Whitt v. Smith, 86-2882

• Decision Date: 02 November 1987
• Docket Number: No. 86-2882,86-2882
• Parties: Simmie WHITT, Plaintiff-Appellee, v. Roger SMITH, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 451

832 F.2d 451

Simmie WHITT, Plaintiff-Appellee, v. Roger SMITH, et al., Defendants-Appellants.

No. 86-2882.

United States Court of Appeals, Seventh Circuit.

Argued April 8, 1987.

Decided Nov. 2, 1987.

Franklin C. Cook, Rockford, Ill., for defendants-appellants.

Peter T. Sullivan, III, Sreenan & Cain, P.C., Rockford, Ill., for plaintiff-appellee.

Before WOOD, COFFEY and RIPPLE, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

The plaintiff, Simmie Whitt, sued the defendants, the City of Rockford and several police officers, under 42 U.S.C. Sec. 1983. ¹ The plaintiff sought to recover damages for gunshot injuries he suffered when police made a warrantless entry into the plaintiff's apartment. Before trial, both the defendants and the plaintiff moved for summary judgment. The magistrate recommended that both motions be denied, and the district court adopted the magistrate's report and recommendation, with some additional comments. The defendants have appealed the denial of summary judgment on the issue of qualified immunity. Because we find that the district court did not adequately consider the evidence in the record in denying the defendants qualified immunity, we vacate the denial of summary judgment and remand to the district court for further proceedings.

I. FACTUAL BACKGROUND

The plaintiff agrees that the statement of facts in the magistrate's report and recommendation is correct, and we draw our summary of the facts from that report.

The plaintiff lived with others in an apartment at 210 1/2 Ogden Avenue in Rockford, Illinois. In the early hours of January 26, 1984, police entered the apartment and the plaintiff was shot and injured.

Five days earlier, a woman had been struck in the face with a gun by a black woman while shopping at O'Donnell's Foods in Rockford. Witnesses observed the assailant leaving with a black man in an older model green Chevrolet with the driver pointing a shotgun out the car's window.

A license check of the car indicated that the car was registered to John Moore, whose residence was listed as 210 1/2 Ogden. Defendant Officer Scheffels was assigned to investigate the incident, and he contacted Moore. Moore denied any participation in the incident, and told Scheffels that he had loaned his car to an acquaintance named Jeff. After the victim disappeared the police did not pursue the investigation.

Late on January 25, 1984, police received a call for assistance from Charles Blissit at 236 North Independence Avenue. Blissit told police that three black men, all armed and one carrying a rifle, had just been at that address. Blissit said that he had been with the woman who was pistol-whipped at O'Donnell's, and that he recognized one of the three men as having accompanied the assailant at O'Donnell's.

While the police were investigating the incident on Independence Avenue, they received a report of a shooting at 1827 Green Street, ² which is about five blocks from 236 North Independence Avenue. Roger Purifoy had been shot in the bathroom of his girlfriend's apartment. He told police that his assailants were three black men, all were armed, and one was carrying a rifle or shotgun.

Officer Scheffels, who was on duty that night, went to the vicinity of the Green Street incident, but did not speak with the victim or any witnesses. He did not go to the Independence Avenue location, but when he heard the information broadcast about the incident there, he responded by broadcasting information he had acquired through his investigation of the O'Donnell's incident. The police gathered at John Moore's apartment at 210 1/2 Ogden. Moore's car was parked in front, and lights were on inside the apartment.

Defendant Sergeant Smith went to the Ogden Street address from the Green Street shooting. He decided that the officers should attempt to gain entry to the apartment by the resident's consent, if possible, but by force, if necessary. Two of the officers were assigned to the front of the building, and the other five went around to the rear entrance located at the top of some exterior stairs.

Defendant Officer McDonald, who was in full uniform, knocked on the rear door and announced himself as the police. After he repeated his knock and announcement, the door was opened by an individual who then attempted to shut it. The officers forced the door open and moved into the kitchen area of the apartment.

Immediately upon entering the apartment Officer McDonald noticed an adult male coming into the kitchen and carrying a shotgun. Officer McDonald shot his handgun at the man carrying the shotgun and wounded him in the arm. The man wounded by the shot was the plaintiff.

II. DISCUSSION

Qualified Immunity

The defendants filed a motion for summary judgment largely based on the argument that they were entitled to qualified immunity for the actions they took in making the warrantless entry. The district court, adopting the magistrate's report and recommendation, found that disputed issues of material fact remained for trial, and denied the defendants' motion for summary judgment. The defendants appealed.

Ordinarily, a denial of a motion for summary judgment is not immediately appealable because the denial "is usually grounded upon the presence of a triable issue of fact, and such an order of denial is interlocutory and not a final judgment for the claim still remains pending for trial." 6 J. Moore & J. Wicker, Moore's Federal Practice p 56.21 at 56-127 (2d ed. 1987). Because the defendants asserted qualified immunity in their motion for summary judgment, however, the denial of the motion is immediately appealable. The Supreme Court, discussing this issue, has said that

[t]he entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial. Accordingly, the reasoning that underlies the immediate appealability of an order denying absolute immunity indicates to us that the denial of qualified immunity should be similarly appealable: in each case, the district court's decision is effectively unreviewable on appeal from a final judgment.

Mitchell v. Forsyth, 472 U.S. 511, 526-27, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985) (emphasis in original). The Supreme Court thus found that "a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision' within the meaning of 28 U.S.C. Sec. 1291 notwithstanding the absence of a final judgment." Id. at 530, 105 S.Ct. at 2817.

Whether a defendant is entitled to qualified immunity for his actions is a question of law for the judge to decide. Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 2738-39, 73 L.Ed.2d 396 (1982); Llaguno v. Mingey, 763 F.2d 1560, 1569 (7th Cir.1985), cert. dismissed, --- U.S. ----, 107 S.Ct. 16, 92 L.Ed.2d 783 (1986).

On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred .... Until this threshold immunity...