Jones v. Johnson, 93-3777
| Citation | 26 F.3d 727 |
| Decision Date | 14 June 1994 |
| Docket Number | No. 93-3777,93-3777 |
| Parties | Houston JONES, Plaintiff-Appellee, v. Tyson JOHNSON, et al., Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Edward G. Proctor, Jr. (argued), Sandman, Levy & Petrich, Chicago, IL, for plaintiff-appellee.
Richard T. Ryan, Mark F. Smolens (argued), Flynn, Murphy & Ryan, Chicago, IL, for defendants-appellants.
Before ESCHBACH, EASTERBROOK, and KANNE, Circuit Judges.
Defendants have filed an interlocutory appeal to assert the defense of official immunity.
Although Mitchell v. Forsyth, 472 U.S. 511, 524-29, 105 S.Ct. 2806, 2814-17, 86 L.Ed.2d 411 (1985), permits immunity appeals under the collateral order doctrine, we held in Elliott v. Thomas, 937 F.2d 338 (7th Cir.1991), that defendants may urge only legal issues on such appeals. Accord, Crawford-El v. Britton, 951 F.2d 1314, 1317 (D.C.Cir.1991); see also Meyer v. Robinson, 992 F.2d 734, 737-38 (7th Cir.1993). A cry of "we didn't do it" does not present any distinctly legal issue or seek protection from legal uncertainty, the genesis of doctrines of official immunity.
To see that appellants are contending that they did not commit the acts of which plaintiff accuses them, one need not get beyond the first argument heading in their brief:
WHERE NOT A SCINTILLA OF EVIDENCE EXISTS THAT ONE OR MORE OF THE DEFENDANTS, JOHNSON, DEEVEY OR PAYNE, EVER STRUCK, PUNCHED OR KICKED THE PLAINTIFF, OR EVER OBSERVED ANYONE DOING SO--EITHER IN THE PARKING LOT OR IN THE POLICE STATION--SAID DEFENDANTS ARE ENTITLED TO A SUMMARY JUDGMENT ON THE PLAINTIFF'S "EXCESSIVE FORCE" CLAIMS
Defendants do not deny that if they beat the plaintiff, as he believes they did, then they lack immunity. Whether they beat the plaintiff is a question that must be resolved in the district court before it may be reviewed on appeal. When asked at oral argument if they could lose the factual dispute and still prevail, defendants' lawyer answered no. In consequence, we lack appellate jurisdiction over the contention that the defendants did not commit or abet battery.
The excessive force claim must be distinguished from the plaintiff's argument that the defendants lacked probable cause to arrest him. It is undisputed that an officer found plaintiff, apparently intoxicated, hitting his head against a building, and took him into custody. These facts imply disorderly conduct, which supports an arrest. Plaintiff contends that he was not drunk but was suffering from an insulin reaction, and that the police should have figured this out. The magistrate judge, presiding by consent under 28 U.S.C. Sec. 636(c), concluded that plaintiff had not adduced sufficient evidence to dispute the officers' version of the arrest--which, if accepted, entitles them to immunity if not to prevail outright. Hunter v. Bryant, --- U.S. ----, ----, 112 S.Ct. 534, 537, 116 L.Ed.2d 589 (1991); Mahoney v. Kesery, 976 F.2d 1054, 1057-59 (7th Cir.1992). But the judge concluded that because the excessive force claim had to be tried, and because the plaintiff might come up with more evidence before trial, the false arrest claim also should be tried.
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