Joseph Ferguson v. Ryan McDonough ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-2741
JOSEPH S. FERGUSON,
Plaintiff-Appellee,
v.
RYAN MCDONOUGH,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:19-cv-00055-NJ — Nancy Joseph, Magistrate Judge.
____________________
ARGUED APRIL 14, 2021 — DECIDED SEPTEMBER 8, 2021
____________________
Before MANION, ST. EVE, and KIRSCH, Circuit Judges.
KIRSCH, Circuit Judge. Our jurisdiction over this interlocu-
tory appeal turns on a police dashcam video that captured po-
lice officer Ryan McDonough’s arrest of Joseph Ferguson, in-
cluding the moment he tased Ferguson. Ferguson sued Of-
ficer McDonough under 42 U.S.C. § 1983, alleging that Officer
McDonough violated his Fourth Amendment rights by using
excessive force to effectuate his arrest. Following discovery,
the parties cross-moved for summary judgment, both
2 No. 20-2741
asserting that the dashcam video supported granting sum-
mary judgment in their favor. The district court disagreed
that the video resolved the parties’ factual disputes and de-
nied both motions.
This appeal concerns only the denial of Officer
McDonough’s motion, which asserted that he was entitled to
summary judgment because qualified immunity shielded
him from civil liability for any damages Ferguson sustained
from the arrest. The district court concluded that when the
facts were viewed in a light most favorable to Ferguson, one
reasonable interpretation of the dashcam video was that Fer-
guson was not actively resisting arrest when Officer
McDonough tased him. It further concluded that a reasonable
officer would have known by the time of Ferguson’s tasing
that an officer’s escalation of force in response to an individ-
ual not actively resisting violated the Fourth Amendment’s
proscription against excessive force. Because one view of the
evidence supported that Ferguson was not actively resisting
when Officer McDonough tased him, a jury could reasonably
find that Officer McDonough’s use of the taser was unreason-
ably excessive under the circumstances. Accordingly, the dis-
trict court held that Officer McDonough was not entitled to
summary judgment on his qualified immunity defense.
On appeal Officer McDonough argues that the dashcam
video contradicts the district court’s finding that the video is
open to interpretation because the video clearly shows that
Ferguson was actively resisting arrest moments before Officer
McDonough tased him, and that Ferguson continued to argue
with Officer McDonough while raising his hands. Under
these circumstances, Officer McDonough contends that his
No. 20-2741 3
deployment of the taser was objectively reasonable, and
hence, he is entitled to qualified immunity.
We have jurisdiction to review the merits of Officer
McDonough’s appeal only if the dashcam video utterly dis-
credits the district court’s finding that there was a factual dis-
pute over whether Ferguson was actively resisting when Of-
ficer McDonough tased him. It does not, so we must dismiss
his appeal for lack of appellate jurisdiction.
I
Our recount of the facts largely tracks the district court’s
account at summary judgment. Ryan McDonough is a police
officer with the Kenosha Police Department. On July 9, 2018,
he and fellow officer Kyle Kinzer were dispatched to an apart-
ment building located at 6100 24th Avenue in Kenosha, Wis-
consin, in response to a 911 report of disorderly conduct. The
911 call was placed by the building’s manager who reported
that there was a woman inside the building in Joseph Fergu-
son’s apartment who was “causing problems” and did not
live there.
Ferguson was not present when the two officers arrived at
the building. Upon arrival, Officer Kinzer spoke with the
building manager who stated that he did not witness any
fighting between Ferguson and the woman, Cloey Rupp-
Kent. Meanwhile Officer McDonough spoke with Rupp-Kent
who was, at that time, alone inside Ferguson’s apartment.
Rupp-Kent told Officer McDonough that she and Ferguson
had been fighting earlier in the day. Ferguson had left the
apartment for a few hours but then reportedly came back bel-
ligerent. Upon returning, Ferguson allegedly kicked an air
conditioning unit out of a window, knocked a phone out of
4 No. 20-2741
Rupp-Kent’s hands, punched her in the face, laid on top of her
on the bed, pointed a knife at her chest, and threatened to stab
her. While in the apartment, Officer McDonough observed
bruises on Rupp-Kent’s leg and neck, and redness on her face.
He also observed the knife Ferguson purportedly pointed at
her and collected it into evidence.
After speaking with Rupp-Kent, Officer McDonough went
outside to his squad car to complete paperwork on the inci-
dent. There, he learned that Ferguson was on probation for
robbery, had his driving privileges revoked, and drove a
Chrysler. He also reviewed Ferguson’s booking photo.
While Officer McDonough was completing the paper-
work, he saw Ferguson drive past him in a Chrysler. Officer
McDonough followed Ferguson’s car without his squad car
lights activated. Ferguson then turned two corners, pulled
over, and parked his car in front of what Ferguson later indi-
cated was his mother’s house (which Officer McDonough did
not know at the time). As Ferguson exited his car, Officer
McDonough activated his squad car lights and repeatedly
yelled at him to stay in the car.
The parties have different accounts of what happened
next. For his part, Ferguson contends that he got out of his car
to ask Officer McDonough why he was being pulled over, to
which Officer McDonough merely responded, “you’re under
arrest.” Ferguson asserts that Officer McDonough then ag-
gressively approached him, shoved him, and gave him two
contradictory commands: to place his hands on top of his car
and also behind his back. Ferguson states that since he could
not simultaneously do both, he placed “one hand on top of
the car and one behind [his] back.” Although it is undisputed
that a tussle ensued next as Officer McDonough went to
No. 20-2741 5
handcuff Ferguson, Ferguson says the tussle occurred be-
cause Officer McDonough was “pushing him around” and
was so rough with him that he pulled off all his clothes. The
parties do not dispute that the tussle between them ended
with Officer McDonough deploying a taser at Ferguson. Fer-
guson however claims that the taser was unnecessary because
he was not resisting arrest and had surrendered with both
hands in the air when Officer McDonough tased him.
Officer McDonough disagrees and claims Ferguson was
actively resisting arrest. He contends that when he ap-
proached Ferguson after Ferguson got out of his car, he at-
tempted to turn Ferguson toward the car so that he could
handcuff him behind his back, but Ferguson pulled one arm
free. Officer McDonough says he then twice told Ferguson to
stop resisting arrest but Ferguson nevertheless continued to
resist. According to Officer McDonough, the tussle followed
because he attempted to “decentralize” Ferguson by taking
him to the ground which resulted in his clothes coming off,
but Ferguson again resisted and was able to stand up despite
the take-down attempt. Officer McDonough states that he
subsequently deployed his taser for five seconds to get Fergu-
son under control, and that after Ferguson fell to the ground,
backup arrived to help him handcuff Ferguson. Officer
McDonough asserts that he justifiably tased Ferguson be-
cause he was concerned about his safety since he knew that
Ferguson had recently threatened Rupp-Kent with a knife,
and he did not have backup officers to assist him while Fer-
guson was actively resisting arrest.
After the taser incident, Ferguson was charged with sev-
eral crimes. Most of the charges were subsequently dismissed.
On October 10, 2018, Ferguson pled guilty to three charges
6 No. 20-2741
not relevant to this appeal. On January 8, 2019, Ferguson, pro-
ceeding pro se, sued Officer McDonough under § 1983 alleg-
ing that Officer McDonough subjected him to excessive force
by tasing him in violation of his Fourth Amendment rights.
As relevant here, Officer McDonough moved for summary
judgment, asserting the defense of qualified immunity. The
district court denied the motion.
In so doing, the district court concluded that, when con-
struing the facts in the light most favorable to Ferguson, Fer-
guson’s § 1983 claim presented genuine issues of material fact
for a jury to decide. The district court explained that Officer
McDonough and Ferguson had offered competing accounts
of the circumstances surrounding Ferguson’s arrest, and the
dashcam video of the incident did not conclusively support
either party’s account. For example, the district court deter-
mined that one reasonable interpretation of the video, which
was consistent with Ferguson’s version of events, “is that at
the point that [Officer] McDonough tased Ferguson, [Fergu-
son] was standing next to his car with his hands in the air,”
and “[a] reasonable jury could, thus, conclude that the use of
the taser was unnecessary and unreasonable.”
The district court noted, however, that “[a]nother reason-
able interpretation of the video, consistent with [Officer]
McDonough’s version of events, is that although Ferguson
was not physically resisting at the time that McDonough
tased him, Ferguson was struggling moments before
McDonough deployed his taser.” Accordingly, a reasonable
jury could also conclude that Officer McDonough’s use of the
taser was reasonable. Thus, the district court found that a jury
would need to draw inferences from the video and consider
the totality of circumstances to ultimately decide whether it
No. 20-2741 7
was reasonable for an officer in Officer McDonough’s position
to deploy a taser at Ferguson in this instance.
Because the video did not resolve the parties’ dispute and
“one reasonable interpretation of the videotape is that at the
point that [Officer] McDonough tased Ferguson” he was not
resisting arrest and thus “the use of the taser was unnecessary
and unreasonable,” the district court denied Officer
McDonough’s motion for summary judgment based on qual-
ified immunity. The district court explained that a reasonable
officer would have known, at the time of the taser incident on
July 9, 2018, that an officer’s substantial escalation of force in
response to an individual’s passive resistance violated the in-
dividual’s Fourth Amendment rights against excessive force.
See, e.g., Dockery v. Blackburn, 911 F.3d 458, 467 (7th Cir. 2018)
(noting one of this court’s guideposts in excessive force cases
is that “an officer may not use significant force (like a Taser)
against a ‘nonresisting or passively resisting’ subject” (quot-
ing Abbott v. Sangamon Cnty., 705 F.3d 706, 732 (7th Cir. 2013)).
And, the district court continued, our circuit had clearly es-
tablished by the time of the taser incident that it was uncon-
stitutional for an officer to escalate force on a passively resist-
ing individual. See, e.g., Alicea v. Thomas, 815 F.3d 283, 292 (7th
Cir. 2016) (“It [is] clearly established that using a significant
level of force on a non-resisting or a passively resisting indi-
vidual constitutes excessive force.”). The district court there-
fore held that Officer McDonough was not entitled to quali-
fied immunity.
Officer McDonough now appeals the district court’s inter-
locutory order denying him qualified immunity on summary
judgment.
8 No. 20-2741
II
On appeal Officer McDonough asserts that he is entitled
to qualified immunity because (1) he did not commit a consti-
tutional violation because there is no dispute—based on the
dashcam video—that Ferguson was actively resisting, and (2)
he did not violate any clearly established constitutional right
because Ferguson has not cited any analogous case that
would cause an officer to know that it was constitutionally
prohibited for Officer McDonough to tase Ferguson once as a
result of him actively resisting.
Officer McDonough’s argument, of course, directly con-
tradicts the district court’s finding that a genuine issue of fact
exists as to whether Ferguson was actively resisting, given the
district court’s view that the dashcam video is open to inter-
pretation. Since we generally cannot review an interlocutory
order finding that a genuine factual dispute prevents the res-
olution of a defendant’s qualified immunity defense on sum-
mary judgment, we are unable to address the merits of Officer
McDonough’s interlocutory appeal unless we first determine
that we have jurisdiction over it. We hold that we do not.
A
Under 28 U.S.C. § 1291, this court may generally only ex-
ercise jurisdiction over appeals from final decisions of the dis-
trict court. A district court order denying summary judgment
is ordinarily unappealable since it is not a final decision under
§ 1291 but rather an interlocutory ruling. Ortiz v. Jordan, 562
U.S. 180, 188 (2011). The collateral order doctrine provides an
exception, allowing appeals from interlocutory rulings which
“finally determine claims of right separable from, and collat-
eral to, rights asserted in the action, too important to be
No. 20-2741 9
denied review and too independent of the cause itself to re-
quire that appellate consideration be deferred until the whole
case is adjudicated.” Cohen v. Beneficial Indus. Loan Corp., 337
U.S. 541, 546 (1949); see Mitchell v. Forsyth, 472 U.S. 511, 526–
29 (1985). Under the collateral order doctrine, an order deny-
ing qualified immunity on summary judgment typically can
be appealed immediately because it usually “amounts to a fi-
nal decision on the defendant’s right not to stand trial,” and
as such, is a collateral order. Gant v. Hartman, 924 F.3d 445,
448 (7th Cir. 2019); see Ortiz, 562 U.S. at 188 (citing Mitchell,
472 U.S. at 530). But not always.
An interlocutory order denying qualified immunity does
not constitute a final decision on the defendant’s right not to
stand trial when the district court denies summary judgment
on the ground that factual disputes exist which prevent the
resolution of the qualified immunity defense, see Levan v.
George, 604 F.3d 366, 369 (7th Cir. 2010)—just like the district
court did here. The law is clear that such an order is not im-
mediately appealable under the collateral order doctrine. See
Johnson v. Jones, 515 U.S. 304, 319–20 (1995) (an order denying
qualified immunity cannot be appealed “insofar as that order
determines whether or not the pretrial record sets forth a ‘gen-
uine’ issue of fact for trial”); Gutierrez v. Kermon, 722 F.3d 1003,
1009 (7th Cir. 2013) (“[W]e do not have jurisdiction to review
an order denying qualified immunity on summary judgment
if the issue on appeal is whether the record contains sufficient
evidence to create a ‘genuine’ issue of material fact.”). Indeed,
“[i]f the denial of qualified immunity turns on factual rather
than legal questions, the denial is not properly subject to ap-
pellate jurisdiction under the collateral order doctrine be-
cause the decision is not ‘final.’” Levan, 604 F.3d at 369 (quota-
tion omitted).
10 No. 20-2741
The law is also clear that an appellate court reviewing such
an order may not “reconsider the district court’s determina-
tion that certain genuine issues of fact exist,” or “make con-
clusions about which facts the parties ultimately might be
able to establish at trial.” Gant, 924 F.3d at 448 (quoting
McKinney v. Duplain, 463 F.3d 679, 688 (7th Cir. 2006)). To es-
tablish appellate jurisdiction, then, the appellant must raise “a
purely legal argument that does not depend on disputed
facts.” White v. Gerardot, 509 F.3d 829, 833 (7th Cir. 2007); see
Gant, 924 F.3d at 448 (reiterating that an order denying quali-
fied immunity can be appealed only “to the extent that it turns
on an issue of law” (quoting Mitchell, 472 U.S. at 530)). This
means that an appellant who is challenging a district court’s
denial of qualified immunity “must accept the facts and rea-
sonable inferences favorable to the plaintiff or the facts as-
sumed by the district court’s decision.” Gant, 924 F.3d at 449.
Put differently, appellate jurisdiction is improper when the
appellant’s otherwise appealable legal argument is “depend-
ent upon, and inseparable from, disputed facts.” White, 509
F.3d at 835; see Gutierrez, 722 F.3d at 1010 (cautioning that an
appellant “effectively pleads himself out of court by interpos-
ing disputed factual issues in his [legal] argument”).
There is, however, one “narrow, pragmatic exception”
that allows an appellant to challenge the district court’s deter-
mination that genuine issues of fact exist: when a video of the
incident “utterly discredit[s]” the district court’s finding that
a genuine factual dispute prevents the resolution of the de-
fendant’s qualified immunity defense on summary judgment.
Gant, 924 F.3d at 449 (quoting Scott v. Harris, 550 U.S. 372, 380–
81 (2007)). Our jurisdiction in this case therefore depends on
whether the dashcam video utterly discredits the district
court’s finding that one view of the video supports that
No. 20-2741 11
Ferguson was not actively resisting arrest when Officer
McDonough tased him. A few cases instruct our inquiry.
In Scott v. Harris, the plaintiff was a fleeing motorist who
brought a § 1983 suit alleging that a police officer used exces-
sive force against him when the officer stopped him from flee-
ing by ramming his car from behind. 550 U.S. at 374. This con-
duct caused the plaintiff to lose control of his car, which over-
turned and crashed, resulting in serious injuries. Id. at 375.
The district court denied the officer’s motion for summary
judgment based on qualified immunity after determining that
a factual dispute existed over whether the plaintiff was driv-
ing in a way that endangered others. See id. at 378, 380. The
Supreme Court reversed. Id. at 376. It found that the plaintiff’s
version of events, which the district court adopted, was ut-
terly discredited by a video that showed the plaintiff was
“driving erratically during a high-speed chase,” contrary to
testimony that he was “driving carefully.” Gant, 924 F.3d at
449 (discussing Scott, 550 U.S. at 380–84). The Court accord-
ingly had jurisdiction to review the district court’s interlocu-
tory order denying qualified immunity as the video “was ir-
refutable evidence that [the plaintiff] ‘posed an actual and im-
minent threat to the lives’ of others.” Id. (quoting Scott, 550
U.S. at 383–84). “[I]n light of that incontestable fact,” the Court
held that the police officer used reasonable force to stop the
plaintiff “as a matter of pure law,” and thus was entitled to
qualified immunity. Id. (quoting Scott, 550 U.S. at 383–84).
This court in Dockery v. Blackburn similarly reversed the
district court’s interlocutory order denying officers qualified
immunity at summary judgment based on “irrefutable facts”
preserved on a booking-room video recording. 911 F.3d at
461. The plaintiff was arrested after a domestic dispute and
12 No. 20-2741
became confrontational with two officers who were finger-
printing him during the booking process. Id. at 461. In re-
sponse, the officers attempted to handcuff him to a bench;
things escalated from there, and the officers managed to
handcuff the plaintiff after deploying a taser at him four
times. Id. The plaintiff subsequently sued the officers for ex-
cessive force, and the district court denied the officers’ claim
for qualified immunity after construing the facts in the plain-
tiff’s favor. Id. The plaintiff testified that he did not intend to
resist the officers, but on appeal, this court concluded that the
booking video utterly discredited his version of events. Id. at
466. According to the court, the video “plainly showed that
[the plaintiff] was ‘uncooperative and physically aggressive’
toward the officers and ‘wildly kicked’ in their direction as
they attempted to handcuff him.” Gant, 924 F.3d at 449 (quot-
ing Dockery, 911 F.3d at 467). Under these circumstances, the
court determined it had jurisdiction to review the interlocu-
tory denial of qualified immunity. Dockery, 911 F.3d at 467.
And in light of the uncontested fact that the plaintiff was
physically aggressive (as shown by the video), the court held
that the officers used reasonable force in tasing the plaintiff,
entitling them to qualified immunity. Id.
B
We have carefully reviewed Officer McDonough’s dash-
cam video and have determined that this case is not like Scott
and Dockery because the dashcam video of Ferguson’s arrest
does not utterly discredit the district court’s finding that a
genuine issue of fact exists as to whether Ferguson was ac-
tively resisting arrest when Officer McDonough tased him.
Portions of the video are clear, but the rest is open to interpre-
tation, as the district court found. See Gant, 924 F.3d at 449–50
No. 20-2741 13
(explaining that the narrow video exception “applies only in
the rare case” and “does not apply where the video record is
subject to reasonable dispute”).
Here, the video begins with Officer McDonough following
Ferguson in his patrol vehicle, without any lights activated,
after Ferguson coincidentally drives by. After making a few
turns, he pulls up behind Ferguson as Ferguson parks his car
on the side of the road on a residential street. Right as Fergu-
son opens his car door and begins to step out of his car, Officer
McDonough activates his lights and starts shouting at Fergu-
son from inside his patrol car to “stay in the car!” Officer
McDonough repeats his command once Ferguson is com-
pletely out of the car, at which time Ferguson looks in Officer
McDonough’s direction, shuts the car door behind him, and
appears to say something (what Ferguson says is inaudible).
Officer McDonough responds, “Yeah you. Get back in the
car.” Officer McDonough utters these words while approach-
ing Ferguson, who is several steps away; Ferguson mean-
while stands stationary in the street just beside his car’s
driver’s-side door where he had exited. Ferguson is fully
clothed, wearing a hat, a white t-shirt with an unzipped
hoodie over it, and loose-fitting, long pants.
It is not obvious what happens next. As Officer
McDonough gets closer to Ferguson, Ferguson again states
something inaudible, and Officer McDonough responds, “Al-
right well then you’re under arrest then.” Officer McDonough
then puts his right hand on Ferguson’s left arm while facing
him and pushes Ferguson back towards his car. He next spins
Ferguson around so that he is directly up against and facing
the car, and Officer McDonough tells him to put his hands be-
hind his back. As Officer McDonough goes to grab Ferguson’s
14 No. 20-2741
hands to handcuff them, Ferguson turns his head to the right
and asks, “Why am I under arrest though?” At the same time,
Officer McDonough grabs hold of Ferguson’s right hand
while Ferguson lifts his left hand up above the car as Officer
McDonough tries to grasp it. Officer McDonough tells Fergu-
son, “Don’t resist, don’t resist,” and then pulls Ferguson’s left
arm back down behind his back while pushing him up against
the car.
A tussle occurs next, but much of what happens is unclear.
Ferguson and Officer McDonough stumble to the right to-
wards the back end of the car. Officer McDonough struggles
to handcuff Ferguson, who is moving, but it is hard to tell
from the video why he is moving—it could be because Fergu-
son is trying to escape Officer McDonough’s grasp, is falling
over from being pushed, is tripping over his pants that were
sliding down, or some other reason. A few seconds pass and
Officer McDonough states, “Get over here,” and pushes Fer-
guson’s torso down towards the street over Officer
McDonough’s leg. As Ferguson is hunched over Officer
McDonough’s leg with his head near his feet, Officer
McDonough pulls Ferguson’s hoodie, t-shirt, and hat off over
his head. Once Officer McDonough discards these clothing
items, no more than three seconds pass before Ferguson
stands up, leans away from Officer McDonough, and raises
his hands in front of him. His back is against his car, his hands
are open, and his pants are at his knees. In the same three sec-
onds, Ferguson says something (that is again inaudible) and
Officer McDonough steps a few feet back while facing Fergu-
son, grabs his taser, looks in Ferguson’s direction, and then
deploys his taser at Ferguson’s chest area once:
No. 20-2741 15
Ferguson immediately falls to the ground and another officer
enters the video screen for the first time to help Officer
McDonough finish handcuffing Ferguson.
The video does not utterly discredit the district court’s
holding that a reasonable jury could find, consistent with Fer-
guson’s version of events, that Ferguson was not actively re-
sisting when Officer McDonough tased him, and thus a rea-
sonable jury could conclude that Officer McDonough’s use of
the taser was objectively unreasonable under these circum-
stances. Officer McDonough suggests that Ferguson was ac-
tively resisting in this moment because it is “undisputed and
can be seen clearly on the squad video” that “Ferguson con-
tinued to argue while also partially raising his hands.” Appel-
lant’s Br. at 7. Not only is that a disputed fact, see R. 54 at ¶ 42
(Ferguson testifying that he wasn’t arguing), but we cannot
make out precisely what Ferguson says at this moment, so we
disagree that the video shows indisputably that Ferguson was
16 No. 20-2741
arguing when Officer McDonough tased him. Even if we ac-
cept that Ferguson was verbally arguing with Officer
McDonough at the moment of tasing, that fact would still not
utterly discredit the district court’s finding that one view of
the video favorable to Ferguson supports that he was not ac-
tively resisting when Officer McDonough tased him. Cf.
Becker v. Elfreich, 821 F.3d 920, 927 (7th Cir. 2016) (finding facts
supported that an individual who did not obey a command
to get on the ground was not actively resisting arrest because
there was evidence that the individual was not fleeing, was
not exhibiting any aggressive behavior, and was surrendering
with “his hands in full view over his head”).
Officer McDonough argues that Ferguson was actively re-
sisting at some point before Officer McDonough deployed the
taser, and that is enough to justify his use of the taser and
qualify him for immunity. But active resistance at some point
prior to an officer’s deployment of force does not necessarily
make the use of such force reasonable under the circum-
stances if the suspect is passively resisting when force is de-
ployed. It is unreasonable for an officer to use significant force
against a passively resisting suspect “notwithstanding [the]
suspect’s previous behavior—including resisting arrest,
threatening officer safety, or potentially carrying a weapon.”
Miller v. Gonzalez, 761 F.3d 822, 829 (7th Cir. 2014); see also
Strand v. Minchuk, 910 F.3d 909, 911–12 (7th Cir. 2018) (hold-
ing that the district court did not err in denying qualified im-
munity to a police officer at summary judgment because a ma-
terial question of fact existed as to whether an arrestee contin-
ued to pose a threat to the officer “at the exact moment the
officer fired the shot”). Here, the district court held that the
determination of whether Officer McDonough’s use of the
taser was objectively reasonable under the circumstances
No. 20-2741 17
depended on disputed facts, and the video does not utterly
discredit the district court’s finding. 1 If the district court had
held or if the video conclusively established that Ferguson
was actively resisting in the moment Officer McDonough
tased him, then we would have appellate jurisdiction because
the question of whether Officer McDonough’s actions were
objectively reasonable would be a pure question of law to be
resolved on undisputed facts. But those are not the circum-
stances here.
Because Officer McDonough’s arguments ask us to resolve
disputed issues of fact and the dashcam video does not utterly
discredit the district court’s findings, we lack jurisdiction over
this interlocutory appeal. The appeal is DISMISSED.
We note in closing that although the district court found
that the summary judgment record left factual issues unre-
solved, precluding a ruling on qualified immunity at that
stage of the case, this finding does not foreclose the
1 Officer McDonough also argues that even if he violated Ferguson’s
Fourth Amendment right when he tased Ferguson, that right was not
clearly established on the date the tasing incident occurred. But to decide
this question in Officer McDonough’s favor, we would first have to find
that the video utterly discredits the district court’s finding of disputed
facts, which, as explained above, we will not do. See District of Columbia v.
Wesby, 138 S. Ct. 577, 590 (2018) (“The ‘clearly established’ standard also
requires that the legal principle clearly prohibit the officer’s conduct in the
particular circumstances before him.”); Gant, 924 F.3d at 451 (“Officer
Hartman claims that he is entitled to qualified immunity because his ac-
tions did not violate Gant’s constitutional rights and, even if they did,
those rights were not clearly established on or before August 23, 2015. To
make this argument, however, Officer Hartman asks in effect that we re-
solve facts that the district court treated as disputed.”). So we leave that
issue for another day.
18 No. 20-2741
availability of qualified immunity to Officer McDonough at
trial. See Strand, 910 F.3d at 918. At trial, a jury may resolve
disputed facts in Officer McDonough’s favor, and the district
court could then determine he is entitled to qualified immun-
ity as a matter of law. Id.; see also Taylor v. City of Milford, —
F.4th —, 2021 WL 3673235, at *9 (7th Cir. 2021) (suggesting
use of special verdict form at trial to resolve factual disputes
necessary to determine qualified immunity).