trial confront- from the truly ‘separable’ is decided ‘ tried; this legal of deciding issues claim, is hence there plaintiffs appellate responsibility sort is core ‘final under- Cohen send-Mitchell.” decision’ courts, courts requiring appellate Behrens, 834. So 516 U.S. at S.Ct. decide such is not an undue bur- issues only appeal if “the possible is issue den. concern[s], parties not which- facts ed but, rather, prove, wheth might-be able proceeded at 2019. The Court decide Id. given certain facts show[] er the case on merits. Id. at 2020. Plum- ‘clearly established’ law.” John violation too is As consistent with Johnson. hoff son, (citing S.Ct. Harris, 515 U.S. legal a purely decided Court 2806). Mitchell, U.S. at S.Ct. issue, evidentiary suffi question appeals distinction between Johnson’s ciency. thing The Court the same when did evidentiary sufficiency determinations and interlocutory qualified im it considered an — practical makes legal issues also Luna, those v. munity appeal in Mullenix sense, helps keep qualified principle as the U.S. -, 193 L.Ed.2d S.Ct. rea immunity interlocutory appeals within (2015) question of law whether bounds. sonable force. defendants used excessive determining question basic Supreme has criticized Our No Court decision ap- hnson; contrary,.the whether we over to the Court Jo then, one of our is peal, See whether case rely post-Hams. on it continues to question 2018-19; evidentiary, sufficiency or one v. Plumhoff, 134 S.Ct. Ashcroft in this maintained suit U.S. 662, 671, 673-74, 129 law. Stinson Iqbal, 556 (2009); violated his Gauger, and Rawson Ortiz Jor L.Ed.2d 868 *9 (1) 884, right by: trial 180, 188-91, process to a fair' dan, due 562 U.S. of his fabricating principal evidence (2011). the Nor the Court has 178 L.Ed.2d (the opinions guilt mary that his dentition judgment help record can us to allow Cychosz), legal the bite marks on consider a defendant’s arguments matched (2) disclose, a failing, required by appeal. to Bra- Jones as Clark, (7th 2011). 677, 630 F.3d Cir. dy, agreement the defendants’ to fabricate however, Here, (He premise the of the defen- opinion brought also evidence. true; rather, dants’ assertion is the to conspiracy intervene and claims failure to fail take defendants as claims.). true Stinson’s predicated that were on these two facts, version of the they fail to do so ruling In on the fabrication of evidence significant explained matters. haveWe claim, district the court reviewed the evi- if “we detect a to back-door effort presented summary judgment dence facts, reject contest we will it and materials and concluded that had appeal for jurisdic- dismiss want of get Regard- to evidence to sufficient trial. Id.; (“[A]n tion.” see also id. from a Brady theory, district court qualified immunity denial of cannot be credibility ques- that “there concluded are early way used as an to sufficiency test the preclude summary judgment” tions that to reach the fact. evidence trier of “in jury and so this case the will have to case, In really a where there is no such Jackelen, Gauger, decide whether legal we question, will dismiss lack Rawson, and then impliedly jurisdiction.”). way, ap- Said another “an agreed odontologists opine would pellant challenging a district denial court’s that Stinson’s dentition matched the bite qualified immunity effectively pleads Milwaukee, City marks.” Stinson v. No. interposing disput- himself out court (E.D. *20 C WL in his argument.” ed factual issues Gutier- 30, 2013). Sept. particularly, Wis. More Kermon, (7th rez v. F.3d stated: 2013). Cir. evidence in John- about A factual significant dispute shift tooth regarding son’s which judgment was whether Johnson met missing thought the detectives Gauger and Jackelen before the detectives man, had they the lack of sketch Stinson on interviewed November John hearing, at the Doe Johnson’s call whether, if such a Related Rawson, extremely brief Rawson’s meeting place, gave took physical review of initial evidence in detectives a showed the sketch at Vegas, of gross Las and the existence meeting. The district court concluded errors Johnson’s and review Rawson’s viewing the submitted evidence in the (which physical of the another , Stinson, meeting most such favorable made) says honestly could not be pre- place, during did take provides enough get allow Stinson meeting the de- interview Johnson showed Johnson, Rawson, Gauger before of the tectives a sketch denti- assailant’s evaluation. reflecting right tion a missing tooth to the Id. pre-interview of the central This incisor. On appeal, the defendants as because, meeting is critical if it happened, sert that ac they crediting are changed analy- Stinson’s it showed that Johnson asking only count and for a legal determi Stin- sis after detectives interviewed nation whether Although Stinson’s version under version the son. original missing facts means violated estab sketch showed tooth incisor, right. Accepting lished constitutional of the central after the plaintiffs version of interviewed met the facts in sum- detectives Stinson and *10 first contact- that Blinka the one who November Johnson was
with on Gauger on See analysis and said that the ed focused Rawson. changed his missing right Opening in- Br. at 19. Johnson’s Rawson’s central was assailant acknowledge tooth, they cisor, i.e., is briefs do not which even front other. with each detectives observed ever communicated tooth the had same not Johnson had done missing on Stinson. despite to So their statements the con any analysis of bite marks between not trary, defendants explain 15 that would 6 and November in the light us the record asked to view change. That most to means that favorable Stinson. otherwise, although suggest to they try meeting critical to is pre-interview The asking for of defendants not us review are theory that defendants fabri- law, but question an abstract of rather Brady and failed disclose cated evidence of they seek the district a reassessment material, not credit but the defendants do court’s that sufficient conclusion place took briefs meeting that the their go for trial. existed See Stinson contrary, quoting To the Gau- us. Jones, 680; Gutierrez, F.3d at F.3d visiting ger’s for the account Stinson 1010-11, 1014 (dismissing appeal lack including that first time the detectives jurisdiction qualified immunity where looking for someone with they were knew fact). disputed argument upon tooth, depended and a Gau- missing tooth twisted asserts, ger’s “but since is no there brief appeals of the nature defendants’ meeting with report any Dr. Johnson they not further do demonstrates interview, prior possible it is not to this questions of present requisite abstract any meeting that it came maintain law. Johnson Rawson Respon- Brief for Opening doctor.” See their intentionally opin- did fabricate Gauger Gauger, dent Brady fail to turn over ions and so did 2015) (Nos. (7th 13-3343, 13- F.3d Cir. opinions material. But whether 13-3347). Johnson’s and Rawson’s honestly or mistak- intentionally fabricated 6 pre-interview omit November briefs fact, question question en is despite centrality of it to the meeting, law. lack explains Johnson itself we analysis and Stinson’s fabri- court’s questions factual about over Brady cation claims. in- whether sufficient evidence of there is tent: first call to Rawson is Who made the thing, questions For about dispute historical fact. The another
another dis- that, whether or not record demonstrates a viewing trict court concluded the evi- trial, “genuine” ap- if most issue fact dence favorable Stin- son, pealable, the first Johnson made can consume inordinate contact Many appellate amounts of time. consti- That Johnson made the first con- Rawson. cases, simple tutional to the tort unlike “we significant district court’s tact us, didn’t before involve fac- analysis the call do it” case because allowed about, for example, tual the “desired controversies tell Rawson result” Rawson Stinson, that, trial, before intent —controversies reach. should WL may To resolve was also nebulous. those at *19. This call central to the seem determine controversies —to whether district court’s determination that Rawson issue is a triable of fact conspiracy. there part howev- Gauger, er, require may about again such a read- appeal, states contradiction matter — record, evidence, with numer- pretrial to the view a vast district court’s *11 affidavits, ous conflicting depositions, evidence, for it. From all of this the dis- discovery and other This materials. fact trict court concluded there was sufficient means, Mitchell, compared greater with evidence for a factfinder to draw an infer- delay. ence that the lying. defendants Johnson, 2151; U.S. 115 S.Ct. Rawson, add a bit more about We who Ortiz, see also argues he that was too far removed (stating claims of defendants’ any misconduct and so should qual- receive present legal did not purely is- immunity. ified As emphasizes, he he was “[cjases sues fitting [legal and in the involved meetings November typically bill issue] involve contests not between detectives and or in Johnson occurred, about what or anwhy action was Johnson’s analysis. initial The district omitted, taken disputes about the sufficient found evidence in the rec- clarity law.”). substance and of pre-existing ord liability, noting Rawson’s that it was The district court concluded that Rawson, who first called in the record meant that a rea- when he phrased did Johnson the “second sonable could find opinion” request request aas for confirma- Rawson opinions. fabricated their The dis- tion of opinion, Johnson’s and that Bowers that, trict taking court recounted the rec- stated that could not confirmation be made light Stinson, ord most favorable such a short review. The district court the missing altered tooth identifi- also reasoned that a factfinder could find only cation meeting after detec- complied, that Rawson supported by as tives, after they interviewed Stinson and short amount of time took him to con- observed dentition. Johnson did not firm findings Johnson’s in a Vegas Las any have new making information before room switch, hotel to state concurred with and he has never said the Johnson. change was the evidence a matter reevaluation. The was suffi- Whether district court cient requisite also stated Johnson factfinder find the Rawson had to beyond have known intent to fabricate is scope causing was excluded from the bite interlocutory marks our review. because of obvious differences between is, all, Intent most proven often Stinson’s teeth mark patterns. and the bite See, circumstantially. e.g., Hoskins v. Bowers, Stinson’s in the current Poelstra, (7th 2003) 320 F.3d Cir. case, opined that Johnson and Rawson (stating that a' meeting of “may minds knowingly manipulated mark the bite evi- need to be inferred even after an opportu dence and Stinson’s dentition to make nity discovery, for conspirators rarely them to match. Both the appear four-odon- contracts”); sign Nocar, United States v.
tologist panel and found no empiri- Bowers (7th 1974) (“As 497 F.2d Cir. cal or scientific basis for finding a bite but, courts frequently pointed knowl Cychosz’s mark on body where Stinson has edge proven and intent must often by be missing They inexplica- tooth. also found evidence.”). Rarely circumstantial will ble Johnson’s and Rawson’s conclusion subjective there be an admission intent. upper Stinson’s second molars made a question intent fabricate is a of fact bite mark because molars are so located that the district court far concluded could back in the if be mouth. And by version inferred Stinson’s favor of the facts is the evidence accepted, there was also a cover up summary judgment, tooth the record at switch identification, police report as no challenge accounts defendants’ whether that all the facts fail to appeals take type forbidden endants’ true is judgment in the inferences
Johnson. to Stin- most-favorable Gauger Johnson and knew that Whether son, arguments dispute the dis *12 opinions their that the fabricated Rawson sufficiency trict court’s. conclusions matched Stinson’s den- bite evidence mark questions on of fact. of the evidence With related, important, factual was a and tition law, controlling yery still much Johnson Gauger summary judgment. ar- dispute at jurisdiction the defendants’ lack we over dentist, not a gued he is that because case, immunity appeals this qualified Raw- for Johnson’s and blamed cannot be The district expert son’s conclusions. Not Enti- B. Johnson and Rawson taking Stin- the facts determined Immunity tled to Absolute favor, cognizant “Gauger was son’s argued that Rawson also Johnson and shifting tooth was view which Johnson’s immunity they to absolute were entitled of the fully aware” missing” and “was testifying witnesses. because were John- “contents of with conversations jurisdiction, implied in their second have review what he We son and inter- denials absolute meeting, following immunity his and Jackelen’s .of Mitchell, 525, Stinson,” 105 im- namely Gauger judgment. 472 U.S. at view . opin- 2806 expert result in the S.Ct. plied a desired Stinson, 5447916, *20. 2013 WL ions. § trial in a 1983 Witnesses argues Gauger appeal; But on immunity liability have absolute support in the record not evidence does testimony on their at trial. Briscoe based Gauger knew the conclusion that dentists 325, 345-46, LaHue, 103 v. 460 U.S. S.Ct. Gauger producing opinions. false See 1108, (1983). principle 96 That 75 L.Ed.2d 25-28, challenge to Br. at Opening 40. This here, day however. The carry not does again sufficiency of the that absolute Supreme Court has ruled precluded by Johnson. for trial immunity protects prosecutor conclu- that the court’s note We not preparation trial testimony, might circumstantial evidence sion that Buckley for v. Fitz investigating the case. Gauger between prove intentional collusion simmons, 273, 259, 509 113 S.Ct. U.S. finding experts is and the two kind 2606, 125 (1993); also Reh L.Ed.2d 209 see implicates fact of historical 1497, Paulk, berg 566 v. U.S. Evidence question an “abstract law.” not (2012) n.1, (finding 593 L.Ed.2d support- summary judgment immunity to absolute .for witness entitled agree- that there an inference an grand jury testimony grand jury testi there opportu- ment included that was an im stating mony preparation, but absolute (the nity agree detectives met munity activity all does “to extend Stinson, interviewing grand a witness conducts outside Rawson), later and that Johnson called room”). panel in the we, As discussed odontologist experts say competent .against. Johnson opinion, claims possibly concluded that Stinson could their actions while Rawson focused was the assailant. investigated, Cychosz’s being murder short, testimony prepara like not on at trial or appeals here are In prosecutor And if testify at trial. the facts are tions Harris and where Plumhoff immunity inves only question legal not have clear is the does absolute case, Instead, tigating implication follows of those def facts. judge’s and the does legal
witness does not either. So Johnson
decision
contain a
ruling
Rawson are
entitled
absolute immu
about
For
immunity.
explained my opinion
reasons
nity.
panel,
Johnson does
block
III. CONCLUSION
over
appeal.
v. Gauger,
(7th
2015).
F.3d
838-40
Cir.
qualified immunity appeals
are
dis-
judgment of
in light
and the
the district
must be read
of Scott v.
missed,
Harris,
respect to
U.S.
127 S.Ct.
court is affirmed its abso-
(2007),
rulings.
lute
L.Ed.2d
Rick
Plumhoff
—ard,
-,
134 S.Ct.
*13
SYKES,
Judge, dissenting, with
(2014).
read,
1056
L.Ed.2d
So
Circuit
BAUER, FLAUM,
MANION,
and
whom
apply
not
jurisdiction
does
and we have
to
join.
Judges,
Circuit
and
address
decide whether
the defen
are
qualified
to
immunity.
dants
entitled
My colleagues have misread the district
judge’s
recognize
decision
to
the
and failed
Scott
shed some new
Plumhoff
jurisdictional principle
limits of
announced
jurisdictional
limits- of
the
the Johnson
Jones,
304,
in
515
115
Johnson v.
U.S.
principle,
my colleagues
misap
2151,
(1995).
238
To the
S.Ct.
132 L.Ed.2d
plied
recapi
Johnson on
own
To
its
terms.
judge’s
denying
first
the
decision
point,
tulate, it is long-settled
that
law
an order
summary judgment actually
two
contains
denying
immunity
effectively
claim is
(1)
rulings.
judge
The
held that
the eviden-
respect
right
final
to
the defendant’s
tiary
genuine
reveals
factual dis
trial,
litigation
to
the
of
avoid
burdens
putes
key
about whether certain
events
so appellate
arises
28
under
(2)
occurred; and
§
the defendants are
1291
to
pursuant
U.S.C.
the collateral-
qualified immunity
entitled
because
order doctrine.
v.
472
Forsyth,
Mitchell
record,
in
in
evidence
when construed
524-25,
U.S.
105
86
S.Ct.
favor,
permit
Robert
would
(1985).
411
L.Ed.2d
Johnson announced
they
that
violated
reasonable
find
general
to this
rule. The
exception
limited
by fabricating
his
right
process
defendant,
due
Supreme Court
that “a
held
him,
used to
see
wrongly
evidence
convict
entitled
invoke a
de
v.
682
Brueggemann,
fense,
Whitlock
F.3d 567
a district court’s
may
(7th
2012),
suppressing
Cir.
evidence
summary judgment
as. that
order insofar
fabrication,
Brady Maryland,
pre
or not
see
order
determines whether
(S.Ct. 1194, 10
‘genuine’
L.Ed.2d
trial record sets forth a
issue
1963),
clearly
319-20,
both which
are
established
fact for trial.”
U.S. at
added).
constitutional violations.
2151 (emphasis
S.Ct.
“insofar,
judge’s
sepa-
language
is
neatly
important.
The
order does
as”
The
(1)
(2),
rulings
opinion.
rate
which I confess So
context
is
Court’s
police
correctly apply
plaintiff
it more
The
in
sued five
makes
difficult
they severely
alleging
the Johnson
But
beat
principle.
the absence
officers
that
arrest,
during
breaking
in
him
ribs
judge’s reasoning
clean lines
does
his
his
so
requiring hospitalization,
make the entire
and in
decision unreviewable.
doing
is to
Our task
whether
deci-
determine
violated
Fourth Amendment
legal ruling
sion
be
below contains
about
seizure.
free from unreasonable
does,
may
qualified immunity. If it
Id. at
then we
S.Ct.
Three
Here,
question
summary judgment,
it.
no
officers moved for
review
there’s
arguing
any
heart of
legal question'
is the
at the
claiming qualified immunity and
they
is
plaintiff
qualified-immunity-claim
immediate
that the
had
appealable under
notwithstand
beating.
ly
Id.
Mitchell
actually
involved
307-08,
holding
the Court’s
Johnson. To
2151. The district
point,
motion,
illustrate the
the Court
relying
“concede[d]”
on the
court denied
if
the district court “had
determined
statement that he was beaten
plaintiffs
plaintiff]
beating
clearly
[the
the officers’ ad
officers and
.violated
unidentified
law,
could have
[the officers]
established
during the
were present
missions
review of
Id.
sought
that determination.”
evidencé
that this
arrest.
held
S.Ct. 2151.
about
genuine
dispute
factual
raised
partici
particular
these
whether
officers
part
The lesson
this
the Court’s
beating.
Id.
pated
quali
opinion
Johnson is
a “mixed”
fied-immunity
immediately
order
re
only
ruling
Note that
dealt
viewable,
If
part.
at least in
the district
fact, not the
question of historical
disputed
summary-judgment
court holds that
about
legal question whether the evidence
record,
favor,
plaintiffs
viewed
surrounding
beat
circumstances
shows a violation
established
ing assuming
participated—
the officers
—
*14
is,
a
permit
law—that
reasonable
would
permit
jury
a
that
would
reasonable
find
for
jury
plaintiff
to find
the
on his constitu
thus
officers used excessive force and
the
may
tional
the defendant
take
claim—then
plaintiffs
the
Amendment
violated
Fourth
an immediate
to obtain review of
right to be free
unreasonable seizure.
determination
the order also
even
that
if
precisely
it
the
And was
because
district
genuine
dispute.
identifies a
factual
dispute
its ruling solely
court rested
on á
Supreme
about the historical
that the
important
facts
this
Plumhoff bring
Scott
immediately
the
Johnson,
Court said
order was not
sharper
point into
focus. As
the order contained
final
appealable;
alleged
plaintiffs
the
Scott and Plumhoff
qualified immu
legal determination about
police
that
in vio
the
used excessive-force
nity
appellate
for the
court to review. Id.
lation of the
Amendment. Each
Fourth
313-14, 115
at
S.Ct. 2151.
high-speed
a
case involved
vehicular chase.
plaintiffs
In
an officer rammed the
Scott
lan
now to
“insofar
Return
the
as”
fleeing
during
pursuit,
car
the
and the
appears
which
Court’s hold
guage,
the
question ultimately
excessive-force
turned
very
ing at the
end of
Id. at
opinion.
the
officer could
whether
reasonable
have
319-20, 115
this
S.Ct. 2151. Just before
plaintiffs
an
flight posed
that the
believed
that
closing passage,
explained
the Court
public
actual
threat to
safe
and imminent
rulings
some qualified-immunity
will
degree
the
ty, justifying
use of
aspects,
reviewable and unreviewable
both
380-84,
375,
force.
127 S.Ct.
U.S. at
acknowledged
might
sometimes
,
officer
for
1769. The
moved
or
separate
appealed
“to
be difficult
judgment
immunity,
but
based
(that
giv
reviewable determination
der’s
motion,
the
hold
denied
clearly
of facts
en
violates
established
set
required
genuine
of fact
issues
law) from its unreviewable determination
jury.
to a
Id. at
submission
case
(that
‘genuine’).”
an issue
fact is
Id.
The flight posed grave [the Court driver’s] reversed. The Court risk, here, Scott, first appellate ju- public safety addressed the matter of as risdiction, noting police that the order at reasonably using deadly issue acted Johnson entirely on a question rested force to Id. end risk.” at 2022. clear, deny qualified immu judges for district it’s a
As Scott and Phmhofftaake legal grounds. factual and categorical nity both as a read Johnson mistake to if much Immunity from suit mean wouldn’t qualified-im- of a appellate review bar categorically un- mixed orders were these district court munity order whenever the Indeed, the Court acknowl reviewable. or sufficiency” ruling makes an “evidence many qualified-im edged in Johnson If dispute. are in that facts concludes variety. of this munity appeals are mixed right way to John- understand were 318-19, district-court, 515 U.S. at son, orders in Scott then the and the unreviewable were and. Plumhoff the merits
Court reached would The of those cases. is one mixed This theAs question. qualified-immunity facts that the dispute historical parties two in Plum- some detail explained Court material are judge concluded l appeal immediate blocks hoff, (1) Johnson liability: potentia the defendants’ only court’s when the district order met with the two whether Dr. Johnson d questions of historical pure limited initial them his detectives an showed words, the sole dis- fact—in' other when sketch of the killer’s dentition before pute is whether and how certain events neighborhood canvassed detectives not block (2) does Stinson; actions occurred. Johnson whether Dr. interviewed when the issue is wheth- appeal immediate Attorney or Assistant District evidence, jury, if er the credited Dr. for a Daniel Blinka contacted Rawson a violation established judge’s deny shows If the order opinion. second is, all, the right. That constitutional to the ing summary judgment limited question. qualified-immunity disputes, core key these factual identification of review, legal issue we would have way to think about the Johnson Another have to apply, we’d would ap- jurisdictional is this: The bar principle appellate appeal lack dismiss the appeal if are plies the issues raised jurisdiction. what, where, when, “who, limited to order, bar case. The Johnson is not limited judge’s and how” But the if disputes. asks apply identifying whether these material-factual does summary-judgment if ver judge also ruled *16 in plaintiffs namely, the favor— if record —construed these is sion of events credited — jury a to find that permit meeting reasonable occurred and Dr. preinterview would the committed, con- ADA the the claimed than Blinka called defendant rather constitutional violation and the reasonable could stitutional Dr. Rawson—then a right question clearly find, in was established at facts the rest of on these and based ’ (construed the time evidentiary the defendant acted. the Stin- favor), conspired that the defendants son’s understood, then, Johnson’s Properly right process by to due violate really is exception to the Mitchell rule odontology opin delivering up fabricated- sense in this quite narrow. That makes falsehoods, covering up the two ions and immunity protects public Qualified context. constitutional violations. established litigation burdens and officers from the suit, trial; aspect judge’s the sum- just This latter immunity it is Mitchell, mary-judgment is a final no-immuni- liability. order protection against qualified- ruling; fully the 526-27, ty resolved parties 2806. at against immunity question disagree the.defendants. § often about litigation to imme- legal subject issue and is facts, not uncommon and it’s That’s key historical (that is, Mitchell under notwithstand- central diáte review incisor right his front presence tooth); (3) dis- the material Dr. expert opinion factual Johnson’s putes. aspect judge’s If the decision that Stinson’s dentition matched the bite trial, is after then the unreviewable until body marks on the victim’s fell far below lost; any completely is mistake the professional standards of forensic legal judge’s goes wholly (this in the conclusion odontology time was not a call, uncorrected. according expert); close to Stinson’s (4) Johnson, Blinka, Dr. not ADA called Regrettably, misreading Dr. to arrange a opinion; Rawson second Scott, Plumhoff, my colleagues and (5) opinion Rawson’s and Dr. was likewise right stripped defendants of their seriously substandard.2 meaningful judge’s review of adverse is qualified-immunity ruling. ruling That Accepting these facts as true establishes Appellate is unreviewable. only that Drs. Johnson were Rawson and secure, and we should reverse. grossly negligent declaring that Stin- Giving Stinson-friendly son’s matched dentition bite marks the. doubt, accept body. benefit must In words, we victim’s other deciding as following purposes opinions unreasonable, true for .objectively protected by egregiously whether defendants are an so. But error foren- (1) qualified immunity:1 analysis Dr. Johnson met sic a grossly unprofessional —even with the detectives can- due-process their field error —is not a before Fa- violation. vas and them his preliminary showed bricating evidence convict an innocent dentition, violation, person sketch killer’s which due-process de- a clear is picted missing upper right lateral incisor a due-process allegation claim based on an (the just to tooth of the two front that expert opinion his re- fabricated (2) teeth); changed quires Dr. his mind evidence from reasonable which..a missing jury tooth opinion about which the killer was infer both could that .the and that detectives knew it wrong expert interviewed his right wrong that missing gave saw he was at the time he In it. other points opinion, majority meeting, several in the following At their second Stinson,’ colleagues say judge my namely "con- interview of district Jackelen’s Gauger implied events oc- cluded” certain historical desired result in the opinions.”). wrong curred "determined” certain facts This as mat- phrasing See, ("The e.g., summary-judgment methodology Majority p. ter of Op. exist. basic misleading. potentially judges are viewing District the sub- concluded empowered to make "conclusions” evidence in favorable to mitted most Stinson, judg- place, meeting “determinations” fact at such a did take fair, originates in ment. To be the error during meeting pre-interview John- it, repeat We decision below. should son a sketch of the showed the detectives *17 reflecting missing dentition assailant’s tooth incisor.”); p. of the central id. at expert to may qualified be Stinson’s to offer an ("The that,' view- opinion district court concluded deep about flaws in the odontolo- evidence work, in the most to gists’ “opine[ qualified favorable he ] to Stinson, Johnson made the first contact with manipu- knowingly and Rawson Rawson.”); (“The p. id. at district court mark lated the bite and evidence Stinson’s taking determined that in Stinson’s facts appear make them dentition to to match.” favor, ‘Gauger cognizant added). Op. p. Majority (emphasis Johnson’s missing’ shifting Nothing expert’s view of which and supports tooth was fully opine of his con- ability ‘was aware’ the ‘contents or know about their state implied mind. versations Johnson and what im- qualified odontologists are entitled expert words, evidence that the requires it munity. badly but that he mistaken just some cir- least needed lied. Stinson So Gauger is en- against claim related support an infer- evidence cumstantial claims that tirely Stinson derivative. knew and Rawson that Drs. Johnson ence par- the fabrication detective solicited implicated killer and not the that he was no reason- in a Because ticipated cover-up. anyway. him odontologists jury find that able could Gauger too is opinions, fabricated their only shows The evidence He has none. immunity. entitled to gross- Rawson were that Drs. Johnson opinions and an had ly negligent respectfully I dissent. agreement an to reach
opportunity deeply A
Gauger to frame Stinson. flawed oppor- opinion plus evidence
forensic enough. is not plot conspiracy
tunity to no was said has evidence what meeting Dr. between preinterview
in the He has the detectives.
Johnson and phone call was said what evidence DEVELOPMENT, WINE & CANVAS (as- Johnson and Rawson between Drs. Scott, LLC, Anthony Tamara occurred). has no evidence suming it He McCracken, McCracken, and Donald part on the Drs. any motive Plaintiffs-Appellants, Why falsely implicate Stinson. Rawson experts want forensic would credentialed MUYLLE, Christopher Theodore Weis only guess. A It’s
to frame him? could ser, Art Un YN LLC Canvas d/b/a conspiracy that a speculation sheer LLC, Uncorked, corked, Art con- was hatched these frame Stinson Group, LLC, Management Weisser experts implement- and that versations Defendants-Appellees. prosecutor, the John by lying to the ed jury at trial. judge, judge Doe 15-3658 15-2088 Nos. support theory. this exists to No evidence of Appeals, United States Court way: it this Would the Think of Circuit. Seventh probable cause in this record establish Argued November to arrest these defendants a warrant pro- in the John Doe committing perjury August Decided badly Clearly not. A ceeding or at trial? oppor- opinion plus a mere
botched support frame-up does not plot
tunity charge.
probable perjury cause for be needed.
Something more would record, when construed even
On favor, jury could no reasonable vio- and Rawson
And that Drs. Johnson by fa- process right to due
lated Stinson’s sup- opinions and
bricating
pressing fabrication.