937 F.2d 338 (7th Cir. 1991), 90-1168, Elliott v. Thomas

Docket Nº90-1168, 90-2093 and 90-2146.
Citation937 F.2d 338
Party NameWilliam J. ELLIOTT, Plaintiff-Appellee, v. William THOMAS, et al., Defendants-Appellants. Barbara PROPST, Plaintiff-Appellee, v. Morton W. WEIR, et al., Defendants-Appellants.
Case DateJuly 15, 1991
CourtUnited States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 338

937 F.2d 338 (7th Cir. 1991)

William J. ELLIOTT, Plaintiff-Appellee,

v.

William THOMAS, et al., Defendants-Appellants.

Barbara PROPST, Plaintiff-Appellee,

v.

Morton W. WEIR, et al., Defendants-Appellants.

Nos. 90-1168, 90-2093 and 90-2146.

United States Court of Appeals, Seventh Circuit

July 15, 1991

Argued April 4, 1991.

Rehearing and Rehearing En Banc Denied

in Nos. 90-1168 and 90-2093

Sept. 4, 1991.

Page 339

[Copyrighted Material Omitted]

Page 340

Daniel Kelly, Walter C. Carlson, Sidley & Austin, Chicago, Ill., for William J. Elliott.

Judson H. Miner, Sharon M. Sullivan, Asst. Corporate Counsel, Kelly R. Welsh, Asst. Corporate Counsel, Bertina Lampkin, Ruth M. Moscovitch, Asst. Corporate Counsel, Appeals Div., Frederick S. Rhine, Asst. Corporate Counsel, Chicago, Ill., for William Thomas, Richard Cap, Robert J. Baker and Virgil Mikus.

Robert Kirchner, Lerner & Kirchner, Champaign, Ill., for Barbara Propst.

John W. Leskera, Dunham, Boman & Leskera, East St. Louis, Ill., for Donald L. Bitzer.

Arnold F. Blockman, Jerome P. Lyke, Hatch, Blockman, McPheters, Fehrenbacher & Lyke, Champaign, Ill., James C. Kearns, Bradford J. Peterson, Heyl, Royster, Voelker & Allen, Urbana, Ill., for Morton W. Weir, Judith S. Liebman and Robert M. Berdahl.

Michael M. Conway, Julie L. Gage, Hopkins & Sutter, Chicago, Ill., for Robert M. Berdahl.

Before EASTERBROOK and MANION, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

EASTERBROOK, Circuit Judge.

These cases present a common question of appellate jurisdiction: whether a court's refusal to grant summary judgment to a defendant who denies committing any wrong may be appealed immediately as a "collateral order" on the authority of Mitchell v. Forsyth, 472 U.S. 511, 524-29, 105 S.Ct. 2806, 2814-17, 86 L.Ed.2d 411 (1985). To state this question is to answer it. A defense of no wrongdoing is not collateral to the merits; it is the nub of the case. Accordingly, we dismiss two of the appeals. A third is within our jurisdiction, and we conclude that the defendants are entitled to qualified immunity as a matter of law.

William Elliott filed suit under 42 U.S.C. Sec. 1983 contending that the police beat him when they took him into custody. Elliott contends that the beating perforated his eardrum (leaving him with a partial loss of hearing) and broke several teeth. The defendants moved for summary judgment, submitting affidavits and medical records that, they contend, show that Elliott's injuries (if any) predated the arrest, and that he suffered no new hurt at their hands.

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The district court concluded that there is a genuine dispute about what happened to Elliott when he was arrested, and it set the case for trial. 1990 U.S.Dist. Lexis 711 (N.D.Ill.), 1990 WL 7125 (N.D.Ill.1990). The defendants have appealed.

Barbara Propst, formerly the Assistant Director of the Computer-based Education and Research Laboratory at the University of Illinois, sued under Sec. 1983 contending that her transfer to Assistant Dean in the College of Applied Life Sciences penalized her for speech that she believes protected by the first amendment. Propst reported to administrators of the University that Donald L. Bitzer, then Director of the Laboratory, had a conflict of interest because he was acquiring goods and services for the Laboratory through corporations in which he had an ownership interest. The University commissioned an audit, which interfered with normal activities of the Lab. The three officials responsible for Propst's transfer--Chancellor Morton W. Weir and Vice-Chancellors Judith S. Liebman and Robert M. Berdahl--contend that they acted to promote efficient operation in the Lab, impossible with the Director and his two chief aides (Barbara Propst and her husband Franklin, then Associate Director of the Lab) at each other's throats. Bitzer contends that he had nothing to do with the transfer--that he did not know of the Propsts' complaints, did not know why the University was running a detailed audit, and never asked higher-ups to do anything about the Propsts. The district court denied the defendants' motions for summary judgment, and all four have appealed.

I

The defense of qualified immunity articulated in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), and amplified in Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), gives public officials the benefit of legal doubts. An official who does not violate law "clearly established" at the time, 457 U.S. at 818, 102 S.Ct. at 2738, is entitled not only to prevail, but to prevail before trial. Qualified immunity, we know from Mitchell, establishes a right not to be tried. When rules of law clearly establish public officials' duty, the immunity defense is unavailable. So, too, the interlocutory appeal to vindicate the right not to be tried is unavailable when there is no legal uncertainty; there is no separate "right not to be tried" on the question whether the defendants did the deeds alleged; that is precisely the question for trial.

By sleight of hand you can turn any defense on the merits into a defense of qualified immunity. Consider this possibility for the police officers Elliott has sued: It was not "clearly established" in May 1986, when we arrested Elliott, that police officers could be liable for taking peaceable custody of a suspect; the district court proposes to hold a trial at which the only outcome favorable to plaintiff (given the uncontroverted evidence that Elliott suffered no injury) would be a holding that police are liable for making arrests that cause no injury; that would be a change of law, which we cannot be expected to forecast; therefore we are entitled to qualified immunity. The parenthetical expression carries the entire weight of this "argument": if you allow the possibility that the suspect will show injury at trial, then the defendants may be held liable under the law as it existed in 1986. So the claim to immediate appellate review collapses to the argument that the "right not to be tried" can be vindicated only if the court of appeals combs through the factual record. Yet that is miles away from the position of Harlow, Mitchell, and Anderson, which describe qualified immunity as a defense contingent on the state of the law.

To say that the question on appeal under Mitchell is the state of the law when the defendants acted is not to say that current law is irrelevant. Siegert v. Gilley, --- U.S. ----, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991), holds that a court of appeals may, sometimes must, answer the question whether it was clearly established on a given date that particular conduct violates the Constitution by replying: "Why, that is not established even today; if defendants did everything the plaintiffs alleged, still

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they did not violate the Constitution." Deciding just when it became "clearly established" that public officials could not do something that the Constitution allows them to do is silly. Our defendants do not say, however, that the Constitution today allows police to beat suspects, or allows university administrators to discriminate against business officials on account of speech.

Facts too play a role in Mitchell appeals. It is impossible to know which "clearly established" rules of law to consult unless you know what is going on. Auriemma v. Rice, 910 F.2d 1449, 1455 (7th Cir.1990) (in banc). Bonitz v. Fair, 804 F.2d 164 (1st Cir.1986), went overboard in holding that the court of appeals must look exclusively to the allegations of the complaint, so that it will not be tainted by the facts in assessing "clearly established" law. Unwin v. Campbell, 863 F.2d 124, 130-33 (1st Cir.1988), overrules Bonitz and holds that the court of appeals may consult the full record--viewed, as Fed.R.Civ.P. 56 requires, in the light most favorable to the party opposing the motion for summary judgment. Green v. Carlson, 826 F.2d 647 (7th Cir.1987), puts us on the side of Unwin, as is every other court of appeals. The fifth circuit flirted with Bonitz in Jefferson v. Ysleta Independent School District, 817 F.2d 303, 305 (5th Cir.1987), but retreated in Geter v. Fortenberry, 849 F.2d 1550, 1559-60 (5th Cir.1988). For a smattering of other cases see Brown v. Grabowski, 922 F.2d 1097, 1110-11 (3d Cir.1990); Turner v. Dammon, 848 F.2d 440, 444 (4th Cir.1988); Poe v. Haydon, 853 F.2d 418, 425 (6th Cir.1988); DeVargas v. Mason & Hanger-Silas Mason Co., 844 F.2d 714, 719 (10th Cir.1988).

Yet the reason a court of appeals examines the facts is to determine whether it was "clearly established" at the time that such deeds were forbidden. Anderson, 483 U.S. at 641, 107 S.Ct. at 3039. It would extend Mitchell well beyond its rationale to accept an appeal containing nothing but a factual issue. We have expressed concern that being too ready to entertain interlocutory appeals on immunity grounds would increase the expense plaintiffs must bear, and the delay they must endure, to vindicate their rights. Abel v. Miller, 904 F.2d 394, 396 (7th Cir.1990); Apostol v. Gallion, 870 F.2d 1335, 1338 (7th Cir.1989). If a general defense on the merits supports interlocutory appeal, then every public defendant is entitled to pretrial appellate decision. Mitchell did not create a general exception to the finality doctrine for public employees. Every court that has addressed the question expressly has held that Mitchell does not authorize an appeal to argue "we didn't do it". Kaminsky v. Rosenblum, 929 F.2d 922 (2d Cir.1991); Ryan v. Burlington County, 860 F.2d 1199, 1203 & n. 8 (3d Cir.1988); Lion Boulos v. Wilson, 834 F.2d 504, 509 (5th Cir.1987); Velasquez v. Senko, 813 F.2d 1509, 1511 (9th Cir.1987). We join them.

Bitzer does not contend that he acted in the shadow of legal uncertainty. He submits, rather, that he did not know about and had nothing to do with the events of...

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