White, Arlinthia v. Gerardot, Mark

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1418
ARLINTHIA WHITE, Individually
and as Personal Representative
of the Estate of Derrick Ford,
Deceased,
Plaintiff-Appellee,
v.
MARK GERARDOT, in his Individual
Capacity,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 05 C 382—Roger B. Cosbey, Magistrate Judge.
____________
ARGUED SEPTEMBER 27, 2007—DECIDED DECEMBER 5, 2007
____________
Before BAUER, RIPPLE and KANNE, Circuit Judges.
RIPPLE, Circuit Judge. Arlinthia White, individually
and as personal representative of the Estate of Derrick
Ford, filed this action under 42 U.S.C. § 1983. Ms. White
alleges that Mark Gerardot, a Fort Wayne, Indiana
police officer, violated Ford’s Fourth and Fourteenth
Amendment rights when he used excessive force to seize
2 No. 07-1418
Ford. The district court1 denied Detective Gerardot’s
motion for summary judgment based on qualified immu-
nity. Detective Gerardot then appealed this denial under
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). For the rea-
sons set forth in this opinion, we dismiss the appeal for
lack of jurisdiction.
I
BACKGROUND
A.
On the night of January 10, 2004, Derrick Ford and his
friends, Dana L. Jones, Sr., Kevin D. Tinsley, Javon Thomas
and Patrick C. Myers, were standing outside the Veterans
of Foreign Wars (“VFW”) located on Winter Street in Fort
Wayne, Indiana. Ford and his companions were wearing
similar dark jackets. Jones, Tinsley and Thomas state
that, around 2:30 a.m., they heard gunshots from the west
side of Winter Street, where a group of people were
gathered. Two individuals, unrelated to Ford and his
friends, had been involved in a verbal altercation and one
had shot the other. Upon hearing the gunshots, Ford,
Jones, Tinsley and Thomas decided to leave the VFW. The
four men headed toward the green Ford Taurus that Jones
had driven to the VFW. Jones and Tinsley state that
Detective Gerardot ran past the group of people gathered
on Winter Street and instead followed the men as they
1
The district court had jurisdiction under 28 U.S.C. § 1331. The
parties consented to adjudication by a magistrate judge. See 28
U.S.C. § 636(c); Fed. R. Civ. P. 73(b).
No. 07-1418 3
proceeded toward the Taurus.2
As he was unlocking the driver’s side door of his car,
Jones heard someone command, “Freeze!” Two other
affiants also heard “freeze.” Jones observed that Ford,
whose right hand had been on the front passenger door
handle, let go of the handle and turned around with
his hands in the air. Jones’ affidavit further states that, as
Ford was turning with his hands in the air,3 Detective
Gerardot shot him. Ford dropped to his knees; Detective
Gerardot shot Ford several more times. No gun was
recovered from Ford. Myers states that the people who
had been watching these events walked away after the
shooting.
Detective Gerardot presents a different version of the
events. He was dispatched to the VFW because of a re-
2
According to Tinsley’s affidavit, the men had encountered
Detective Gerardot before: “When my friends and I, including
Derrick Ford, would be at Chapel Oaks, Officer Gerardot
would mess with us all the time, pulling our pants and leering
at us, harassing us. That also happened to Derrick Ford.”
Detective Gerardot moved to strike this paragraph; the dis-
trict court denied his motion.
3
Ms. White also submitted to the district court an affidavit
from Dr. Werner U. Spitz. Dr. Spitz’s affidavit states that
Ford’s wounds are consistent with his left arm being raised and
that the wounds do not indicate that Ford was holding any-
thing in his hands. In his motion for summary judgment,
Detective Gerardot moved to strike Dr. Spitz’s affidavit as
inadmissible under Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993). The district court determined Detective
Gerardot’s motion to be moot because the court did not rely
on Dr. Spitz’s affidavit in denying summary judgment to
Detective Gerardot.
4 No. 07-1418
ported gang fight. Detective Gerardot parked his un-
marked police car near the VFW and observed the situa-
tion with binoculars. He saw three individuals exit the
VFW and walk toward a parked car. Detective Gerardot
states that he observed two of the individuals leaning
into the car; the men appeared to be retrieving some-
thing from inside the car. It is unclear, however, who
the men were, what they were retrieving and what the
make and color of the car was. Detective Gerardot then
saw two of the individuals run across the street.
Detective Gerardot states that he drove his car toward
the VFW, where he saw a crowd of about one hundred
people gathered. A fight broke out, Detective Gerardot
states, and people were pushed around. He heard yelling
and then observed a black male, wearing dark clothes
with a hood, holding a semi-automatic handgun with his
right hand above his head.4 Detective Gerardot states that
the individual (the “shooter”) fired shots into the crowd
and again continued to hold the weapon above his head.
Detective Gerardot exited his car; he claims that people
in the crowd were trapped. The shooter again fired shots
into the crowd. Detective Gerardot states that he yelled,
“Police, everybody get down.” He then started chasing
the shooter, who fled. Detective Gerardot states that, as
he ran by the crowd, he heard more gun shots coming
from the west side of Winter Street. He also heard some-
4
Ms. White points to numerous inconsistencies in Detective
Gerardot’s account among the various statements that he has
given in connection with this case. On this point, Ms. White
notes that Detective Gerardot’s deposition states that he
only observed a partial profile of the individual for a few
seconds.
No. 07-1418 5
one yell, “He’s shot, he’s shot.” Ford, the individual
who Detective Gerardot believed to be the shooter, and
another person ran up to a green Ford Taurus.
According to Detective Gerardot, Ford was facing the
passenger side of the car; Detective Gerardot was behind
him at an angle; Jones was at the driver’s side door facing
both Ford and Detective Gerardot. Detective Gerardot
claims that he believed that Ford had a gun in front of his
body. Detective Gerardot states that he yelled “police”
several times and ordered the two men to “show me
your hands.” Jones put his hands above his head and
said, “I don’t have a gun.” Detective Gerardot states that
Ford was slightly hunched over and that his hands were
concealed. He saw Ford’s elbows moving and claims
that he thought that Ford was reloading his gun or
fixing a jam. Detective Gerardot states that Ford looked
back at him over his left shoulder, made eye contact and
appeared to check Detective Gerardot’s position. Then,
Detective Gerardot claims that he saw Ford start turning
toward him with his hands near his mid-section. Detective
Gerardot asserts that he saw something in Ford’s hands. He
then shot Ford. Detective Gerardot recounts that a group of
people rushed toward Ford, laying on him and pulling on
his hands, arms and coat.
B.
Detective Gerardot moved for summary judgment on two
grounds. He submitted that he did not use excessive force
when he shot Ford because Ford’s behavior prior to the
shooting would have caused a reasonable officer to believe
that Ford presented an imminent danger of death or
serious bodily harm to Detective Gerardot or others. For
6 No. 07-1418
the same reason, Detective Gerardot also submitted that he
was entitled to qualified immunity. After setting forth the
facts in the light most favorable to Ms. White, the district
court rejected both claims.
On the issue of excessive force, the district court deter-
mined that Ms. White had carried her burden of proving
that there were genuine issues of material fact for trial.
“White’s evidence indicates that, contrary to Gerardot’s
allegations, Ford did not disobey Gerardot’s commands
and did not have a gun in his hands when Gerardot shot
him. Instead, upon hearing Gerardot’s command to
‘freeze,’ Ford turned to face Gerardot with his hands in the
air, at which time Gerardot shot Ford.” R.69 at 13. The
court thus determined that a reasonable jury could con-
clude that Detective Gerardot’s actions were not objectively
reasonable and, accordingly, that he had violated Ford’s
Fourth and Fourteenth Amendment rights by using
excessive force.
On the issue of qualified immunity, the district court
ruled that summary judgment could not be granted on the
first prong of the qualified immunity test because, ac-
cepting Ms. White’s factual allegations as true, Detective
Gerardot had violated Ford’s Fourth and Fourteenth
Amendment rights by using excessive force. On the
second prong, the district court determined that “factual
disputes between the parties preclude a finding that
Gerardot is entitled to immunity as a matter of law.” Id. at
16. The court explained that, “accepting White’s facts as
true, it is obvious that no reasonable officer would be-
lieve that it is lawful to shoot an unarmed suspect who
is surrendering to the police with his hands in the air.” Id.
No. 07-1418 7
II
DISCUSSION
Our discussion begins with jurisdiction. A district
court’s denial of summary judgment typically is an
“unappealable interlocutory order.” Matterhorn, Inc. v. NCR
Corp., 727 F.2d 629, 633 (7th Cir. 1984); see also Whitford v.
Boglino, 63 F.3d 527, 531 (7th Cir. 1995). An exception to this
general rule exists for a district court’s denial of qualified
immunity on summary judgment. See Mitchell v. Forsyth,
472 U.S. 511, 530 (1985). See generally Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541, 546-47 (1949) (setting forth
the test for determining which orders are appealable
“final” orders).
It is well established, of course, that a denial of qualified
immunity is only appealable “to the extent that it turns
on an issue of law.” Mitchell, 472 U.S. at 530. The Supreme
Court of the United States has held that a defendant who
is “entitled to invoke a qualified immunity defense[] may
not appeal a district court’s summary judgment order
insofar as that order determines whether or not the
pretrial record sets forth a ‘genuine’ issue of fact for trial.”
Johnson v. Jones, 515 U.S. 304, 319-20 (1995). In reviewing a
denial of qualified immunity, this court neither may “make
conclusions about which facts the parties ultimately
might be able to establish at trial” nor may “reconsider
the district court’s determination that certain genuine
issues of fact exist.” Leaf v. Shelnutt, 400 F.3d 1070, 1078 (7th
Cir. 2005). Our review is confined to “abstract issues of
law,” Johnson, 515 U.S. at 317, those issues which do not
“depend on the outcome of a disputed factual question,”
Leaf, 400 F.3d at 1078. In sum, this court’s “jurisdiction
extends to interlocutory appeals . . . challenging a dis-
trict court’s determination that a set of facts demonstrate
8 No. 07-1418
a violation of ‘clearly established’ constitutional law and
preclude the defendants from proffering a qualified
immunity defense.” Borello v. Allison, 446 F.3d 742, 747
(7th Cir. 2006) (internal quotation marks and citation
omitted).
Given these principles, the boundaries of our jurisdic-
tion are clear in the typical qualified immunity appeal.
We have jurisdiction when the party seeking to invoke it
makes a purely legal argument that does not depend on
disputed facts. See, e.g., Knox v. Smith, 342 F.3d 651, 657 (7th
Cir. 2003). Several sources of undisputed facts may frame
our review of this purely legal question. We may “take,
as given, the facts that the district court assumed when it
denied summary judgment.” Washington v. Haupert, 481
F.3d 543, 549 n.2 (7th Cir. 2007) (quoting Johnson, 515 U.S.
at 317); McKinney v. Duplain, 463 F.3d 679, 688 (7th Cir.
2006); Leaf, 400 F.3d at 1078-79. We also may conduct our
review by “accepting the plaintiff’s version of the facts.”5
5
In addition, we have noted that, in certain circumstances, it
is appropriate for this court to look at all the undisputed evid-
ence in the record, even if the district court did not consider
this evidence in its summary judgment ruling. See Washington v.
Haupert, 481 F.3d 543, 549 & n.2 (7th Cir. 2007). Several of our
sister circuits have reached the same conclusion. See, e.g.,
Lockridge v. Bd. of Trs. of Univ. of Ark., 315 F.3d 1005, 1008 (8th
Cir. 2003) (looking into the record for facts that the district
court “likely assumed”); Winfield v. Bass, 106 F.3d 525, 534-35
(4th Cir. 1997) (“[A] question of the proper factual basis for
our resolution of the purely legal question over which we
possess jurisdiction may arise when a district court bases its
decision on stated facts, but other, undisputed, material facts
are present that dictate the conclusion that a governmental
(continued...)
No. 07-1418 9
See Knox, 342 F.3d at 656-57; see also Freeman v. Gore, 483
F.3d 404, 410 (5th Cir. 2007) (holding that, in reviewing
a denial of qualified immunity, “the court assumes that
5
(...continued)
official is entitled to qualified immunity. . . . [T]his court . . .
should not ignore other, undisputed, facts in rendering our
decision on the legal question.”); Dolihite v. Maughon, 74 F.3d
1027, 1035 n.2 (11th Cir. 1996) (noting that it had looked to the
record to identify “more precise” facts than those set forth by
the district court).
In Washington, we were presented with a situation in which
the plaintiff presented an account of “ ’undisputed facts,’
which differ[ed] from that relied on by the district court.”
Washington, 481 F.3d at 549. The district court had not con-
sidered two photographs that the plaintiff alleged were rele-
vant to the qualified immunity issue. We held that this court
“is not required to accept the facts as described by the dis-
trict court, although in most instances it is appropriate to do
so.” Id. at 549 n.2. We further held that “where the appellants are
not asking the court to resolve factual disputes or determine
whether the evidence is sufficient, it is appropriate for this
court to look beyond the factual account of the district court
to all undisputed evidence.” Id.In this case, Detective Gerardot, relying on our holding
in Washington, explicitly states that in seeking appellate re-
view he is not asking us to resolve factual disputes; rather, he
states that he is asking us to consider all of the undisputed
evidence in the record. This case is different from Washington,
however, because the facts that Detective Gerardot claims are
undisputed are disputed. Indeed, Detective Gerardot simply
has taken his version of the facts and labeled them “undis-
puted.” Similarly, throughout many of his legal arguments,
Detective Gerardot refers to the “undisputed” facts, but again
these merely are his version of disputed facts.
10 No. 07-1418
the plaintiff’s factual assertions are true and determines
whether those facts are sufficient to defeat defendant’s”
assertion of qualified immunity); Livermore v. Lubelan, 476
F.3d 397, 403 (6th Cir. 2007); Skehan v. Vill. of Mamaroneck,
465 F.3d 96, 104-05 (2d Cir. 2006).6
This case does not fall into one of the two situations
that we have described as supporting our interlocutory
jurisdiction. In his brief, Detective Gerardot asserts that he
is not asking this court to resolve factual disputes. Never-
theless, he fails to base his legal arguments either on the
facts that the district court assumed in denying him
qualified immunity or on the facts alleged by Ms. White.
Indeed, all of Detective Gerardot’s legal arguments are
premised on his version of the facts. As we have already
noted, the district court determined that Detective
Gerardot’s version of the facts genuinely were disputed.
Detective Gerardot claims that he is entitled to qualified
immunity because his use of deadly force did not vio-
late Ford’s constitutional rights and, in any event, those
rights were not clearly established at the time of the
6
In contrast, we do not have jurisdiction where the appellant’s
sole argument is that the evidence presented by the plaintiff
was insufficient to create a genuine issue of material fact. See,
e.g., McKinney v. Duplain, 463 F.3d 679, 690 (7th Cir. 2006)
(holding that we lack jurisdiction where appellant “maintains
that the record does not support the district court’s conclusion
that a genuine issue of fact exists”); Via v. LaGrand, 469 F.3d 618,
621-23 (7th Cir. 2006); see also Johnson, 515 U.S. at 319-20. Where
the appellant only makes a sufficiency of the evidence argument,
the appeal does not present “abstract issues of law,” and
therefore we do not have jurisdiction under the Supreme
Court’s holding in Johnson.
No. 07-1418 11
shooting. See Saucier v. Katz, 533 U.S. 194, 201 (2001) (setting
out the two-part test for qualified immunity). In making
these arguments, however, Detective Gerardot relies on
disputed facts. For example, he asserts that Ford was the
shooter whom he had seen fire a gun into the crowd, that
Ford disobeyed his commands to raise his hands and that,
while he was shouting these commands, Ford kept both of
his hands in front of his body near his waist. Detective
Gerardot further asserts that Ford was moving his hands in
front of him as if he were reloading his gun or fixing a jam.
When Ford turned around, Detective Gerardot claims that
he saw a gun in Ford’s hands and that he believed Ford
was about to shoot him. Under these circumstances,
Detective Gerardot claims that he “feared for his own life.”
Throughout his brief, Detective Gerardot repeatedly recites
these facts. Moreover, in conjunction with these facts, he
relies on a plethora of cases purporting to stand for the
proposition that a police officer’s use of deadly force is
reasonable for Fourth Amendment purposes where the
officer believes that he or a third party is in imminent
danger of death or serious bodily injury.
Both the adjudicative facts offered by the Detective and
his characterization of those facts are in conflict with the
account offered by Ms. White. As the district court recog-
nized, “[Ms.] White’s evidence indicates that, contrary to
Gerardot’s allegations, Ford did not disobey Gerardot’s
commands and did not have a gun in his hands when
Gerardot shot him. Instead, upon hearing Gerardot’s
command to ‘freeze,’ Ford turned to face Gerardot with
his hands in the air, at which time Gerardot shot Ford.”
R.69 at 13. Ms. White also disputes the reasonableness of
Detective Gerardot’s belief that Ford was the individual
who shot a gun into the crowd, given that it was dark, that
12 No. 07-1418
many individuals were wearing similar clothing and
that Detective Gerardot only had a brief look at the in-
dividual who fired into the crowd. Detective Gerardot
advances no legal arguments purporting to show that he
is entitled to qualified immunity based upon the facts
tendered by Ms. White and properly assumed by the
district court in denying him qualified immunity on
summary judgment.
Our decisions, as well as those of our sister circuits,
demonstrate that we do not have jurisdiction when, as
here, all of the arguments made by the party seeking to
invoke our jurisdiction are dependent upon, and insepara-
ble from, disputed facts. McKenna v. City of Royal Oak,
469 F.3d 559, 562 (6th Cir. 2006); Sallenger v. Oakes, 473 F.3d
731, 738 (7th Cir. 2006); cf. McKinney v. Duplain, 463 F.3d
679, 688 (7th Cir. 2006); Via v. LaGrand, 469 F.3d 618, 623
n.2 (7th Cir. 2006).
Our colleagues on the Court of Appeals for the Sixth
Circuit reached the same conclusion in a remarkably
similar case. In McKenna, the plaintiff brought suit against
several police officers claiming that the officers had used
excessive force against him. The district court determined
that genuine issues of material fact precluded summary
judgment on the ground of qualified immunity. In the
ensuing appeal, the police officers asserted that they
were raising “only the legal issue of whether the facts set
forth by [McKenna] constituted a violation of clearly
established law.” McKenna, 469 F.3d at 561. Notwithstand-
ing this assertion, the Sixth Circuit explained that, just as
is the case here, “all three arguments advanced by the
officers on the issue of qualified immunity in fact rely on
their own disputed version of the facts, not the facts as alleged
by McKenna.” Id. (emphasis supplied). The court deter-
No. 07-1418 13
mined that “no legal argument for qualified immunity . . .
can be extracted from [the officers’] reliance on disputed
facts.” Id. at 562 n.2. Under these circumstances, the
court concluded:
It may be that purely legal arguments for granting
qualified immunity relying on the facts taken in the
light most favorable to McKenna could have been
advanced in this case. However, because genuine
issues of material fact regarding the officers’ qualified
immunity claim do exist, and because the officers have
in fact made no arguments concerning the denial of
qualified immunity that do not rely on disputed facts
this court does not have jurisdiction over this part of
their appeal.
Id. at 562; cf. Atteberry v. Nocona Gen. Hosp., 430 F.3d 245,
252 (5th Cir. 2005) (noting that jurisdiction does not exist
where the “appellant [does] not raise sufficient legal
issues separable from the facts or the ultimate merits of
the case”).
Our decision in Sallenger is consistent with this conclu-
sion. In that case, we noted that “[t]oward the end of
their opening brief, the defendants question a number of
facts [assumed] by the district court.” Sallenger, 473 F.3d
at 738. Several considerations undergirded our holding
that jurisdiction existed to reach the merits in Sallenger.
We emphasized that the appellants had stated ex-
plicitly, both in their brief and at oral argument, that they
were not asking the court to revisit facts found by the
district court and that we could address their arguments
without revisiting those facts. Id. Additionally, the appel-
lants in Sallenger raised legal issues that were separate
from their impermissible questioning of the disputed facts
(which only occurred toward the end of their opening
14 No. 07-1418
brief). Id. at 738. Thus, Sallenger is consistent with our
holdings that we only have jurisdiction to consider purely
legal arguments that do not depend on disputed facts. Cf.
LaGrand, 469 F.3d at 623 n.2 (“[I]f the defendant argues
on appeal that he is entitled to qualified immunity no
matter how the genuine issue of material fact is resolved,
we would have jurisdiction to consider that purely
legal question.” (emphasis supplied)).
Sallenger and McKenna thus counsel that, where the
appellant’s arguments rely on disputed facts, this court
has jurisdiction only if the legal arguments for qualified
immunity do not depend on, or are separable from, dis-
puted facts. Of course, this does not mean that the mere
mention of disputed facts in an otherwise purely legal
argument extinguishes our jurisdiction. See, e.g., Sallenger,
473 F.3d at 738-39 (concluding that there was jurisdic-
tion because there were purely legal issues to resolve
despite the mention of some disputed facts); Atteberry,
430 F.3d at 252 (noting that “[u]navoidable references to
the underlying facts of a case do not spoil our jurisdic-
tion over a properly composed interlocutory appeal”).
Rather, the key inquiry is whether the appellant’s argu-
ments necessarily depend upon disputed facts. If an
argument is not dependent upon disputed facts, the
court simply can disregard mention of the disputed facts
and address the abstract issue of law without running
afoul of Johnson.
Here, Detective Gerardot’s only argument on appeal is
that a reasonable officer in his shoes would not have
known that using deadly force against Ford was unconsti-
tutional because he believed that Ford had just fired
shots into a large crowd, that Ford was concealing a
weapon in front of his body and that Ford was going to
No. 07-1418 15
shoot him when he turned around with his hands at waist
level. Because there is an issue of material fact as to
whether Ford was surrendering with his hands in the
air, Detective Gerardot’s argument necessarily depends
on his version of the facts. Indeed, Detective Gerardot
would be hard pressed to develop any purely legal argu-
ment for why he is entitled to qualified immunity if
Ford had his hands in the air and was surrendering, as
alleged by Ms. White and as assumed by the district court.7
Detective Gerardot’s legal arguments are wholly depend-
ent upon, and inseparable from, his reliance on disputed
facts and therefore we conclude that we do not have
jurisdiction to consider his appeal.
Conclusion
The district court denied Detective Gerardot’s motion for
summary judgment because there were genuine issues of
material fact as to whether Ford was a threat to Detective
7
Apparently recognizing this, Detective Gerardot, toward the
end of his brief, relies on Anderson v. Russell for the proposition
that “minor discrepancies in testimony do not create a mate-
rial issue of fact in an excessive force claim, particularly when,
as here, the witness views the events from a worse vantage
point than that of the officers.” Anderson, 247 F.3d 125, 131 (4th
Cir. 2001). Detective Gerardot relies on Anderson to argue that
Jones’ testimony that Ford had his hands in the air is insufficient
to create a genuine issue of material fact. Of course, this is an
argument about the sufficiency of the evidence, which is
exactly what we are precluded from reviewing on an appeal
of a denial of qualified immunity. Anderson itself was not
decided on appeal from summary judgment—it was an appeal
from a judgment entered after a jury trial. See id. at 128.
16 No. 07-1418
Gerardot. Because Detective Gerardot has not raised any
legal arguments based upon the facts that the district court
assumed in denying him qualified immunity or on the facts
alleged by Ms. White, we lack jurisdiction under the
Supreme Court’s holding in Johnson to review the district
court’s decision. Accordingly, we dismiss the appeal for
lack of jurisdiction.
APPEAL DISMISSED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-5-07