ARLINTHIA WHITE, Individually and as Personal Representative of the Estate of Derrick Ford, Deceased, Plaintiff-Appellee, v. MARK GERARDOT, in his Individual Capacity, Defendant-Appellant.
No. 07-1418
United States Court of Appeals For the Seventh Circuit
Argued September 27, 2007—Decided December 5, 2007
Before BAUER, RIPPLE and KANNE, Circuit Judges.
Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 05 C 382—Roger B. Cosbey, Magistrate Judge.
United States Court of Appeals
For the Seventh Circuit
RIPPLE, Circuit Judge. Arlinthia White, individually and as personal representative of the Estate of Derrick Ford, filed this action under
I
BACKGROUND
A.
On the night of January 10, 2004, Derrick Ford and his friends, Dana L. Jones, Sr., Kevin D. Tinsley, Javon Thomas and Patrick C. Myers, were standing outside the Veterans of Foreign Wars (“VFW”) located on Winter Street in Fort Wayne, Indiana. Ford and his companions were wearing similar dark jackets. Jones, Tinsley and Thomas state that, around 2:30 a.m., they heard gunshots from the west side of Winter Street, where a group of people were gathered. Two individuals, unrelated to Ford and his friends, had been involved in a verbal altercation and one had shot the other. Upon hearing the gunshots, Ford, Jones, Tinsley and Thomas decided to leave the VFW. The four men headed toward the green Ford Taurus that Jones had driven to the VFW. Jones and Tinsley state that Detective Gerardot ran past the group of people gathered on Winter Street and instead followed the men as they
As he was unlocking the driver’s side door of his car, Jones heard someone command, “Freeze!” Two other affiants also heard “freeze.” Jones observed that Ford, whose right hand had been on the front passenger door handle, let go of the handle and turned around with his hands in the air. Jones’ affidavit further states that, as Ford was turning with his hands in the air,3 Detective Gerardot shot him. Ford dropped to his knees; Detective Gerardot shot Ford several more times. No gun was recovered from Ford. Myers states that the people who had been watching these events walked away after the shooting.
Detective Gerardot presents a different version of the events. He wаs dispatched to the VFW because of a re
Detective Gerardot states that he drove his car toward the VFW, where he saw a crowd of about one hundred people gathered. A fight broke out, Detective Gerardot states, and people were pushed around. He heard yelling and then observed a black male, wearing dark clothes with а hood, holding a semi-automatic handgun with his right hand above his head.4 Detective Gerardot states that the individual (the “shooter”) fired shots into the crowd and again continued to hold the weapon above his head.
Detective Gerardot exited his car; he claims that people in the crowd were trapped. The shooter again fired shots into the crowd. Detective Gerardot states that he yelled, “Police, everybody get down.” He then started chasing the shooter, who fled. Detective Gerardot states that, as he ran by the crowd, he heard more gun shots coming from the west side of Winter Street. He also heard some
According to Detective Gerardot, Ford was facing the passenger side of the car; Detective Gerardot was behind him at an angle; Jones was at the driver’s side door facing both Ford and Detective Gerardot. Detective Gerardot claims that he believed that Ford had a gun in front of his body. Detective Gerardot states that he yelled “police” several times and ordered the two men to “show me your hands.” Jones put his hands above his head and said, “I don’t have a gun.” Detective Gerardot states that Ford was slightly hunched over and that his hands were conсealed. He saw Ford’s elbows moving and claims that he thought that Ford was reloading his gun or fixing a jam. Detective Gerardot states that Ford looked back at him over his left shoulder, made eye contact and appeared to check Detective Gerardot’s position. Then, Detective Gerardot claims that he saw Ford start turning toward him with his hands near his mid-section. Detective Gerardot asserts that he saw something in Ford’s hands. He then shot Ford. Detective Gerardot recounts that a group of people rushed toward Ford, laying on him and pulling on his hands, arms and coat.
B.
Detective Gerardot moved for summary judgment on two grounds. He submitted that he did not use excessive force when he shot Ford because Ford’s behavior prior to the shooting would have caused a reasonable officer to believe that Ford presented an imminent danger of death or serious bodily harm to Detective Gerardot or others. For
On the issue of excessive force, the district court determined that Ms. White had carried her burden of proving that there were genuine issues of material fact for trial. “White’s evidence indicates that, contrary to Gerardot’s allegations, Ford did nоt disobey Gerardot’s commands and did not have a gun in his hands when Gerardot shot him. Instead, upon hearing Gerardot’s command to ‘freeze,’ Ford turned to face Gerardot with his hands in the air, at which time Gerardot shot Ford.” R.69 at 13. The court thus determined that a reasonable jury could conclude that Detective Gerardot’s actions were not objectively reasonable and, accordingly, that he had violated Ford’s Fourth and Fourteenth Amendment rights by using excessive forcе.
On the issue of qualified immunity, the district court ruled that summary judgment could not be granted on the first prong of the qualified immunity test because, accepting Ms. White’s factual allegations as true, Detective Gerardot had violated Ford’s Fourth and Fourteenth Amendment rights by using excessive force. On the second prong, the district court determined that “factual disputes between the parties preclude a finding that Gerardot is entitled to immunity as a matter of law.” Id. at 16. The cоurt explained that, “accepting White’s facts as true, it is obvious that no reasonable officer would believe that it is lawful to shoot an unarmed suspect who is surrendering to the police with his hands in the air.” Id.
DISCUSSION
Our discussion begins with jurisdiction. A district court’s denial of summary judgment typically is an “unappealable interlocutory order.” Matterhorn, Inc. v. NCR Corp., 727 F.2d 629, 633 (7th Cir. 1984); see also Whitford v. Boglino, 63 F.3d 527, 531 (7th Cir. 1995). An exception to this general rule exists for a district court’s denial of qualified immunity on summary judgment. See Mitchell, 472 U.S. at 530. See generally Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47 (1949) (setting forth the test for determining which orders are аppealable “final” orders).
It is well established, of course, that a denial of qualified immunity is only appealable “to the extent that it turns on an issue of law.” Mitchell, 472 U.S. at 530. The Supreme Court of the United States has held that a defendant who is “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.” Johnson v. Jones, 515 U.S. 304, 319-20 (1995). In reviewing a dеnial of qualified immunity, this court neither may “make conclusions about which facts the parties ultimately might be able to establish at trial” nor may “reconsider the district court’s determination that certain genuine issues of fact exist.” Leaf v. Shelnutt, 400 F.3d 1070, 1078 (7th Cir. 2005). Our review is confined to “abstract issues of law,” Johnson, 515 U.S. at 317, those issues which do not “depend on the outcome of a disputed factual question,” Leaf, 400 F.3d at 1078. In sum, this court’s “jurisdiction extends to interlocutory appeals . . . challenging a district court’s determination that a set of facts demonstrate
Given these principles, the boundaries of our jurisdiction are clear in the typical qualified immunity appeal. We have jurisdiction when the party seeking to invoke it makes a purely legal argument that does not depend on disputed facts. See, e.g., Knox v. Smith, 342 F.3d 651, 657 (7th Cir. 2003). Several sources of undisputed facts may frame our review of this purely legal question. We may “take, as given, the facts that the district court assumed when it denied summary judgment.” Washington v. Haupert, 481 F.3d 543, 549 n.2 (7th Cir. 2007) (quoting Johnson, 515 U.S. at 317); McKinney v. Duplain, 463 F.3d 679, 688 (7th Cir. 2006); Leaf, 400 F.3d at 1078-79. We also may conduct our review by “accepting the plaintiff’s version of the facts.”5
In Washington, we were presented with a situation in which the plaintiff presentеd an account of “ ‘undisputed facts,’ which differ[ed] from that relied on by the district court.” Washington, 481 F.3d at 549. The district court had not considered two photographs that the plaintiff alleged were relevant to the qualified immunity issue. We held that this court “is not required to accept the facts as described by the district court, although in most instances it is appropriate to do so.” Id. at 549 n.2. We further held that “where the appellants are not asking the court to resolve faсtual disputes or determine whether the evidence is sufficient, it is appropriate for this court to look beyond the factual account of the district court to all undisputed evidence.” Id.
In this case, Detective Gerardot, relying on our holding in Washington, explicitly states that in seeking appellate review he is not asking us to resolve factual disputes; rather, he states that he is asking us to consider all of the undisputed evidence in the record. This case is different from Washington, however, because the faсts that Detective Gerardot claims are undisputed are disputed. Indeed, Detective Gerardot simply has taken his version of the facts and labeled them “undisputed.” Similarly, throughout many of his legal arguments, Detective Gerardot refers to the “undisputed” facts, but again these merely are his version of disputed facts.
Dеtective Gerardot claims that he is entitled to qualified immunity because his use of deadly force did not violate Ford’s constitutional rights and, in any event, those rights were not clearly established at the time of the
Both the adjudicative facts offered by the Detective and his characterization of those facts are in conflict with the account offered by Ms. White. As the district court recognized, “[Ms.] White’s evidence indicates that, contrary to Gerardot’s allegations, Ford did not disobey Gerardot’s commands and did not have a gun in his hands when Gerardot shot him. Instead, upon hearing Gerardot’s command to ‘freeze,’ Ford turned to face Gerardot with his hands in the air, at which time Gerardot shot Ford.” R.69 at 13. Ms. White also disputes the reasonablenеss of Detective Gerardot’s belief that Ford was the individual who shot a gun into the crowd, given that it was dark, that
Our decisions, as well as those of our sister circuits, demonstrate that we do not have jurisdiction when, as here, all of the arguments made by the party seeking to invoke our jurisdiction are dependent upon, and inseparable from, disputed facts. McKenna v. City of Royal Oak, 469 F.3d 559, 562 (6th Cir. 2006); Sallenger v. Oakes, 473 F.3d 731, 738 (7th Cir. 2006); cf. McKinney, 463 F.3d at 688; Via, 469 F.3d at 623 n.2.
Our colleagues on the Court of Appeals for the Sixth Circuit reached the same conclusion in a remarkably similar case. In McKenna, the plaintiff brought suit against several police officers claiming that the officers had usеd excessive force against him. The district court determined that genuine issues of material fact precluded summary judgment on the ground of qualified immunity. In the ensuing appeal, the police officers asserted that they were raising “only the legal issue of whether the facts set forth by [McKenna] constituted a violation of clearly established law.” McKenna, 469 F.3d at 561. Notwithstanding this assertion, the Sixth Circuit explained that, just as is the case here, “all three arguments advanced by the officers on the issue of qualified immunity in fact rely on their own disputed version of the facts, not the facts as alleged by McKenna.” Id. (emphasis supplied). The court deter
It may be that purely legal arguments for granting qualified immunity relying on the facts taken in the light most favorable to McKenna could have been advanced in this case. However, because genuine issues of material fact regarding the officers’ qualified immunity claim do exist, and because the officers have in fact made no arguments concerning the denial of qualified immunity that do not rely on disputed facts this court does not have jurisdiction over this part of their appeal.
Id. at 562; cf. Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 252 (5th Cir. 2005) (noting that jurisdiction does not exist where the “appellant [does] not raise sufficient legal issues separable from the facts or the ultimate merits of the case”).
Our decision in Sallenger is consistent with this сonclusion. In that case, we noted that “[t]oward the end of their opening brief, the defendants question a number of facts [assumed] by the district court.” Sallenger, 473 F.3d at 738. Several considerations undergirded our holding that jurisdiction existed to reach the merits in Sallenger. We emphasized that the appellants had stated explicitly, both in their brief and at oral argument, that they were not asking the court to revisit facts found by the district court and that we could address their arguments without revisiting those facts. Id. Additionally, the appellants in Sallenger raised legal issues that were separate from their impermissible questioning of the disputed facts (which only occurred toward the end of their opening
Sallenger and McKenna thus counsel that, where the appellant’s arguments rely on disputed facts, this court has jurisdiction only if the legal arguments for qualified immunity do not depend on, or are separable from, disputed facts. Of course, this does not mean that the mere mention of disputed facts in an otherwise purely legal argument extinguishes our jurisdiction. See, e.g., Sallenger, 473 F.3d at 738-39 (concluding that there was jurisdiction because there were purely legаl issues to resolve despite the mention of some disputed facts); Atteberry, 430 F.3d at 252 (noting that “[u]navoidable references to the underlying facts of a case do not spoil our jurisdiction over a properly composed interlocutory appeal”). Rather, the key inquiry is whether the appellant’s arguments necessarily depend upon disputed facts. If an argument is not dependent upon disputed facts, the court simply can disregard mention of the disputed facts and address the abstract issue of law without running afoul of Johnson.
Here, Detective Gerardot’s only argument on appeal is that a reasonable officer in his shoes would not have known that using deadly force against Ford was unconstitutional because he believed that Ford had just fired shots into a large crowd, that Ford was concealing a weapon in front of his body and that Ford was going to
Conclusion
The district court denied Detective Gerardot’s motion for summary judgment because there were genuine issues of material fact as to whether Ford was a threat to Detective
APPEAL DISMISSED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of Appeals for the Seventh Circuit
USCA-02-C-0072—12-5-07