Miguel Gutierrez v. Michael Kermon , 722 F.3d 1003 ( 2013 )


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  •                               In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 12-2934
    M IGUEL G UTIERREZ,
    Plaintiff-Appellee,
    v.
    M ICHAEL R. K ERMON,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Southern District of Indiana, Indianapolis Division.
    No. 1:11-cv-0185-TWP-DML—Tanya Walton Pratt, Judge.
    A RGUED JANUARY 17, 2013—D ECIDED JULY 12, 2013
    Before M ANION and T INDER, Circuit Judges, and L EE,
    District Judge. Œ
    T INDER, Circuit Judge. Miguel Gutierrez brought this
    action under 
    42 U.S.C. § 1983
     against Indianapolis Metro-
    politan Police Officer Michael R. Kermon (and others not
    involved in this appeal), alleging, among other things, that
    Œ
    The Honorable John Z. Lee of the Northern District of
    Illinois, sitting by designation.
    2                                              No. 12-2934
    Kermon trampled his fourth amendment rights by
    seizing him without reasonable suspicion or probable
    cause. Officer Kermon moved for summary judgment,
    arguing that he had not violated Gutierrez’s rights or, if
    he had, that he was nevertheless entitled to qualified
    immunity. The district judge concluded that Kermon
    had reasonable suspicion to make an investigative de-
    tention but that genuine issues of material fact pre-
    cluded a finding of qualified immunity on the issue of
    probable cause. Officer Kermon brought this inter-
    locutory appeal challenging the district court’s denial
    of qualified immunity on the issue of probable cause.
    Because Kermon’s argument depends on a disputed
    fact, we dismiss this appeal for want of jurisdiction.
    I
    The parties agree that shortly before 10 p.m. on March 8,
    2009, Officer Kermon arrested Gutierrez and charged
    him with public intoxication and resisting arrest under
    Indiana law, but they offer drastically different narra-
    tives concerning almost all other events of that evening.
    According to Gutierrez, he was walking home from
    work, minding his own business, when Officer Kermon,
    who never identified himself as a police officer, stopped
    him at gunpoint, pepper sprayed him, placed him in
    handcuffs, delivered a few gratuitous kicks to his torso,
    and directed a racially derogatory comment at him.
    Officer Kermon, on the other hand, says that Gutierrez
    was a belligerent drunkard who was unsteady on his feet,
    yelled at Kermon, assumed an aggressive fighting stance
    No. 12-2934                                                   3
    as Kermon approached to ask him a question, and
    then actively resisted being placed in handcuffs. Not-
    withstanding these drastically different accounts, given
    the posture of this appeal, we must view the facts as
    assumed by the district court when it denied summary
    judgment or as asserted by Gutierrez, the nonmovant.
    See, e.g., White v. Gerardot, 
    509 F.3d 829
    , 833 (7th Cir. 2007).
    Around 9:30 p.m. on the night of the arrest, Gutierrez,
    a commercial truck driver, began walking toward his
    home after completing maintenance work on his truck.
    See Appellee’s App. at 74, 126, 128, 130. Gutierrez was
    wearing his dirty work clothes, had a somewhat
    disheveled appearance, and had irritated eyes due to
    contact with debris as he worked. Id. at 37, 85, 114. It was
    dark outside and Gutierrez lived in a dangerous, high-
    crime area, so before setting off toward home he armed
    himself with a golf club to fend off potential muggers. Id.
    at 19, 25.
    Meanwhile, around 9:40 p.m., Officer Kermon re-
    sponded to a dispatch report that two African-American
    men were chasing and trying to fight a third individual
    in front of a house in Gutierrez’s neighborhood. Id. at
    113, 116. Kermon approached the house in his marked
    squad car, creeping slowly down the street with his
    headlights off because he was unsure of what dangers, if
    any, were lurking, and at some point he observed
    Gutierrez walking on the sidewalk near the entryway of
    the house. Id. at 24, 29-30, 79, 81, 113, 116; Appellant’s
    Supp. App. at 47-48, 62-63.
    Gutierrez observed a vehicle (not Kermon’s) with its
    headlights on parked along the west side of the street
    4                                                  No. 12-2934
    facing him, and to avoid any potential trouble he
    decided to cross over to the east side of the street. Id. at 17-
    23, 25. As he crossed the street, Gutierrez observed a
    car creeping slowing toward him, at which point he
    paused, turned around, and returned to the sidewalk
    on the west side of the street. Id. at 22-25. Unbeknownst
    to Gutierrez, the car he had observed approaching was
    Officer Kermon’s squad car; Gutierrez could not see
    that the car was a police car because it was dark outside,
    the squad car’s headlights were off, and a row of cars
    parked along the street partially obstructed his view. Id.
    at 17-18, 21-25.
    The following events unfolded rapidly. Officer Kermon
    could tell that Gutierrez was not African-American,
    hence not one of the two suspected assailants mentioned
    in the dispatch report, but believing that Gutierrez may
    have been the victim of the reported incident, Kermon
    stopped his car, exited, and yelled out to Gutierrez,
    “Hey, you, stop right there! Hey, you, stop!” Id. at 26, 83,
    113, 116; Appellant’s Supp. App. at 64-65. Though he
    heard these statements, Gutierrez continued walking
    because he did not recognize the voice and did not know
    Kermon was a police officer (it is undisputed that Kermon
    never identified himself as such and never activated
    the emergency lights on his squad car). Appellee’s App.
    at 26-27, 33-34. Officer Kermon began approaching
    Gutierrez, at which point he observed that Gutierrez’s
    clothes were dirty and disheveled, that his hair was in
    disarray (or as Kermon described it, “not neatly combed”),
    that he appeared agitated, and that he was carrying a
    golf club. Appellant’s Supp. App. at 66-67. (Officer Kermon
    No. 12-2934                                                  5
    testified that Gutierrez was animated and aggressive
    and also that he was swaying and unsteady, id. at 66-67,
    93, but Gutierrez denies this.)
    Because Gutierrez had not complied with his com-
    mands, Officer Kermon unholstered his gun, ran in front
    of Gutierrez, and stopped him at gunpoint while shining
    a flashlight in his face. Id. at 44-46, 48-49, 67-69;
    Appellee’s App. at 26-27, 30-31, 87-88. Officer Kermon
    ordered Gutierrez to get on the ground, to raise his
    hands, and to drop the golf club. Appellee’s App. at 27, 32-
    33, 114, 116. Gutierrez, still not aware that he was being
    confronted by a police officer, initially hesitated. Id. at 27-
    35. But then Officer Kermon lowered his flashlight
    and Gutierrez finally caught a glimpse of Kermon’s badge
    and uniform; Gutierrez immediately discarded the golf
    club. Id. at 28-30; Appellant’s Supp. App. at 46-49. As
    Gutierrez tossed the golf club aside, he began pointing
    toward his house and saying, “Hey, what’s going on?
    I live right there.” Appellee’s App. at 28. But before
    Gutierrez could say anything else, Officer Kermon
    sprayed him in the face with pepper spray. Id. at 28-30. It
    was also around this time, after the golf club had been
    discarded but before the pepper spray had been
    deployed, that Kermon observed that Gutierrez’s eyes
    were red and glossy. See id. at 88-89.
    Gutierrez was handcuffed with the help of a second
    officer that had arrived on scene. Id. at 38-42. Officer
    Kermon then gratuitously kicked Gutierrez in the
    abdomen twice, and when Gutierrez asked whether
    Kermon could get away with it, Officer Kermon allegedly
    6                                              No. 12-2934
    said, “Of course, I can do whatever I want to you, you
    filthy Mexican.” Id. at 42-46, 49-50. Gutierrez was then
    taken to jail and charged with public intoxication and
    resisting arrest.
    The charges were ultimately dropped after a state
    magistrate judge ruled that the initial stop of
    Gutierrez had been unlawful. Gutierrez subsequently
    brought this action under 
    42 U.S.C. § 1983
     against
    Officer Kermon and others (though this appeal concerns
    only Officer Kermon), asserting several federal and sup-
    plemental state-law claims. As relevant here, Gutierrez
    alleged that Officer Kermon violated the Fourth Amend-
    ment by seizing him without reasonable suspicion
    in violation of Terry v. Ohio, 
    392 U.S. 1
     (1968) (“Terry
    claim”), and without probable cause (“false-arrest claim”).
    Officer Kermon moved for summary judgment on the
    grounds that he had not violated Gutierrez’s rights and,
    at the very least, that he was entitled to qualified immu-
    nity. The district court granted the motion in part and
    denied it in part. Gutierrez v. City of Indianapolis, 
    886 F. Supp. 2d 984
    , 1001 (S.D. Ind. 2012). The court granted
    summary judgment for Officer Kermon on Gutierrez’s
    Terry claim, concluding that Kermon had reasonable
    suspicion to make an investigative stop because, from
    his viewpoint, Gutierrez was carrying a golf club,
    appeared agitated, refused to obey Kermon’s commands,
    and was near the residence to which Officer Kermon had
    No. 12-2934                                                      7
    been dispatched.1 
    Id. at 993-94
    . Officer Kermon argued
    1
    Although it concluded that the initial seizure was justified by
    reasonable suspicion, the district court did not consider
    whether the initial seizure was “reasonably related in scope to
    the circumstances which justified the interference in the first
    place.” Terry, 
    392 U.S. at 20
    . Even if reasonable suspicion
    exists, if an officer uses unreasonably intrusive means to
    effectuate a seizure it may be deemed a de facto arrest requiring
    probable cause, rather than an investigative detention under
    Terry. See, e.g., Dunaway v. New York, 
    442 U.S. 200
    , 208-
    14 (1979); United States v. Ienco, 
    182 F.3d 517
    , 523-24 (7th Cir.
    1999); United States v. Novak, 
    870 F.2d 1345
    , 1351-53 (7th Cir.
    1989) (stopping suspects, neither of whom were believed to be
    armed and dangerous, at gunpoint exceeded bounds of Terry
    and amounted to full-fledged arrest); cf. Ramos v. City of
    Chicago, No. 10-3425, 
    2013 WL 2264346
    , at *4 (7th Cir. May 24,
    2013) (“The proliferation of cases in this court in which ‘Terry’
    stops involve handcuffs and ever-increasing wait times in
    police vehicles is disturbing, and we would caution law enforce-
    ment officers that the acceptability of handcuffs in some
    cases does not signal that the restraint is not a significant
    consideration in determining the nature of the stop.”). The
    fact that Gutierrez brought a claim of false arrest in addition
    to his Terry claim does not necessarily render this an
    irrelevant point. The viability of a false-arrest claim turns on
    whether there was probable cause to justify the arrest, see, e.g.,
    Abbott v. Sangamon County, Ill., 
    705 F.3d 706
    , 714 (7th Cir. 2013),
    and the existence of probable cause depends in large part on
    the facts and circumstances known to the officer at the time
    of arrest, see Ornelas v. United States, 
    517 U.S. 690
    , 696 (1996).
    Here, it appears that certain observations were made after the
    (continued...)
    8                                                  No. 12-2934
    that he also had probable cause to arrest for public intoxi-
    cation because, at the time of the arrest, he had observed
    that Gutierrez had red eyes, had a disheveled ap-
    pearance, and was swaying and having trouble main-
    taining his balance. Id. at 994. The district court, though,
    found that it could not make a finding of probable
    cause because Gutierrez denied swaying or shifting
    his weight, did not smell of alcohol, and had not had
    time to explain his disheveled appearance and red eyes,
    as he had been sprayed immediately with pepper spray.
    Id. The court went on to conclude that these factual dis-
    putes also precluded a finding of qualified immunity. Id.
    at 995. Officer Kermon appeals the denial of qualified
    immunity on the false-arrest claim. (Other claims
    remain pending before the district court awaiting trial,
    including an excessive-force claim and an equal protec-
    tion claim.)
    II
    The Fourth Amendment prohibits unreasonable sei-
    zures. To be deemed reasonable, a warrantless arrest made
    in public must be supported by probable cause, United
    States v. Watson, 
    423 U.S. 411
    , 414-24 (1976), and so the
    1
    (...continued)
    initial seizure, which means that if the initial seizure was the
    arrest, and not merely an investigatory detention, then those
    observations would not factor into the probable-cause in-
    quiry. Given our disposition of this appeal, we need not address
    these issues.
    No. 12-2934                                                9
    existence of probable cause is an absolute defense to
    a § 1983 claim for false arrest, Mustafa v. City of Chicago,
    
    442 F.3d 544
    , 547 (7th Cir. 2006). (The existence of
    probable cause is necessary but not sufficient for an
    arrest to be reasonable; the reasonableness of an arrest
    depends both on its justification and the manner in which
    it was effectuated. See Tennessee v. Garner, 
    471 U.S. 1
    , 8
    (1985).) Probable cause to arrest exists if the totality of
    the circumstances known to the officer at the time of the
    arrest would warrant a reasonable person in believing
    that the arrestee had committed, was committing, or
    was about to commit a crime. Abbott v. Sangamon County,
    Ill., 
    705 F.3d 706
    , 714 (7th Cir. 2013); see also Maryland v.
    Pringle, 
    540 U.S. 366
    , 370-71 (2003). It is a practical,
    commonsense standard that requires only the type of
    fair probability on which reasonable people act. See
    Florida v. Harris, 
    133 S. Ct. 1050
    , 1055-56 (2013); Hanson
    v. Dane County, Wis., 
    608 F.3d 335
    , 338 (7th Cir. 2010).
    Based as it is on probabilities rather than hard cer-
    tainties, the probable-cause standard inherently allows
    room for reasonable mistakes. Brinegar v. United States,
    
    338 U.S. 160
    , 176 (1949). Qualified immunity affords an
    even greater level of protection by shielding officers
    from “suit for damages if ‘a reasonable officer could
    have believed [the arrest] to be lawful, in light of clearly
    established law and the information the [arresting]
    officers possessed.’ ” Hunter v. Bryant, 
    502 U.S. 224
    , 227
    (1991) (per curiam) (second alteration in original)
    (quoting Anderson v. Creighton, 
    483 U.S. 635
    , 641 (1987));
    see also, e.g., Pearson v. Callahan, 
    555 U.S. 223
    , 231 (2009)
    (“The doctrine of qualified immunity protects govern-
    10                                                No. 12-2934
    ment 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.’” (quoting Harlow v.
    Fitzgerald, 
    457 U.S. 800
    , 818 (1982))). In this context, quali-
    fied immunity provides shelter for officers who have
    “arguable probable cause” to arrest—i.e., those officers
    that reasonably but mistakenly believe they have
    probable cause. See Abbott, 705 F.3d at 714-15, 723-24;
    Humphrey v. Staszak, 
    148 F.3d 719
    , 725 (7th Cir. 1998).
    Though they may appear to be the same, the probable-
    cause and arguable-probable-cause inquiries are dif-
    ferent. Fleming v. Livingston County, Ill., 
    674 F.3d 874
    ,
    880 (7th Cir. 2012). An arrest without probable cause is
    a violation of a constitutional right, whereas an arrest
    without arguable probable cause is a violation of a
    “clearly established” constitutional right. See Hunter,
    
    502 U.S. at 227
    ; McComas v. Brickley, 
    673 F.3d 722
    , 725
    (7th Cir. 2012).
    Officer Kermon contends that the district court erred
    in denying summary judgment on his defense of
    qualified immunity with regard to Gutierrez’s false-
    arrest claim. He concedes that many factual disputes
    exist, but he argues that there are six “undisputed” facts
    that entitle him to qualified immunity notwithstanding
    the chaotic state of the record. Those six facts are
    (1) Gutierrez’s unsteady gait; (2) his dirty, disheveled
    appearance; (3) his possession of a golf club; (4) his ap-
    parent agitation; (5) his lack of cooperation; and (6) his
    red, watery eyes. Officer Kermon maintains that, on
    the basis of these six facts, a reasonable person in his
    No. 12-2934                                                 11
    position reasonably, even if mistakenly, could have
    believed that there was probable cause to arrest
    Gutierrez for committing the crime of public intoxication
    under Indiana law, see 
    Ind. Code § 7.1-5-1
    -3. We are
    unable to reach the merits of Kermon’s argument
    because we lack jurisdiction over this interlocutory appeal.
    As a general matter, the denial of summary judgment
    is not appealable because it is not a “final decision” for
    purposes of 
    28 U.S.C. § 1291
    . Ortiz v. Jordan, 
    131 S. Ct. 884
    ,
    891 (2011). But an order denying qualified immunity on
    summary judgment often is immediately appealable on
    the basis that it is a final decision on the defendant’s
    right not to stand trial and, as such, a collateral order.
    Mitchell v. Forsyth, 
    472 U.S. 511
    , 524-30 (1985); see also
    Cohen v. Beneficial Indus. Loan Corp., 
    337 U.S. 541
    , 546
    (1949) (describing narrow class of collateral orders). This
    is so even though the defendant will be required to go
    to trial on other claims, for the “right to immunity is a
    right to immunity from certain claims, not from litiga-
    tion in general.” Behrens v. Pelletier, 
    516 U.S. 299
    , 312
    (1996) (emphasis omitted). That said, we 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. See Johnson v.
    Jones, 
    515 U.S. 304
    , 313-20 (1995); see also Elliott v. Thomas,
    
    937 F.2d 338
    , 341-43 (7th Cir. 1991) (no jurisdiction
    over appeal in which officers simply denied that they
    injured the plaintiff).
    Gutierrez argues that, under Johnson, we lack jurisdic-
    tion over this appeal because the district court denied
    12                                               No. 12-2934
    summary judgment on the basis that there are genuine
    factual disputes between the parties. Gutierrez over-
    reads Johnson. A district court’s finding that there are
    genuine issues of material fact “does not always
    preclude appellate review.” Sallenger v. Oakes, 
    473 F.3d 731
    , 738 (7th Cir. 2007). The Supreme Court has ex-
    plained that the “[d]enial of summary judgment often
    includes a determination that there are controverted
    issues of material fact, and Johnson surely does not
    mean that every such denial of summary judgment is
    nonappealable. Johnson held, simply, that determina-
    tions of evidentiary sufficiency at summary judgment
    are not immediately appealable merely because they
    happen to arise in a qualified-immunity case . . . .” Behrens,
    
    516 U.S. at 312-13
     (internal citation omitted). Thus,
    Johnson prohibits us from reviewing “the record to deter-
    mine whether the district court erred in finding that a
    genuine issue of material fact exists,” Via v. LaGrand, 
    469 F.3d 618
    , 624 (7th Cir. 2006), and so “we may not make
    conclusions about which facts the parties ultimately
    might be able to establish at trial,” Leaf v. Shelnutt, 
    400 F.3d 1070
    , 1078 (7th Cir. 2005). But Johnson does not pro-
    hibit us from considering the abstract legal question of
    whether a given set of undisputed facts demonstrates a
    violation of clearly established law. Behrens, 
    516 U.S. at 313
    ; Leaf, 
    400 F.3d at 1078
    . In reviewing this purely
    legal question, we take the facts as the district court
    assumed them when denying summary judgment,
    Johnson, 
    515 U.S. at 319
    , or in a light most favorable to
    the plaintiff, the nonmovant, Knox v. Smith, 
    342 F.3d 651
    ,
    656 (7th Cir. 2003).
    No. 12-2934                                             13
    Officer Kermon argues that he is entitled to qualified
    immunity notwithstanding the many factual disputes
    identified by the district court. At first blush, Kermon’s
    position appears to take this case outside the scope
    of Johnson. We are, however, troubled by Kermon’s
    reliance on Gutierrez’s allegedly unsteady gait as
    one of the purportedly “undisputed” facts. Gutierrez
    vehemently denies that he was unsteady, and he argues
    vociferously that the district court found this to be
    a genuine factual dispute. We agree with Gutierrez’s
    characterization of the district court’s order.
    One of the reasons the district judge gave in support of
    her decision was that there is a factual dispute as to
    whether Gutierrez was swaying or unsteady on his feet.
    Officer Kermon says he is not challenging this conclu-
    sion, but he argues that there is undisputed evidence
    that Gutierrez walks with a limp due to a permanent leg
    injury suffered some time ago. And, according to
    Kermon, the district court found a factual dispute only as
    to whether Gutierrez was swaying after being stopped,
    not as to whether he walked with an unsteady gait before
    he was stopped. Yet a close reading of the district court’s
    opinion indicates otherwise. The court explained, “Officer
    Kermon observed that Mr. Gutierrez . . . had an issue
    with balancing himself as he walked, giving the ap-
    pearance that he swayed,” but it found this to be
    disputed because Gutierrez “denie[d] that he was
    swaying or shifting his weight in front of Officer Kermon.”
    886 F. Supp. 2d at 994 (emphasis added). It is not
    apparent from this that the district judge drew the fine
    distinction Kermon urges, and we see nothing else in the
    14                                              No. 12-2934
    district court’s opinion indicating that it assumed
    Gutierrez had been walking with an unsteady gait
    before being stopped. Indeed, the most natural reading
    of the quoted language is that the district court con-
    sidered Kermon’s argument on this point and rejected it.
    Kermon fares no better if we presume for the sake
    of argument that the district court was simply silent on
    the issue, in which case we might have license to engage
    in a somewhat limited review of the record. See Johnson,
    
    515 U.S. at 319
     (where a district court does not clearly
    state the facts on which it bases its legal determination
    “a court of appeals may have to undertake a cumber-
    some review of the record to determine what facts
    the district court, in the light most favorable to the
    nonmoving party, likely assumed”); Washington v.
    Haupert, 
    481 F.3d 543
    , 548-50 (7th Cir. 2007) (explaining
    that in certain circumstances it may be appropriate for
    an appellate court to examine all undisputed evidence in
    the record, even evidence not considered by the district
    court); accord Lockridge v. Bd. of Trs. of Univ. of Ark., 
    315 F.3d 1005
    , 1008 (8th Cir. 2003) (en banc); Winfield v. Bass,
    
    106 F.3d 525
    , 534-35 (4th Cir. 1997) (en banc).
    While Gutierrez testified that he walks with a limp and
    occasionally requires a cane, Appellant’s Supp. App. at 32,
    there is no indication as to how pronounced a limp he
    has or how severe it was on the night of the arrest (and
    that he occasionally requires a cane suggests that the
    severity of his limp varies). Kermon testified that he
    observed Gutierrez walking but did not say that Gutierrez
    walked unsteadily. Id. at 63, 65. Thus, to assume that
    Gutierrez walked with an unsteady gait that night
    No. 12-2934                                               15
    would require drawing an inference in Kermon’s
    favor, when all inferences must be drawn in Gutierrez’s
    favor, see, e.g., Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 255 (1986).
    So what does this mean for purposes of our jurisdiction?
    In accordance with Johnson, this court has held that an
    appellant challenging a district court’s denial of qualified
    immunity effectively pleads himself out of court by
    interposing disputed factual issues in his argument. See
    Viilo v. Eyre, 
    547 F.3d 707
    , 712 (7th Cir. 2008); see also
    Jones v. Clark, 
    630 F.3d 677
    , 680 (7th Cir. 2011) (“In a
    collateral-order appeal . . ., where the defendants say
    that they accept the plaintiff’s version of the facts, we
    will take them at their word and consider their legal
    arguments in that light. If, however, we detect a back-door
    effort to contest the facts, we will reject it and dismiss
    the appeal for want of jurisdiction.”); cf. Ne. Rural
    Electric Membership Corp. v. Wabash Valley Power Ass’n,
    
    707 F.3d 883
    , 893 (7th Cir. 2013) (party asserting juris-
    diction has burden of establishing it). Even if the
    appellant disclaims any attempt to challenge the district
    court’s conclusion that genuine factual disputes exist,
    we lack jurisdiction when his argument on appeal
    depends upon and is inseparable from disputed facts.
    See White v. Gerardot, 
    509 F.3d 829
    , 835-36 (7th Cir. 2007);
    McKinney v. Duplain, 
    463 F.3d 679
    , 688-90 (7th Cir. 2006);
    Clash v. Beatty, 
    77 F.3d 1045
    , 1048 (7th Cir. 1996). This is
    so because one of the conditions for bringing an appeal
    under the collateral-order doctrine is that the appealed
    order must be separate from the merits of the case. See
    Johnson, 
    515 U.S. at 314
    ; Mitchell, 
    472 U.S. at 527-29
    ; Levan
    16                                           No. 12-2934
    v. George, 
    604 F.3d 366
    , 370 (7th Cir. 2010). Yet we also
    have acknowledged that the mere mention of disputed
    facts in an otherwise purely legal argument is not fatal,
    and we have held accordingly that jurisdiction exists
    where the appellant mentions factual disputes but the
    legal argument is not dependent on those factual
    disputes—i.e., where the legal and factual arguments
    are separable. See White, 
    509 F.3d at 836
     (“[T]he key
    inquiry is whether the appellant’s arguments neces-
    sarily 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 John-
    son.”); see also Sallenger, 
    473 F.3d at 738-39
     (appellate
    jurisdiction existed even where appellants raised
    factual issues toward the end of their brief).
    The present case falls close to the hazy line between
    appealable and nonappealable orders established by
    Johnson. Kermon undoubtedly relies on a disputed fact
    throughout his argument, yet he also relies on other,
    undisputed facts. It might be argued that we should
    simply ignore the disputed fact and consider whether
    the truly undisputed facts establish that Kermon is
    entitled to qualified immunity. After all, there is no
    question that jurisdiction would be proper if Kermon
    had brought this appeal claiming that he was entitled
    to qualified immunity based solely on those five undis-
    puted facts. But Kermon has based his argument on all
    six of the purportedly “undisputed” facts, claiming that
    all six of those facts considered together gave him
    arguable probable cause to arrest Gutierrez for public
    No. 12-2934                                                     17
    intoxication; he has not argued that if Gutierrez’s
    allegedly unsteady gait is indeed disputed he would
    nevertheless be entitled to qualified immunity.
    Moreover, it is evident that Kermon’s argument is
    entirely dependent on the disputed fact of Gutierrez’s
    allegedly unsteady gait because the five remaining facts,
    which the district judge found to be truly undisputed,
    come nowhere close to establishing arguable probable
    cause. At the time of Gutierrez’s arrest, Indiana Code
    section 7.1-5-1-3 provided that “[i]t is a Class B misde-
    meanor for a person to be in a public place or a place
    of public resort in a state of intoxication caused by the
    person’s use of alcohol or a controlled substance (as
    defined in IC 35-48-1-9).” Moore v. State, 
    949 N.E.2d 343
    ,
    344 (Ind. 2011), superseded by statute, 2012 Ind. Legis. Serv.
    P.L. 117-2012, § 1. “Intoxication” essentially means that
    a person is under the influence of alcohol and/or a con-
    trolled substance to the extent that his thoughts or
    actions are impaired or that he has lost normal control
    of his faculties. See 
    Ind. Code § 9-13-2-86
     2 ; Curtis v.
    2
    The public-intoxication statute does not define “state of
    intoxication,” but the Indiana Court of Appeals has borrowed
    the definition of intoxication from the operating-while-intoxi-
    cated statute, see Woodson v. State, 
    966 N.E.2d 135
    , 142 (Ind. Ct.
    App.), trans. denied, 
    969 N.E.2d 86
     (Ind. 2012); Fought v. State,
    
    898 N.E.2d 447
    , 451 (Ind. Ct. App. 2008), and we see no
    apparent reason to believe that the Indiana Supreme Court
    would disagree with this approach, see ADT Sec. Servs., Inc. v.
    Lisle-Woodridge Fire Prot. Dist., 
    672 F.3d 492
    , 498 (7th Cir. 2012)
    (continued...)
    18                                                  No. 12-2934
    State, 
    937 N.E.2d 868
    , 873-74 (Ind. Ct. App. 2010); see also
    Perkins v. State, 
    812 N.E.2d 836
    , 841 (Ind. Ct. App. 2004)
    (intoxication can be established by showing impair-
    ment). There is no litmus test for determining whether a
    person meets this definition, but common indicia of
    intoxication include “(1) the consumption of [a]
    significant amount of alcohol; (2) impaired attention
    and reflexes; (3) watery or bloodshot eyes; (4) the odor
    of alcohol on the breath; (5) unsteady balance; (6) failure
    of field sobriety tests; [and] (7) slurred speech.” Fought
    v. State, 
    898 N.E.2d 447
    , 451 (Ind. Ct. App. 2008) (citing
    Fields v. State, 
    888 N.E.2d 304
    , 307 (Ind. Ct. App. 2008)).
    These are merely indicia of impairment and not all of
    them need to be present for a person to be deemed im-
    paired (and thus intoxicated). See, e.g., Woodson, 966
    N.E.2d at 142 (sufficient evidence for conviction where
    defendant smelled of alcohol, had slurred speech, and
    was abrasive toward officers, even though he had no
    difficulty standing or walking).3
    2
    (...continued)
    (“In the absence of guiding decisions by the state’s highest
    court, we consult and follow the decisions of intermediate
    appellate courts unless there is a convincing reason to
    predict the state’s highest court would disagree.” (citing Fid.
    Union Trust Co. v. Field, 
    311 U.S. 169
    , 177-78 (1940))).
    3
    Of course, an arrest may be supported by probable cause that
    the arrestee committed any offense, regardless of which crime
    was charged or which crime the officer thought had been
    committed, Devenpeck v. Alford, 
    543 U.S. 146
    , 155 (2004); Abbott,
    (continued...)
    No. 12-2934                                                      19
    The five actually undisputed facts—namely, Gutierrez’s
    disheveled appearance, possession of a golf club, ap-
    parent agitation, lack of cooperation, and red eyes—do
    not individually or in the aggregate suggest that
    3
    (...continued)
    705 F.3d at 715, and so the existence of arguable probable
    cause to arrest for any offense is a sufficient basis for qualified
    immunity. But we discuss only public intoxication because
    that is the single potential offense that Kermon has identified
    either here or below in his qualified-immunity presentation.
    See Fox v. Hayes, 
    600 F.3d 819
    , 837-38 (7th Cir. 2010)
    (defendants waived their Devenpeck argument that they had
    probable cause to arrest for other crimes by failing to raise
    the issue until a reply brief to their motion for a new trial); cf.
    Jackson v. Parker, 
    627 F.3d 634
    , 640 (7th Cir. 2010) (declining
    to review § 1983 plaintiff’s unreasonable-detention theory
    because the only argument presented to the district court was
    his claim for false arrest, so neither the district court nor
    the defendants had a fair opportunity to address the
    unreasonable-detention theory); Luellen v. City of East Chicago,
    
    350 F.3d 604
    , 612 nn.4 & 5 (7th Cir. 2003) (arguments not
    raised on appeal are waived). Nor can we imagine any other
    criminal charge that Gutierrez’s reported (and undisputed)
    behavior could have supported. If there are such offenses,
    Kermon should have to suggest them to get the benefit of
    qualified immunity. We have repeatedly said that “[j]udges
    are not like pigs, hunting for truffles buried in briefs,” United
    States v. Dunkel, 
    927 F.2d 955
    , 956 (7th Cir. 1991) (per curiam), or
    in the record, see, e.g., Gross v. Town of Cicero, Ill., 
    619 F.3d 697
    , 702 (7th Cir. 2010), so it stands to reason that we will not
    go truffle hunting through all of the laws applicable in
    Indiana to identify an offense to fit Gutierrez’s conduct.
    20                                               No. 12-2934
    Gutierrez’s thoughts or actions were impaired or that
    he had lost normal control of his faculties. Cf. Hirsch v.
    Burke, 
    40 F.3d 900
    , 903 (7th Cir. 1994) (probable cause
    of intoxication where arrestee had trouble balancing
    himself and appeared incoherent, smelled of alcohol,
    had bloodshot eyes, and was unable to state his name
    or date of birth); United States v. Krzeminski, 
    878 F. Supp. 1189
    , 1196 (N.D. Ind. 1995) (probable cause of intoxica-
    tion where arrestee smelled of alcohol, inexplicably
    had gun sitting in his lap, and acted in an aggressive
    manner toward deputy, who had been informed that
    at least one occupant of the vehicle was highly intoxi-
    cated); Porter v. State, 
    391 N.E.2d 801
    , 807 (Ind. 1979)
    (probable cause of intoxication where arrestee smelled
    of alcohol; was unstable; had watery eyes and slurred
    speech; and was uncooperative and hostile toward offi-
    cers), disapproved on other grounds by Fleener v. State, 
    412 N.E.2d 778
     (Ind. 1980); Hampton v. State, 
    468 N.E.2d 1077
    , 1079-80 (Ind. Ct. App. 1984) (probable cause of
    intoxication where arrestee “appeared unstable on his
    feet, could not coherently answer the officers’ questions,
    and smelled of alcohol”). The only one of these facts
    commonly associated with intoxication is red eyes, but
    no reasonable officer could believe that the presence of
    red eyes without some form of motor or cognitive im-
    pairment is indicative of intoxication. Compare United
    States v. Tyler, 
    512 F.3d 405
    , 411 (7th Cir. 2008) (no reason-
    able suspicion of intoxication to stop defendant who
    was carrying open container of alcohol on suspicion
    of public intoxication because defendant “was not stum-
    bling, staggering, wavering, or otherwise unsteady on his
    No. 12-2934                                               21
    feet[; h]e was not incoherent when [the officers] ap-
    proached; his speech was not slurred[;] and his eyes
    were not bloodshot”), with United States v. Lenoir, 
    318 F.3d 725
    , 730 (7th Cir. 2003) (officer had reasonable
    suspicion of intoxication to stop defendant in high-
    crime area who was walking with an unsteady gait,
    carrying two firearms, fled after officer identified
    himself and ordered defendant to stop, and had
    trouble opening the door of the house into which he
    fled). If it were otherwise, then allergy sufferers and
    anyone who has recently wept, among others, could be
    arrested for public intoxication.
    Of course, certain behavior can be so extreme and
    dangerous that it can be inferred for purposes of
    probable cause that it resulted from alcohol or drug
    impairment, such as erratic driving leading to the loss of
    control of a vehicle and a serious crash, e.g., Smith v. Ball
    State Univ., 
    295 F.3d 763
     (7th Cir. 2002); Qian v. Kautz, 
    168 F.3d 949
     (7th Cir. 1999). This is true even if the basis of
    the impairment later proves to be something else. See
    Smith, 
    295 F.3d at 766-70
     (diabetic seizure); Qian, 
    168 F.3d at 951-54
     (subdural hematoma). But Kermon does
    not contend that Gutierrez’s observed behavior was of
    that extreme or dangerous nature.
    At most, the five truly undisputed facts in the
    aggregate rise to the level of reasonable suspicion to
    justify a Terry stop so that Officer Kermon could confirm
    or dispel his suspicions through some form of reasonable
    22                                                     No. 12-2934
    investigation.4 But reasonable suspicion is a lower
    standard than probable cause. See, e.g., United States v.
    4
    Though Kermon contends that his encounter with Gutierrez
    began as a Terry stop, it does not appear that he undertook
    any type of investigation or even asked Gutierrez any
    questions; indeed, when Gutierrez requested a breathalyzer
    test Kermon refused to administer one. The lack of any investi-
    gation would provide further support for the notion,
    discussed briefly in footnote 1, supra, that Kermon’s seizure
    of Gutierrez was not a Terry stop that evolved into an arrest
    but an arrest from the outset. See, e.g., United States v. White,
    
    648 F.2d 29
    , 34 (D.C. Cir. 1981) (explaining that “the
    questions, if any, asked” is a factor to consider in whether a
    seizure was a Terry stop or an arrest), discussed in United States
    v. Serna-Barreto, 
    842 F.2d 965
    , 967 (7th Cir. 1988); United States v.
    Barber, 
    557 F.2d 628
    , 632 (8th Cir. 1977) (holding that seizure
    was an arrest, not a Terry stop, because “[t]he officers’ purpose
    in going to the car was admittedly not investigatory; in fact,
    they asked no questions of the three occupants. Once [the
    first suspect] was secured in the back room of the liquor store,
    the officers proceeded directly to the car to arrest all three
    occupants.”). Additionally, Kermon’s failure to conduct any
    investigation may in and of itself constitute a violation of
    state law, see Pittman v. State, 
    971 N.E.2d 147
    , 150 (Ind. Ct. App.
    2012) (explaining that 
    Ind. Code § 12-23-15-2
     requires “an
    ‘evaluation’ for possible alternate causes (i.e., other than
    consumption of alcohol) for behavior that evinces intoxica-
    tion and for which the subject will otherwise be transported
    to jail”); though whether that is the case would have no
    bearing on whether Gutierrez’s clearly established fourth
    amendment rights were violated, cf. Virginia v. Moore, 
    553 U.S. 164
    , 168-76 (2008).
    No. 12-2934                                                  23
    Sokolow, 
    490 U.S. 1
    , 7-8 (1989). And no reasonable officer
    could have reasonably, even if mistakenly, believed that
    these circumstances added up to probable cause that
    Gutierrez was committing the crime of public intoxica-
    tion. The only way Kermon has a shot of prevailing on
    his qualified-immunity argument is if we accept his
    version of a disputed fact, because unlike the
    undisputed facts alone, adding to the equation the fact
    that a person cannot walk steadily may suggest impair-
    ment caused by the use of alcohol or controlled substances.
    It is thus clear that Officer Kermon’s entire argument
    is dependent upon a disputed fact. Our cases have
    given fair warning that an interlocutory appeal will be
    dismissed if the argument for qualified immunity is
    dependent upon disputed facts. See Jones v. Clark, 
    630 F.3d at 680
    ; Levan, 
    604 F.3d at 369-70
    ; Viilo, 
    547 F.3d at 712
    ; White, 
    509 F.3d at 835-37
    ; Via, 
    469 F.3d at 624-25
    ;
    McKinney, 
    463 F.3d at 688-90
    ; accord McKenna v. City
    of Royal Oak, 
    469 F.3d 559
    , 561-62 (6th Cir. 2006). Rather
    than accept the district court’s factual assumptions,
    Kermon has simply ignored or denied that a factual
    dispute exists and built his argument for qualified im-
    munity on that disputed fact. See Viilo, 
    547 F.3d at 712
    (“In denying rather than embracing the facts the district
    court held to be sufficiently well-supported to create
    jury issues, the defendants have pleaded themselves out
    of court.”); White, 
    509 F.3d at 836-37
     (no jurisdic-
    tion where appellant’s “legal arguments [were] wholly
    dependent upon, and inseparable from, his reliance
    on disputed facts”). This is in stark contrast to cases
    like Jones v. Clark, 
    630 F.3d at 681
    , and Sallenger, 
    473 F.3d at
    24                                             No. 12-2934
    738-39, where we found jurisdiction to exist after the
    appellants unambiguously conceded in their briefs and
    at oral argument that they were proceeding on the facts
    assumed by the district court, even though factual
    disputes had crept into their respective appeals.
    III
    Here, the district court found that the issue of whether
    Gutierrez was swaying or walking with an unsteady gait
    is a genuine factual dispute in need of a jury’s attention.
    Officer Kermon’s unabashed reliance on that disputed
    fact in support of his plea for qualified immunity de-
    prives us of jurisdiction over this interlocutory ap-
    peal. We therefore D ISMISS this appeal for want
    of jurisdiction.
    7-12-13
    

Document Info

Docket Number: 12-2934

Citation Numbers: 722 F.3d 1003, 2013 WL 3481359, 2013 U.S. App. LEXIS 14101

Judges: Manion, Tinder, Lee

Filed Date: 7/12/2013

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (54)

scott-e-mckenna-v-city-of-royal-oak-a-municipal-corporation-officer-p , 469 F.3d 559 ( 2006 )

Perkins v. State , 2004 Ind. App. LEXIS 1470 ( 2004 )

United States v. Aida Serna-Barreto , 842 F.2d 965 ( 1988 )

Devenpeck v. Alford , 125 S. Ct. 588 ( 2004 )

Virginia v. Moore , 128 S. Ct. 1598 ( 2008 )

United States v. Sokolow , 109 S. Ct. 1581 ( 1989 )

Ortiz v. Jordan , 131 S. Ct. 884 ( 2011 )

timothy-mckinney-individually-and-as-personal-representative-of-the-estate , 463 F.3d 679 ( 2006 )

john-luellen-v-city-of-east-chicago-robert-a-pastrick-in-his-official , 350 F.3d 604 ( 2003 )

Pearson v. Callahan , 129 S. Ct. 808 ( 2009 )

marilyn-hirsch-as-the-administratrix-of-the-estate-of-stephen-a-hirsch-v , 40 F.3d 900 ( 1994 )

Behrens v. Pelletier , 116 S. Ct. 834 ( 1996 )

Florida v. Harris , 133 S. Ct. 1050 ( 2013 )

Fleming v. Livingston County, Ill. , 674 F.3d 874 ( 2012 )

Xing Qian v. James R. Kautz, as the Chief of Police of the ... , 168 F.3d 949 ( 1999 )

Hampton v. State , 1984 Ind. App. LEXIS 2981 ( 1984 )

Jones v. Clark , 630 F.3d 677 ( 2011 )

derek-a-smith-v-ball-state-univ-ball-state-univ-board-of-trustees , 295 F.3d 763 ( 2002 )

United States v. Orson G. White, United States of America v.... , 648 F.2d 29 ( 1981 )

rodney-winfield-v-gl-bass-kelvin-carlyle-anthony-clatterbuck-james-hicks , 106 F.3d 525 ( 1997 )

View All Authorities »