Washington, Leon v. Haupert, James ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4225
LEON WASHINGTON and
CLARA WASHINGTON,
Plaintiffs-Appellees,
v.
JAMES HAUPERT, JOEL SLYGH and
FRED ROGERS,
Defendants-Appellants.
____________
Appeal from the United States District Court
Northern District of Indiana, Fort Wayne Division.
No. 03 C 96—Theresa L. Springmann, Judge.
____________
ARGUED SEPTEMBER 14, 2006—DECIDED MARCH 27, 2007
____________
Before CUDAHY, MANION, and ROVNER, Circuit Judges.
CUDAHY, Circuit Judge. Leon and Clara Washington
were arrested for domestic battery by the defendant police
officers on January 30, 2001. The plaintiffs claim that
they were simply play-fighting when Clara Washington
mistakenly called 911. In January 2002, the plaintiffs
brought a 42 U.S.C. § 1983 lawsuit against the City of Fort
Wayne, Officer James Haupert, Officer Joel Slygh and
Sergeant Fred Rogers (collectively, “the officers”). The
plaintiffs argue that the officers violated their Fourth
Amendment right to be free from unreasonable seizure by
arresting them without probable cause. Officer Haupert,
2 No. 05-4225
Officer Slygh and Sergeant Rogers filed a motion for
summary judgment on the basis of qualified immunity.
The district court denied the officers’ motion for summary
judgment, and they now appeal. We affirm.
I. Background
On January 30, 2001, Clara and Leon Washington along
with other family members returned home to Fort Wayne
from Mississippi, where they had attended the funeral of
Clara’s brother. After arriving home, in an attempt to
cheer Clara, Leon threw a few snowballs at Clara. Their
two sons joined in, and Clara also threw some snow back
at Leon. The family moved some furniture into the house
and then went inside. Leon went upstairs to take a shower
and rest. In 2001, Leon and Clara were not residing
together in the same home; however, Clara offered Leon
her room for the evening since she planned on staying
downstairs that night.
At some point later in the evening around 9:00, Clara
called up to Leon and asked him to come downstairs. She
then called out to Leon offering him a glass of juice. Leon
put his hands on her back to let her know that he had
come downstairs. At that point, the plaintiffs claim that
they playfully dashed a small amount of juice and water
on each other. Clara then went to pick up a chair that
had been knocked over earlier in the day. Leon, then,
jokingly grabbed the chair and threatened Clara with it.
Clara then said something to the effect of “Put it down or
I’ll call 911.” Leon let go of the chair and went back
upstairs to go to bed.
According to Clara, her sister then called from Missis-
sippi. Clara and her sister discussed their brother’s death
and the possibility that it might have been a murder.
Clara then decided to call the Fort Wayne police to discuss
No. 05-4225 3
her brother’s death and dialed 911. She claims that she
hung up, though, realizing that she should not have called.
The 911 operator called back, and Leon answered the
phone. According the Clara, she told the operator that
there was no problem. To this, the operator responded that
she was going to send a police car out in any event.
The following transcript of the 911 call provides a
slightly different account.
Q: 911, what is your emergency?
A: Uh, would you get a car up to 2222 Drexel
Avenue, please.
Q: 2222 . . . (beep) Hello . . . (rustling noise)
Hello . . . . . . . (beep) Hello (beep, ringing).
Male: Hello.
Q: Hello. Can I speak to the woman that I was
just speaking to please . . . hello?
A: Hello.
Q: Ma’am.
A: Yes.
Q: What’s the problem on Drexel?
A: Uh, my husband, uh, tryin’ to fight me.
Q: Has he hit you?
A: No.
Q: Is he the one that hung up?
A: Uh, no the . . . yeah yeah.
Q: Does he have any weapons?
A: No.
Q: Does he . . . has he been drinking?
4 No. 05-4225
A: No.
Q: Alright [sic] we are going to send the police
out. If anything happens before they get there
call us back.
A: Ok.
Q. Thank you.
A. Bye.
Officers James Haupert and Joel Slygh responded to the
call. According to Clara, when the officers arrived, she
explained to them that she was depressed about her
brother’s death. She also told them that she and her
husband had been playing around earlier, specifically
mentioning that they had dashed juice and water on each
other. At that point, one of the officers went upstairs to
talk with Leon. According to Leon, he was awakened as
Officer Haupert was coming up the stairs. The officer
asked him if he had a gun, to which Leon responded no.
Officer Haupert then proceeded to question him about
the situation and why the 911 call had been placed. Leon
told him that there was nothing going on and that he did
not know 911 had been called. Officer Haupert then asked
him to come downstairs.
According to the plaintiffs, the officers continued to ask
them about what had happened. At some point, Clara
asked if they were going to jail for calling 911, to which
Officer Slygh responded, “No, you ain’t going to jail.”
Officer Haupert added, “But if you ever do something like
this again, you will go to jail.”
The officers provide a vastly different account of the
conversation with the Washingtons leading up to their
arrest. According to the officers, Clara Washington said
that she and her husband had been arguing and had
thrown water and juice on each other during the argu-
No. 05-4225 5
ment. Clara also told them that Leon had grabbed her
shoulders with both hands and pushed her into the
kitchen. Clara then told the officers that she had grabbed
a chair and tried to hit Leon with it in an attempt to
defend herself. Clara then said that Leon had held the
leg of the chair across her chest and neck and hurt her
with it. She claimed that it was painful when Leon choked
her with the chair.
According to Officer Haupert, Leon reported that he had
been asleep upstairs when Clara came up to the bedroom
and began to argue with him. Both officers report that
Leon told them that Clara jumped on Leon and said,
“You wanna fight mother f_ _ _ _ _!” Leon also told the
officers that Clara had scratched him on the back of his
neck. Leon then reported that he had gone downstairs
with Clara. He told the officers that he and his wife
began wrestling over a chair, and Clara scratched his
hand and face. Leon reported that it was painful when
Clara scratched him. The police officers took nine photo-
graphs of the Washington’s home and of Leon Washing-
ton’s face, neck and hand.
At some point, the officers went outside. They returned
some time later with Sergeant Fred Rogers. According to
the plaintiffs, Rogers said that they were offering con-
flicting stories and inquired as to what was going on.
According to Clara, she then said, “Officer, I’m telling the
truth.” To which, Sergeant Rogers responded along the
lines of, “How you telling the truth when this guy here
is scratched up?” Clara then said something like, “Appar-
ently you have a problem with ladies.” At that point,
according to the plaintiffs, Sergeant Rogers ordered Officer
Haupert to arrest Clara. Leon then asked, “You’re not
taking her to jail for this, are you?” To which Rogers
allegedly responded, “Yeah, and you’re going, too.” At that
point, Leon Washington was also placed under arrest.
6 No. 05-4225
According to the defendants, after Sergeant Fred Rogers
arrived, Clara told him that she had been scratched.
At that point, the decision was made to make a dual arrest
for domestic battery.
The Information for Domestic Battery, listing Clara
Washington as the defendant, provides that she “did
knowingly or intentionally touch Leon Washington . . . [i]n
a rude, insolent or angry manner, to wit: by scratching,
and/or hitting said Leon Washington.” The Information
was signed by “J. Haupert 1652F.” The Information for
Domestic Battery, listing Leon Washington as the defen-
dant, provides that he “did knowingly or intentionally
touch Clara G. Washington . . . [i]n a rude, insolent or
angry manner, to wit: striking her.” This record was
signed by “Joel C. Slygh #1655F.” The domestic battery
charges were dismissed by the state on October 5, 2001.
On January 29, 2003, Leon Washington and Clara
Washington filed the present lawsuit against Officer
Haupert, Officer Slygh, Sergeant Rogers and the City of
Fort Wayne in state court, alleging a violation of their
Fourth Amendment right to be free from false arrest
pursuant to 42 U.S.C. § 1983, as well as claims under
state tort law. The defendants removed the lawsuit to
federal court. On July 15, 2005, the defendants filed a
motion for summary judgment, asserting that they were
entitled to qualified immunity. The district court granted
the motion as to the City of Fort Wayne on the grounds
that it did not maintain an unconstitutional policy or
custom (see Strauss v. City of Chicago, 760 F.2d 765, 768
(7th Cir. 1985)) but denied the motion as to the individ-
ual defendants. Officer Haupert, Officer Slygh and Ser-
geant Rogers appeal.
No. 05-4225 7
II. Discussion
We review a district court’s denial of summary judg-
ment on qualified immunity grounds de novo. Leaf v.
Shelnutt, 400 F.3d 1070, 1077 (7th Cir. 2005). Summary
judgment should be granted where the “pleadings, deposi-
tions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c). The evidence and all inferences that
reasonably can be drawn from the evidence are construed
in the light most favorable to the non-moving party, here,
the plaintiffs. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986).
Governmental actors performing discretionary func-
tions are entitled to qualified immunity and are “shielded
from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitu-
tional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In
Saucier v. Katz, 533 U.S. 194, 200 (2001), the Supreme
Court defined a test to determine whether a govern-
ment actor is entitled to qualified immunity. First, the
plaintiff must present evidence that, taken in the light
most favorable to the plaintiff, would allow a reasonable
fact finder to determine that he has been deprived of a
constitutional right. Id. at 201. If the plaintiff meets
that burden, the court must determine whether the
particular constitutional right was clearly established at
the time of the alleged violation. Id. If the right was
clearly established, the government actor is not entitled
to qualified immunity.
The plaintiffs allege that the defendants violated their
Fourth Amendment rights to be free from unreasonable
seizure. In order to survive summary judgment, the
8 No. 05-4225
plaintiffs first must present evidence which would allow
a reasonable fact finder to determine that they were
arrested without probable cause. See Booker v. Ward, 94
F.3d 1052, 1057 (7th Cir. 1996). The Fourth Amendment
permits warrantless arrests only if the arresting officer
has probable cause to believe that a crime has been
committed. Thompson v. Wagner, 319 F.3d 931, 934 (7th
Cir. 2003). “In order to have probable cause for an arrest,
law enforcement agents must reasonably believe, in
light of the facts and circumstances within their knowl-
edge at the time of the arrest, that the suspect had
committed or was committing an offense.” Payne v. Pauley,
337 F.3d 767, 776 (7th Cir. 2003); see also Beck v. Ohio,
379 U.S. 89, 91 (1964). Reasonableness turns on what
the officers knew, not whether they knew the truth or
whether they should have known more. Gramenos v. Jewel
Companies, 797 F.2d 432, 439 (7th Cir. 1986); see also
Thompson, 319 F.3d at 934.
The Washingtons were arrested for domestic battery,
which Indiana defines as:
A person who knowingly or intentionally touches an
individual who:
(1) is or was a spouse of the other person;
(2) is or was living as a spouse of the other per-
son as provided in subsection (c); or
(3) has a child in common with the other person;
in a rude, insolent, or angry manner that re-
sults in bodily injury to the person described in
subdivision (1), (2), or (3) commits domestic
battery, a Class A misdemeanor.
Ind. Code § 35-42-2-1.3(a) (2006). Here, in order to allege
a constitutional violation, the Washingtons must present
sufficient evidence that would allow a jury to conclude
that the officers unreasonably believed that the Wash-
No. 05-4225 9
ingtons had knowingly or intentionally touched each other
in a rude, insolent or angry manner that resulted in
bodily injury.
In reviewing a denial of summary judgment on the
basis of qualified immunity, we adopt the facts as specified
by the district court. Johnson v. Jones, 515 U.S. 304, 317
(1995); Leaf, 400 F.3d at 1078; McKinney v. Duplain, 463
F.3d 679, 688 (7th Cir. 2006). The district court assumed
the following facts for purposes of determining the defen-
dants’ summary judgment motion. “Clara had juice in her
hands and playfully dashed it on Leon.” Washington v. City
of Fort Wayne, No. 1:03-CV-96-TS, slip op. at 4 (N.D. Ind.
Nov. 2, 2005). “Leon then playfully picked up a chair to get
back at her, but she threatened to call 911.” Id. “Clara
accidentally called 911 and hung up.” Id. “The operator
asked Clara if there was a problem at her home, and Clara
responded, ‘Uh, my husband, uh, tryin’ to fight me.’ ” Id.“Clara told them [Officers Haupert and Slygh] that Leon
was asleep, that there was no trouble, and that she and
Leon had been playing around.” Id. “They [Haupert and
Slygh] questioned him [Leon] and he confirmed Clara’s
story.” Id. In response to Sergeant Rogers’ inquiry, “Clara
said, ‘Officer, I am telling the truth,’ to which Sergeant
Rogers said, ‘How you telling the truth when this guy
here is scratched up.’ ” Id. at 5. “When Leon asked them,
‘You’re not taking her to jail for this, are you?’ Sergeant
Rogers ordered his arrest as well.” Id.
Based on these facts, a reasonable jury could find it
was not reasonable for the officers to believe that Leon
and Clara Washington had committed a crime, namely
domestic battery. The plaintiffs described their interac-
tions as “playful,” in no way implying that they had
touched each other in a “rude, insolent, or angry manner.”
Moreover, besides a passing reference to being scratched,
the plaintiffs did not mention any claims of bodily injury
10 No. 05-4225
to the officers. Cf. Simmons v. Pryor, 26 F.3d 650, 654 (7th
Cir. 1993) (holding that the defendant police officer had
probable cause to arrest the husband for domestic bat-
tery where officers witnessed the couple “passing licks
with open hand,” the wife told the officer about the
violence which was corroborated by other witnesses and
the officer knew of the wife’s previously obtained order
of protection).
Typically, cases in which we have affirmed the grant of
summary judgment on qualified immunity grounds to
police officers involve arrests in which a witness, most
commonly the putative victim, provides sufficient support
to justify the officer’s decision. See Beauchamp v. City of
Noblesville, 320 F.3d 733, 743 (7th Cir. 2003) (“The
complaint of a single witness or putative victim alone
generally is sufficient to establish probable cause to
arrest unless the complaint would lead a reasonable officer
to be suspicious, in which case the officer has a further
duty to investigate.”); see also Woods v. City of Chicago,
234 F.3d 979, 987 (7th Cir. 2000); Guzell v. Hiller, 223
F.3d 518, 519-20 (7th Cir. 2000); Tangwall v. Stuckey, 135
F.3d 510, 516 (7th Cir. 1998); Gerald M. v. Conneely, 858
F.2d 378, 381 (7th Cir. 1988); Gramenos, 797 F.2d at 439.
But, importantly, in the present case, there are no wit-
nesses offering testimony to support the officers’ version of
the Washingtons’ arrests. Both Clara Washington and
Leon Washington deny any physical altercation which
would qualify as domestic battery under Indiana law, and
they claim that they told the officers they were simply
play-fighting.
The defendants attempt to rebut the Washingtons’
account of their arrest by couching it in a couple of legal
arguments, both of which fail. First, the officers argue
that the facts offered by the Washingtons, and relied on
by the district court to find that genuine issues of material
No. 05-4225 11
facts exist, are irrelevant or immaterial, and therefore
should not preclude summary judgment. Appellant’s
Opening Br. at 12. The parties dispute the contents of the
conversation leading up to their arrest on the night of
January 30, 2001. What was conveyed to the officers goes
to the heart of probable cause, and therefore, these facts
are relevant and material to this motion. Second, relying
on Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986), the defendants also contend that
the plaintiffs must provide “more persuasive evidence to
support their claim” since the “factual context renders
the claims asserted by the party opposing summary
judgment implausible.” See Appellant’s Opening Br. at 12.
Matsushita does not apply to the present case since its
holding is limited to antitrust law. And, more importantly,
whether the Washingtons’ story is “implausible” rests
on whether they are credible, and we are not in a position
to make that assessment. See Payne, 337 F.3d at 770-71(holding that a court may not make “credibility deter-
minations” at the summary judgment stage).
The defendants offer an account of the “undisputed
facts,” which differs from that relied on by the district
court in two important ways.1 The defendants rely on
1
The “undisputed facts” as described by the defendants are as
follows:
The undisputed facts show that the police officers were
called by Clara Washington to the Appellees’ residence
because of a domestic problem. The undisputed facts
show that there was a chair overturned in the kitchen.
Officer Haupert took photographs of the chair. The undis-
puted facts show that Clara Washington told the police
officers that Leon Washington had put his hands on her
shoulders and scratched her. She told the police officers
that she and Leon Washington had dashed juice on each
(continued...)
12 No. 05-4225
photographs taken by Officer Haupert of the Washingtons’
kitchen, most notably of an overturned chair, and of Leon
Washington’s face, hand and neck. The district court did
not include a discussion of these photographs in its
account of the facts, which it should have.2 See Green v.
Carlson, 826 F.2d 647, 651 (7th Cir. 1987) (holding that
when qualified immunity turns on the defendant’s
actual conduct “the district court should consider not only
the plaintiff ’s allegations, but all the undisputed facts
1
(...continued)
other. The undisputed facts show that Leon Washington had
several scratches on him. Officer Haupert took photographs
of the scratches.
Appellant’s Opening Br. at 12.
2
Judge Manion, writing separately, argues that this court
must accept the facts as set forth by the district court and
therefore should not consider the photographs or the 911
transcript. Since the transcript of the 911 call was in fact
considered by the district court, we address only the photo-
graphs. In Johnson v. Jones, 515 U.S. 304 (1995), the Supreme
Court affirmed this court’s decision to dismiss an appeal for lack
of jurisdiction because the appellants, police officers appealing
the district court’s denial of summary judgment on qualified
immunity grounds, asked this court to determine a question of
sufficiency of the evidence. Id. at 313. The Court stated that
“[w]hen faced with an argument that the district court mistak-
enly identified clearly established law, the court of appeals can
simply take, as given, the facts that the district court assumed
when it denied summary judgment for that (purely legal)
reason.” Id. at 319 (emphasis added). The appellate court is not
required to accept the facts as described by the district court,
although in most instances it is appropriate to do so. But, in
cases, such as the present one, where the appellants are not
asking the court to resolve factual disputes or determine wheth-
er the evidence is sufficient, it is appropriate for this court to
look beyond the factual account of the district court to all
undisputed evidence.
No. 05-4225 13
in the record when deciding whether the defendant’s
conduct violated clearly established legal principles”).
Regardless, these photographs do not change the outcome
of the decision to deny summary judgement to the defen-
dants, since neither the photograph of the overturned chair
nor the photographs of Leon Washington establish proba-
ble cause for the Washingtons’ arrest.
As for the overturned chair, according to the
Washingtons, the chair was overturned when they were
moving their things in from the truck. Even if that expla-
nation was not conveyed to the officers, the overturned
chair, in light of the Washingtons’ account of their con-
versation with the officers, does not alter our conclusion
that the plaintiffs have alleged sufficient facts to allow a
reasonable jury to find that the officers lacked probable
cause to arrest them. Although the overturned chair
itself may not be in dispute, the facts surrounding it
certainly are.
The other “undisputed fact” offered by the defendants
is the alleged scratches on Leon Washington, which
Officer Haupert photographed.3 The photographs certainly
show abrasions of some kind on Leon Washington’s chin
and hand; any mark on his neck is more difficult to make
out. However, we must credit the plaintiffs’ story. See
Payne, 337 F.3d at 777. The photographs, in light of the
Washingtons’ account of the night of their arrests, do
not alter our conclusion that the plaintiffs have alleged
sufficient facts for a reasonable factfinder to conclude
that the officers lacked probable cause to arrest them. A
3
Incidentally, assuming arguendo that the photographs of the
scratches on Leon Washington were sufficient to establish
probable cause, the officers only would have had probable cause
to arrest Clara Washington, since the photographs only support
bodily injury suffered by her husband.
14 No. 05-4225
jury should consider what weight, if any, should be given
to these photographs in determining whether the defen-
dants had probable cause to arrest the Washingtons. Cf.
Maxwell v. City of Indianapolis, 998 F.2d 431, 435 (7th
Cir. 1993) (“To the extent that the presence or absence of
probable cause turns on the resemblance of Maxwell to the
descriptors and photograph of the fugitive Moore, the
question necessarily becomes a factual one for the jury.”)
In asking this court to reverse the district court’s denial
of summary judgment, the officers are asking us to make
credibility determinations, which as previously discussed,
is an inappropriate request. “On summary judgment a
court may not make credibility determinations, weigh the
evidence, or decide which inferences to draw from the
facts; these are jobs for a factfinder.” Payne, 337 F.3d at770 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986)). However implausible the Washingtons’
account might seem, it is not our place to decide who
is telling the truth. “Where the parties present two vastly
different stories—as they do here—it is almost certain that
there are genuine issues of material fact in dispute.”
Payne, 337 F.3d at 770; see also Qian v. Kautz, 168 F.3d
949, 953 (7th Cir. 1999) (“[S]ummary judgment is only
appropriate when there is no room for a difference of
opinion concerning the facts or the reasonable inferences
to be drawn from them.”). Viewing the facts in the light
most favorable to the plaintiffs, the Washingtons have
alleged sufficient facts for a jury to find that they suf-
fered a constitutional violation pursuant to 42 U.S.C.
§ 1983 by being subjected to unreasonable seizure.
We are now required to examine whether the contours
of the alleged constitutional violation were clearly estab-
lished at the time of the incident. Saucier, 533 U.S. at 201.
If not, the defendants are entitled to qualified immunity.
“To be ‘clearly established,’ the right in question must
be ‘sufficiently clear that a reasonable official would
No. 05-4225 15
understand that what he is doing violates that right.’ ”
Miller v. Jones, 444 F.3d 929, 934 (7th Cir. 2006) (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Accord-
ing to the plaintiffs, the police officers fabricated a police
report in order to justify their arrests. A reasonable officer
would have understood that what he was doing violated
their right to be free from unreasonable seizure. See
Driebel v. City of Milwaukee, 298 F.3d 622, 652 (7th Cir.
2002) (holding that “innumerable decisions . . . have
clearly established the right to be free from arrest with-
out probable cause”).
Summary judgment is not appropriate when the facts
are disputed as they are here. “[I]f the question of probable
cause arises in a damages suit, it is a proper issue for the
jury if there is room for a difference of opinion concerning
the facts or the reasonable inferences to be drawn from
them.” Maxwell, 998 F.2d at 434; see also Moore v. Market-
place Rest., Inc., 754 F.2d 1336, 1347 (7th Cir. 1985);
Lester v. City of Chicago, 830 F.2d 706, 715 (7th Cir. 1987).
Since we are not in a position to “resolve swearing con-
tests between litigants,” we must affirm the district
court’s denial of summary judgment. Payne, 337 F.3d at
770.
III. Conclusion
For the foregoing reasons, we AFFIRM the district
court’s denial of the defendants’ motion for summary
judgment.
16 No. 05-4225
MANION, Circuit Judge, concurring. I concur. On inter-
locutory appeal from the denial of qualified immunity, this
court must accept the facts as set forth by the district
court. Johnson v. Jones, 515 U.S. 304, 317 (1995). In this
case, the district court stated that under the facts as
alleged by the plaintiffs, the plaintiffs “never accused each
other of battery or otherwise gave an impression to the
officers that they were involved in a domestic dispute.”
District Court Opinion at 6. This factual finding seemingly
conflicts with the content of the 911 tape, as summarized
in the district court opinion, as well as the physical
evidence presented to the district court in the form of
photographs of an overturned chair and scratches on
Leon’s face. The 911 call indicated that Leon had commit-
ted domestic battery and the scratches on Leon indicated
that Clara had committed that same offense. And the
overturned chair supports the view that a domestic dis-
pute had been under way. Even if the Washingtons
disclaimed any dispute once the officers arrived, the
officers could still have reasonably disbelieved the Wash-
ingtons’ story. Thus, it would seem that even accepting
the Washingtons’ version of the facts, the officers would
be entitled to qualified immunity. But the district court
read the record differently, stating that the Washingtons
never “gave an impression to the officers that they were
involved in a domestic dispute.” District Court Opinion at
6. On interlocutory appeal, contrary to the court’s state-
ment that an “appellate court is not required to accept
the facts as described by the district court . . .”, see supra
at 12 n.2, that is precisely what we must do. On appeal
from the denial of qualified immunity, this court lacks
jurisdiction to review the record to determine whether the
district court’s summary of the facts is supported by the
record evidence. Johnson, 515 U.S. at 319-20 (“For these
reasons, we hold that a defendant entitled to invoke a
qualified immunity defense may not appeal a district
No. 05-4225 17
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.”). See also Via v. LaGrand,
469 F.3d 618, 625 (7th Cir. 2006) (“However, on interlocu-
tory appeal of a denial of qualified immunity, this court
generally lacks jurisdiction to review the full record.
Instead, we may only consider whether the defendant is
entitled to qualified immunity given the factual disputes
found by the district court.” (footnote omitted)). Therefore,
given the district court’s recital of the facts, I agree that
affirmance is appropriate.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-27-07