White v. Gerardot

• Decision Date: 05 December 2007
• Docket Number: No. 07-1418.,07-1418.
• Citation: 509 F.3d 829
• Parties: 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.
• Court: U.S. Court of Appeals — Seventh Circuit

509 F.3d 829

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.

No. 07-1418.

United States Court of Appeals, Seventh Circuit.

Argued September 27, 2007.

Decided December 5, 2007.

Thomas A. Manges, Roby, Hood & Manges, Fort Wayne, IN, Heather A. Jefferson (argued), Fieger, Fieger, Kenney & Johnson, Southfield, MI, for Plaintiff-Appellee.

Carolyn M. Trier (argued), Hunt Suedhoff Kalamaros, Fort Wayne, IN, for Defendant-Appellant.

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 Ford. The district court¹ denied Detective Gerardot's motion for summary judgment based on qualified immunity. Detective Gerardot then appealed this denial under Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). For the reasons 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 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 reported gang fight. Detective Gerardot parked his unmarked police car near the VFW and observed the situation 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 something 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 someone 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 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 determined 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 conclude 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, accepting 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 believe that it is lawful to shoot an unarmed suspect who is surrendering to the police with his hands in the air." Id.

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, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). See generally Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 93 L.Ed. 1528 (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, 105 S.Ct. 2806. 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, 115 S.Ct. 2151, 132 L.Ed.2d 238 (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, 115 S.Ct. 2151, 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 district court's determination that a set of facts demonstrate 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 jurisdiction are clear in the typical qualified immunity appeal. We have jurisdiction when the party seeking to invoke it makes a purely...