Smith v. Finkley, 20-1754

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBrennan, Circuit Judge.
Citation10 F.4th 725
Parties Jerry SMITH, Jr., Plaintiff-Appellee, v. Melvin FINKLEY and Adam Stahl, Defendants-Appellants.
Docket NumberNo. 20-1754,20-1754
Decision Date18 August 2021

10 F.4th 725

Jerry SMITH, Jr., Plaintiff-Appellee,
Melvin FINKLEY and Adam Stahl, Defendants-Appellants.

No. 20-1754

United States Court of Appeals, Seventh Circuit.

Argued December 7, 2020
Decided August 18, 2021

Walter W. Stern, III, Attorney, Walter W. Stern, Attorney At Law, Kenosha, WI, for Plaintiff-Appellee.

Susan E. Lappen, Esq., Assistant City Attorney, Milwaukee City Attorney's Office, for Defendants-Appellants.

Before Sykes, Chief Judge, and Brennan and St. Eve, Circuit Judges.

Brennan, Circuit Judge.

Jerry Smith, Jr. reportedly left the scene of a fight and returned with a gun. After a citizen complained, two Milwaukee police officers on patrol came upon Smith and saw that he matched the description relayed by dispatch. When the officers approached Smith to investigate, he fled. The officers followed, believing Smith was armed.

Smith was found hiding on a rooftop one block away, and when the pursuing officers discovered him, an intense and dangerous standoff took place. After Smith refused numerous orders to cooperate, two other officers—Melvin Finkley and Adam Stahl, the defendants here—approached Smith, and believing he was armed, drew their guns. What followed is disputed: the officers thought Smith was reaching down behind an air conditioning unit for a gun, and Smith said he was responding to an earlier command to get down on the ground. Finkley and Stahl shot Smith three times. He survived but with serious injuries. Video from the officers’ body cameras captured these events.

Smith sued under 42 U.S.C. § 1983 and alleged excessive force in violation of the Fourth Amendment. The officers moved for summary judgment, arguing that their use of force was reasonable as a matter of law and that qualified immunity shielded them from liability. After the district court denied the officers’ motion, they filed this interlocutory appeal of the denial of qualified immunity. In this posture, appellate jurisdiction is limited: we can resolve an abstract legal question, but not factual disputes that are important to and inseparable from the qualified immunity defense.

As we must, we consider this court's jurisdiction in view of Smith's claim of unreasonable use of deadly force and the officers’ qualified immunity defense. That assessment, from the perspective of a reasonable officer on the scene, evaluates whether the totality of the circumstances justified seizure by shooting. Some of those circumstances weighed in favor of the police using deadly force to seize Smith. But in the short time frame before and when the officers shot Smith, factual disputes exist about how much of a threat Smith posed and how actively he was resisting. The qualified immunity decision depends upon and cannot be separated from these disputes, which are integral to the merits of Smith's claim. Because we cannot resolve these factual disputes, we dismiss this appeal for lack of jurisdiction.



As in many qualified immunity cases, the factual record plays a critical role in our review of the district court's decision. Our account of the facts comes from the evidence submitted on the defendants’ summary judgment motion, construed in Smith's favor.

10 F.4th 730

King v. Hendricks Cnty. Comm'rs , 954 F.3d 981, 984 (7th Cir. 2020). That evidence includes videos from the body cameras of three of the officers involved. These videos overlap in time and place and show the same events from different perspectives.

Although we view the facts in the light most favorable to the nonmovant on summary judgment, qualified immunity precedent provides that a factual account is not to be credited if it is "blatantly contradicted" by the video evidence. Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). "This is because on summary judgment we view the facts in the light most favorable to the nonmovant only if there is a genuine dispute about those facts." Horton v. Pobjecky , 883 F.3d 941, 944 (7th Cir. 2018) (citing Scott , 550 U.S. at 378–81, 127 S.Ct. 1769 ). When video "firmly settles a factual issue," we will not "indulge stories clearly contradicted by the footage" because there is no genuine factual dispute. Horton , 883 F.3d at 944. "Of course, videos are sometimes unclear, incomplete, and fairly open to varying interpretations." Id. "A conclusive video allows a court to know what happened and decide the legal consequences," but a video that is ambiguous or "not wholly clear" can be relied on only for those facts that can be established "with confidence" and "beyond reasonable question." Johnson v. Rogers , 944 F.3d 966, 967, 969 (7th Cir. 2019).


Now to the facts, which occurred in Milwaukee on August 31, 2017, at approximately 1:00 p.m. The events here unfolded in three stages: (1) bicycle officers approached Smith who ran away; (2) believing Smith was armed, the bicycle officers followed and found him one block away on the roof of a parking garage; and (3) after a standoff the defendant officers approached Smith on the roof and shot him.

1. Smith's interaction with bicycle officers

City of Milwaukee uniformed police officers Robert Ferrell and Matthew Wenzel (who are not defendants here) were patrolling on bicycles. In response to a citizen complaint of two men with guns, the officers reported to an apartment building at 2922 West Wells Street in Milwaukee. Dispatch told them there had been a fight near the building, and that police were sent to respond, but those involved had dispersed. The officers also learned that 15 to 30 minutes after the fight, a citizen reported that the two men had returned with guns.

Arriving on the scene, Ferrell and Wenzel encountered two men walking west on the 2800 block of West Wells Street who matched the descriptions from the dispatch. Wenzel's body camera video depicts the officers’ interactions with these two men. Smith does not dispute he was one of the men, although he maintains he returned to retrieve his cell phone, which had fallen to the ground during the earlier fight. When the officers asked the men to stop and talk, one stopped, but the other—later identified as Jerry Smith—walked rapidly away from the officers while talking on his phone. He then ran south on 29th Street.

Before Smith ran, the officers observed a bulky, L-shaped object about six inches long in his left pants pocket. While running away, Smith was seen using his left hand to cover and hold the object in place. Wenzel's video depicts this, although a gun is not visible in the video. Based on his 22 years’ experience as an officer, along with how the object looked and how Smith appeared to be holding it, Wenzel thought Smith possessed a gun. Ferrell concluded the same. For his part, Smith testified that as he ran from the two bicycle officers, he

10 F.4th 731

heard a man he knew as "Chris" scream to the officers that Smith had a gun.

From these events, the officers concluded that Smith was one of the subjects of the earlier dispatch. On their bicycles, Ferrell and Wenzel chased Smith on 29th Street towards Wisconsin Avenue. But Ferrell lost sight of Smith as he turned into an alley that runs behind a different apartment building at 2905 West Wisconsin Avenue. Wenzel caught up with Ferrell, and for a few minutes they looked for Smith in yards and behind fences adjacent to the alley.

2. On the roof behind 2905 West Wisconsin Avenue

The back of the apartment building faces south and includes a one-story parking garage accessible from the alley. A staircase on the west side of the garage allows access to the roof.

Ferrell and Wenzel climbed the staircase. At the top, they were able to see out onto the rectangular roof, which was bordered on three sides with a short perimeter wall. The fourth side, to the officers’ left, is formed by the wall of the apartment building. The officers observed two cube-shaped air conditioning (AC) units, each waist high, set about twenty feet apart, one after the other and parallel to the building.

Wenzel, as he told Ferrell at the time, hesitated to step onto the roof because he believed Smith had a gun. While scanning the roof from the staircase, the officers noticed a shadow moving behind the AC unit closer to them. The shadow was cast by Smith, who was hiding behind that unit.

Smith peeked out. The officers saw him, and from the staircase, they pointed their service weapons at Smith. They yelled a series of commands, including "show your hands" and "get over here and we won't shoot." As the officers shouted to Smith, he walked away from them toward the far end of the roof. Smith says he complied with the officers’ commands, but the video clearly contradicts this. At one point, Smith showed his hands with the right holding a black phone. Wenzel's video shows that Smith moved his hands toward his pockets several times, and Wenzel and Ferrell repeatedly shouted at Smith not to do so. For about ninety seconds, Wenzel and Ferrell ordered Smith to come to them and to get off the roof—repeating these commands approximately 25 to 30 times. Smith did not comply. With their guns pointed at Smith, the officers remained on the...

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