Gutierrez v. Kermon

Decision Date12 July 2013
Docket NumberNo. 12–2934.,12–2934.
Citation722 F.3d 1003
PartiesMiguel GUTIERREZ, Plaintiff–Appellee, v. Michael R. KERMON, Defendant–Appellant.
CourtU.S. Court of Appeals — Seventh Circuit


Richard A. Waples (argued), Waples & Hanger, Indianapolis, IN, for PlaintiffAppellee.

Travis E. Shields (argued), Alexander P. Will, Office of the Corporation Counsel, Indianapolis, IN, for DefendantAppellant.

Before MANION and TINDER, Circuit Judges, and LEE, District Judge. *

TINDER, Circuit Judge.

Miguel Gutierrez brought this action under 42 U.S.C. § 1983 against Indianapolis Metropolitan Police Officer Michael R. Kermon (and others not involved in this appeal), alleging, among other things, that 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 detention but that genuine issues of material fact precluded a finding of qualified immunity on the issue of probable cause. Officer Kermon brought this interlocutory 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.


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 narratives 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 as Kermon approached to ask him a question, and then actively resisted being placed in handcuffs. Notwithstanding 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 responded 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 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 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 commands, 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 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 supplemental state-law claims. As relevant here, Gutierrez alleged that Officer Kermon violated the Fourth Amendment by seizing him without reasonable suspicion in violation of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (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 immunity. 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 been dispatched. 1Id. at 993–94. Officer Kermon argued that he also had probable cause to arrest for public intoxication because, at the time of the arrest, he had observed that Gutierrez had red eyes, had a disheveled appearance, and was swaying and having trouble maintaining 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 disputes 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 protection claim.)


The Fourth Amendment prohibits unreasonable seizures. 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, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), and so the 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...

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