William N. GERHARTZ, Plaintiff-Appellant, v. David RICHERT and Bill Tyson, Defendants-Appellees.
Nos. 13-3079, 14-1041.
United States Court of Appeals, Seventh Circuit.
Argued Oct. 1, 2014. Decided March 5, 2015.
779 F.3d 682
Michele M. Ford, Attorney, Crivello Carlson, S.C., Milwaukee, WI, for Defendants-Appellees.
Before WOOD, Chief Judge, and RIPPLE and TINDER, Circuit Judges.
RIPPLE, Circuit Judge.
William Gerhartz brought this action under
I
BACKGROUND
A.
On the night of February 16, 2006, Mr. Gerhartz was driving south on a rural highway toward Stockbridge, Wisconsin, when he lost control of his vehicle and struck an oncoming car. Four officers from the Calumet County Sheriff‘s Department were dispatched to the scene. Deputy Richert was the first to arrive. He spoke to Paramedic Kent J. Katalinick who had been treating Mr. Gerhartz. Katalinick advised the Deputy that he believed Mr. Gerhartz had been drinking alcohol.
Sergeant Tyson was the last officer to arrive at the scene. After making contact with his fellow officers, he instructed Deputy Richert to follow Mr. Gerhartz to the hospital and to continue his investigation there; Deputy Richert did so. After Mr. Gerhartz‘s ambulance left, Sergeant Tyson spoke to Aimee Zeinert, a member of the first responder team and, coincidentally, a bartender for a nearby Stockbridge bar. Zeinert informed Sergeant Tyson that, earlier that evening, she had served Mr. Gerhartz “three or possibly four glasses of Bud Light beer.”1 Zeinert also stated that Mr. Gerhartz told her that he had smoked “too much pot tonight.”2 Sergeant Tyson relayed this information to Deputy Richert, who was still en route to the
Upon arriving at the hospital, another sheriff‘s deputy told Deputy Richert that Paramedic Katalinick again had reported smelling alcohol on Mr. Gerhartz. Based on this information, Deputy Richert ordered, without a warrant, an evidentiary blood draw on Mr. Gerhartz pursuant to Wisconsin‘s implied consent law.3 A laboratory technician conducted the blood draw at 11:33 p.m., a little over two hours after the accident. Mr. Gerhartz was unconscious at the time. Test results later showed that his blood-alcohol content was .243g/100ml.4
As a result of the accident, Mr. Gerhartz was later charged and convicted in a Wisconsin court on one count of injury by intoxicated use of a motor vehicle and one count of operating a motor vehicle under the influence.
B.
Mr. Gerhartz brought this action pro se under
The district court granted the officers’ motion for summary judgment. It first dismissed Mr. Gerhartz‘s Fourteenth Amendment claim, concluding that his allegations were most appropriately analyzed under the more specific Fourth Amendment. Under that provision, the court determined that the natural dissipation of alcohol from Mr. Gerhartz‘s bloodstream was an exigent circumstance sufficient to justify the officers’ warrantless blood draw. The court did not address the second prong of the officers’ qualified immunity defense.5
Notably, the district court‘s grant of summary judgment came approximately four months after the Supreme Court‘s decision in Missouri v. McNeely, 569 U.S. 141, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), which held that the natural dissipation of alcohol from a person‘s bloodstream, without more, does not constitute
Mr. Gerhartz subsequently filed a Rule 59(e) motion, asking the district court to alter and amend its judgment in light of McNeely. In particular, he submitted that, under McNeely, the district court erred in finding that exigent circumstances were present to justify a warrantless search. After initially noting that “Rule 59(e) motions are generally not vehicles to introduce new evidence or advance arguments that could or should have been presented to the district court prior to judgment,” the court ultimately concluded that, despite McNeely, exigent circumstances did, in fact, exist because “Officer Richert might reasonably have believed that he was confronted with an emergency situation in which the delay necessary to obtain a warrant threatened the destruction of evidence.”6 Accordingly, the court denied Mr. Gerhartz‘s request to alter or amend the judgment.
Mr. Gerhartz, now assisted by counsel, appeals both the district court‘s grant of summary judgment as well as its denial of his Rule 59(e) motion as to his Fourth Amendment claim.
II
DISCUSSION
We review a district court‘s grant of summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party. Powers v. USF Holland, Inc., 667 F.3d 815, 819 (7th Cir. 2011). Summary judgment is appropriate where there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
A.
As a threshold argument, the defendants submit that Mr. Gerhartz has waived the issue of whether exigent circumstances justified the blood draw. We do not consider it appropriate to rest our decision on the ground of waiver. As the matter comes to us, Mr. Gerhartz had filed a complaint in the district court in which he maintained that the defendants had procured a blood sample without probable cause. In moving for summary judgment, the defendants not only maintained that there was probable cause but that they were excused from having to demonstrate that probable cause before a judicial officer because of exigent circumstances. In particular, the defendants asserted that “exigent circumstances existed because of the nature of the dissipation of alcohol from a person‘s bloodstream.”7 Mr. Gerhartz, proceeding pro se, did not address this argument in his response, instead asserting that the defendants lacked probable cause.
Mr. Gerhartz‘s failure to respond to the defendants’ exigency argument amounted to, at most, an admission to the facts on which the defendants’ claim of exigent circumstances was based. See Flynn v. Sandahl, 58 F.3d 283, 288 (7th Cir. 1995). “[I]t [did] not constitute a waiver by [Mr. Gerhartz] of all legal arguments based upon those undisputed facts.” Id. As the mov-
Applying these principles, we do not believe that Mr. Gerhartz waived his right to contest the district court‘s finding of exigent circumstances. Here, the defendants’ summary judgment motion was premised on the same per se exigency theory, rejected by the Supreme Court in McNeely. The district court accepted this theory in awarding summary judgment. As the nonmovant, Mr. Gerhartz was under no obligation to point out the obvious legal error in the defendants’ exigency argument. See Flynn, 58 F.3d at 288; Johnson, 35 F.3d at 1112; Glass v. Dachel, 2 F.3d 733, 739 (7th Cir. 1993); Tobey v. Extel/JWP, Inc., 985 F.2d 330, 332 (7th Cir. 1993); Yorger v. Pittsburgh Corning Corp., 733 F.2d 1215, 1223 (7th Cir. 1984). Thus, to the extent that Mr. Gerhartz challenges the district court‘s award of summary judgment based on the court‘s application of this erroneous legal standard, we do not believe that this challenge was waived.
In any event, the district court‘s decision to address the merits of Mr. Gerhartz‘s exigency argument on a post-verdict motion preserved the issue for appeal. Although an issue presented for the first time in a Rule 59(e) motion generally is not timely raised, “such an issue is subject to appellate review if the district court exercises its discretion to consider the issue on the merits.” Dyson v. District of Columbia, 710 F.3d 415, 419 (D.C. Cir. 2013); accord Int‘l Prod. Specialists, Inc. v. Schwing Am., Inc., 580 F.3d 587, 600 (7th Cir. 2009) (“[A]n issue first presented to the district court in a post-trial brief is properly raised below when the district court exercises its discretion to consider the issue.” (internal quotation marks omitted)); Armstead v. Frank, 383 F.3d 630, 633 (7th Cir. 2004) (recognizing that “[a]n issue presented for the first time in a [Rule 59(e)] motion ... is not preserved for appellate review unless the district court exercises its discretion to excuse the party‘s lack of timeliness and consider[s]
B.
We turn now to the merits of Mr. Gerhartz‘s Fourth Amendment claim. The Supreme Court first addressed the issue of warrantless blood draws in Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). In Schmerber, the Court determined that probable cause alone could justify a blood draw so long as the officer ordering the test “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence.” Id. 770 (internal quotation marks omitted). Such destruction, the Court explained, was a likely consequence of the natural dissipation of alcohol from the blood:
We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner‘s arrest.
Following Schmerber, several courts read the Supreme Court‘s decision as endorsing a per se exigency rule in blood-alcohol cases—that is, that the natural dissipation of alcohol from the blood constitutes a per se exigency. See McNeely, 133 S. Ct. at 1558 n. 2 (collecting cases). Notably, the Supreme Court of Wisconsin was among those that took this view, declaring in State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), that the exigency identified in Schmerber “was caused solely by the fact that the amount of alcohol in a person‘s blood stream diminishes over time.” Id. 402.
The Supreme Court rejected this understanding of Schmerber in McNeely. In McNeely, the Court clarified that, “while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, as it did in Schmerber, it does not do so categorically.” 133 S. Ct. at 1563. Thus, the Court explained, “[w]hether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.” Id.
Mr. Gerhartz contends that the district court awarded summary judgment based on the same per se exigency theory rejected in McNeely and that, under McNeely, summary judgment was improper because there existed a genuine dispute as to whether exigent circumstances were present. In response, Deputy Richert and Sergeant Tyson contend, as they did before the district court, that their decision to order a blood draw on Mr. Gerhartz was lawful and that, in any event, they are entitled to qualified immunity.
“The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted). Accordingly, in order to defeat a properly raised qualified immunity defense, the plaintiff must establish two things: “first, that the facts alleged describe a violation of a protected right; and second, that this right was clearly established at the time of the defendant‘s alleged misconduct.” Mordi v. Zeigler, 770 F.3d 1161, 1164 (7th Cir. 2014). We have the discretion to decide which of these two prongs to address first. See Pearson, 555 U.S. at 236.
Here, because of the undeveloped nature of the factual record, we start (and end) our analysis with the clearly-established prong. During the parties’ briefing of this case, we decided a similar issue. In Seiser v. City of Chicago, 762 F.3d 647 (7th Cir. 2014), we held that, prior to the Supreme Court‘s decision in McNeely, the law was not clearly established on the issue of whether the natural dissipation of alcohol from the bloodstream constitutes a per se exigency. See id. at 658. In arriving at this conclusion, we noted that, prior to McNeely, courts were split over this issue and that many jurisdictions—like Illinois, where the search in Seiser took place—had adopted a per se exigency rule in blood-alcohol cases. See id. at 657-58. Given these circumstances, the court determined that a reasonable officer in the defendant‘s position “would have believed ... that so long as there was probable cause to justify a breathalyzer examination, there was no need to consider seeking a warrant first.” Id. at 658.
Seiser was decided sixteen days before Mr. Gerhartz filed his reply brief. In that brief, Mr. Gerhartz attempts to distinguish Seiser by arguing that its holding was limited to breathalyzer tests. In particular, he submits that since a blood draw is more intrusive than a breathalyzer test a reasonable officer would not have believed that probable cause alone was sufficient to justify a warrantless blood draw.
Although the intrusiveness of a search is certainly relevant to its reasonableness under the Fourth Amendment, Mr. Gerhartz has not identified any clearly established authority that would have put the defendants on notice that their decision to order a warrantless blood draw (as opposed to a breathalyzer test) was unlawful. Nor could he. At the time McNeely was decided, the law regarding exigent circumstances in blood-alcohol cases was just as unclear with regard to blood draws as breathalyzer tests. Indeed, both McNeely and Schmerber concerned warrantless blood draws rather than breathalyzer tests. See McNeely, 133 S. Ct. at 1557; Schmerber, 384 U.S. at 758. Our reasoning in Seiser drew no distinction between the two. See 762 F.3d at 656-59. Accordingly, we cannot distinguish Seiser on these grounds.
Conclusion
Having decided that Deputy Richert and Sergeant Tyson‘s conduct did not contravene any clearly established law, we need not decide whether their actions in fact violated Mr. Gerhartz‘s Fourth Amendment rights. Because the defendants are entitled to qualified immunity, the judgment of the district court is affirmed.