The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CATHERINE BROWN,
Plaintiff, Case No. 15-cv-4127
v. Judge John Robert Blakey
MICHELLE MORSI et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter arises from a 2013 traffic stop and the ensuing altercation
between the parties that ended in Plaintiff Catherine Brown’s arrest. On June 26,
2018, this Court denied Plaintiff’s motion for summary judgment on Counts I and II
of her complaint, which alleged that Defendant Officer Michelle Morsi used
excessive force when she intentionally collided her car with Plaintiff’s as Plaintiff
fled the scene. See [154, 155]. Morsi invoked qualified immunity in her response
brief, and this Court granted her summary judgment. [155] at 19. On July 9, this
Court denied Plaintiff’s motion for reconsideration. [161].
Plaintiff now moves to certify two proposed issues for an interlocutory appeal:
(1) whether, in 2013, the law was clearly established that a police officer violates
the Fourth Amendment by intentionally colliding with a suspect’s vehicle; and (2)
whether the district court may grant summary judgment based upon a qualified
immunity defense raised in a defendant’s response brief. [165] at 3, 8. For the
reasons explained below, this Court denies Plaintiff’s motion.
I. Legal Standard
To grant a motion for an interlocutory appeal, the district court must
determine that one of its orders “involves a controlling question of law as to which
there is substantial ground for difference of opinion and that an immediate appeal
from the order may materially advance the ultimate termination of the litigation.”
28 U.S.C. § 1292(b). Four criteria govern this inquiry: “there must be a question of
law, it must be controlling, it must be contestable, and its resolution must promise
to speed up the litigation.” Ahrenholz v. Bd. of Trs. of Univ. of Ill., 219 F.3d 674,
675 (7th Cir. 2000). The moving party must also file its petition within a reasonable
time after entry of the order it seeks to appeal. Id. “Unless all these criteria are
satisfied, the district court may not and should not” certify an order for
interlocutory appeal. Id. at 676.
II. Analysis
A. Clearly Established Law
Plaintiff’s first proposed question for appeal fails because it is not
“contestable” under § 1292(b); that is, no “substantial ground” exists for differences
of opinion as to its resolution. § 1292(b); Ahrenholz, 219 F.3d at 675. A contestable
issue presents a “difficult central question of law which is not settled by controlling
authority” and poses a “substantial likelihood” that the district court’s ruling may
be reversed on appeal. In re Brand Name Prescription Drugs Antitrust Litig., 878 F.
Supp. 1078, 1081 (N.D. Ill. 1995). No such question exists here.
Plaintiff frames her first proposed question as follows: Crediting Plaintiff’s
version of events, “was the law clearly established that a police officer violates the
Fourth Amendment when they intentionally cause a two-car collision with a
stationary vehicle containing an individual accused of committing a misdemeanor
offense?” [165] at 3.
First, this Court notes that Plaintiff’s phrasing attempts to revisit factual
arguments and evidentiary issues addressed in this Court’s summary judgment
ruling. As this Court noted then—and when addressing Plaintiff’s motion to
reconsider—taking inferences in Plaintiff’s favor does not extend to disregarding
video evidence. Indeed, this Court must view “the facts in the light depicted” by
video evidence. Scott v. Harris, 550 U.S. 372, 380–81 (2007); see also Hurt v. Wise,
880 F.3d 831, 840 (7th Cir. 2018). The dash cam video of the parties’ encounter
shows that Plaintiff’s car was still rolling, albeit slowing down, when Morsi’s squad
car made contact. See [155] at 5, 16; [125-8] at 9:34–9:43. And, as Plaintiff’s
proposed question fails to note, the collision occurred in the context of Plaintiff’s
intentional and dangerous flight from the scene. See [155] at 4; [125-8] at 9:15–
9:50.1 To the extent Plaintiff seeks to challenge those facts—despite their basis in
her own admissions and uncontested video evidence—an interlocutory appeal does
not provide the proper forum for such a challenge. See In re Text Messaging
Antitrust Litig., 630 F.3d 622, 625 (7th Cir. 2010); Ahrenholz, 219 F.3d at 676–77.
1 Indeed, Plaintiff’s motion raises serious ethical questions under Rule 11, as it disingenuously
describes Plaintiff as a “non-fleeing, non-resistant” offender. [165] at 8. That description flatly
contradicts the video evidence, [125-8] at 8:49–11:00, and this Court disregards it, see Hurt, 880 F.3d
at 840.
Thus, the question before this Court at summary judgment—which Plaintiff
now seeks to subject to interlocutory appeal—was whether existing precedent
“squarely” governed “the specific facts at issue.” Kisela v. Hughes, 138 S. Ct. 1148,
1152 (2018). As this Court previously explained, [155] at 16, the facts here include
“a brief, moderately-paced pursuit of Plaintiff (as she drove in reverse away from
police with her door open) before she began to stop ‘next to, or made slight contact
with,’ a parked car, at which point Morsi collided—at moderate speed, and without
setting off either car’s airbags—with Plaintiff’s car.” [155] at 16. This Court has
now twice found that “the violative nature” of Morsi’s “particular conduct” was not
“clearly established” in 2013, and thus Morsi merits qualified immunity. Mullenix
v. Luna, 136 S. Ct. 305, 308 (2015); see also [155] at 17–19; [161]. This Court’s
conclusion does not change in light of the standard governing interlocutory appeals.
As noted, the contestability prong of the interlocutory appeal inquiry requires
“substantial ground” for differences of opinion on the question presented. § 1292(b).
This may be shown through conflicting authority on the relevant issue. See
Hoffman v. Carefirst of Ft. Wayne, Inc., No. 1:09-CV-251, 2010 WL 3940638, at *2
(N.D. Ind. Oct. 6, 2010) (collecting cases); Carlson v. Brandt, No. 97-C-2165, 1997
WL 534500, at *6 (N.D. Ill. Aug. 22, 1997) (noting that “interlocutory appeal is
unjustified, inefficient, and unnecessary when the movant has not set forth
substantial conflicting decisions regarding the claimed controlling issue of law”). In
some circumstances, the novelty or unsettled nature of the issue may also
demonstrate contestability. See City of Joliet v. Mid-City Nat’l Bank, No. 05-C-
6746, 2008 WL 4889038, at *2 (N.D. Ill. Jun. 13, 2008) (granting motion to certify
appeal), aff’d sub nom. City of Joliet, Ill. v. New West, L.P., 562 F.3d 830 (7th Cir.
2009); In re Brand Name Prescription Drugs, 878 F. Supp. at 1081.
Because Plaintiff’s proposed question deals with qualified immunity,
however, the issue it presents requires careful framing. The question is not
whether the facts of this case present a novel or unresolved issue—they do. The
question proposed for appeal is whether, in May 2013, Morsi’s conduct violated a
right that had been clearly established by existing precedent. See Ashcroft v. al-
Kidd, 563 U.S. 731, 735 (2011). Thus, the present inquiry is whether “substantial
ground” exists for disagreement as to the state of the law in 2013, so that there is a
“substantial likelihood” that this Court’s determination of that issue may be
reversed. § 1292(b); In re Brand Name Prescription Drugs, 878 F. Supp. at 1081.
This Court will not rehash its decision awarding Morsi qualified immunity on
her intentional collision with Plaintiff’s car, but incorporates by reference the
relevant portions of its ruling. See [155] at 15–19. For present purposes, suffice to
say that this Court remains unaware of any case that placed Morsi’s conduct
“beyond debate” as of 2013. Mullenix, 136 S. Ct. at 308.
Felton v. City of Chicago—in which the Seventh Circuit acknowledged that
ramming the car of an unthreatening suspect might support a Fourth Amendment
claim—dates three years after Morsi’s actions. 827 F.3d 632, 636 (7th Cir. 2016).
Donovan v. City of Milwaukee addressed a car-motorcycle collision, and—contrary to
Plaintiff’s contention—that court did find that the difference between a two-car
collision and a car-motorcycle collision helped define the Fourth Amendment right
allegedly violated. See 17 F.3d 944, 951 (7th Cir. 1994) (“Here, for example, we
distinguish between a motorcycle and an automobile in terms of the likelihood that
a particular seizure amounts to the use of deadly force.”).2 That distinction directly
informed the Seventh Circuit’s analysis as to the actual right at issue in the case,
see id., which must always “be defined at the appropriate level of specificity,” Kemp
v. Liebel, 877 F.3d 346, 351 (7th Cir. 2017) (citing Wilson v. Layne, 526 U.S. 603,
615 (1999)). Here, defining Plaintiff’s right with specificity requires examining
cases involving two-car collisions. Donovan does not present such a case.3
In short, neither Plaintiff nor this Court has identified any case pre-dating
2013 that would have informed Morsi, or any reasonable official, that her actions
violated the Constitution. See Kisela, 138 S. Ct. at 1153. Thus, the state of the law
on intentional two-car collisions in 2013 is not contestable: as of that date, no direct
precedent or “clear trend” in case law condemned Morsi’s particular conduct. Kemp,
877 F.3d at 351. No “substantial ground” for disagreement exists as to that point,
2 This Court also notes that every case Plaintiff cites applying Donovan also addresses car-
motorcycle collisions, again demonstrating Donovan’s precedential value as to those facts. See [165]
at 7.
3 Plaintiff’s reliance on a footnote in Donovan to paper over this factual distinction is improper and
misplaced. Out of context, the footnote appears to suggest that factual distinctions only implicate
“the reasonableness of the seizure and not the state of the clearly established law at the time of the
incident.” 17 F.3d at 952 n.5. Taken literally, that statement would clearly run afoul of Mullenix,
Kisela, and other Supreme Court precedent directing courts to assess qualified immunity—
particularly in the Fourth Amendment context—in light of the specific conduct at issue. See Kisela,
138 S. Ct. at 1153; Mullenix, 136 S. Ct. at 308. In context, however, it is clear that the Donovan
court actually intended to explain why an Eleventh Circuit case remained relevant to its analysis of
the state of the law, despite certain factual distinctions between that case and Donovan. See 17 F.3d
at 952–53, 952 n.5.
and this Court cannot find that it faces a “substantial likelihood” of reversal on this
issue. § 1292(b); In re Brand Name Prescription Drugs, 878 F. Supp. at 1081.
B. Raising Qualified Immunity as a Defense
Plaintiff’s second proposed question for appeal fails for similar reasons.
Plaintiff frames her second question as follows: “Can a District Court grant
summary judgment to a non-movant based upon a legal argument that is raised for
the first time in a response brief without first giving notice to the parties of the
Court’s intention to consider the non-movant’s arguments in favor of summary
judgment, and a full opportunity to respond to those arguments with facts and legal
arguments?” [165] at 8.
Qualified immunity constitutes a defense, but not a defense that must be
raised at a particular point in the proceedings. See Chasensky v. Walker, 740 F.3d
1088, 1094 (7th Cir. 2014); Rakovich v. Wade, 850 F.2d 1180, 1205–05 (7th Cir.
1988); Birdo v. Gomez, 214 F. Supp. 3d 709, 716–17 (N.D. Ill. 2016) (collecting
cases). Of course, arguments presented for the first time in a reply brief may be
waived, see e.g., Narducci v. Moore, 572 F.3d 313, 323–24 (7th Cir. 2009), but here,
Plaintiff challenges this Court’s grant of qualified immunity as to Counts I and II
based upon Morsi’s invocation of qualified immunity in her response brief, see [165]
at 8; [155] at 19. That fact distinguishes the present situation and indeed, Plaintiff
does not argue that Morsi waived her qualified immunity defense; instead, Plaintiff
challenges Morsi’s very ability to invoke qualified immunity in response to
Plaintiff’s motion for summary judgment, contending that doing so deprived
Plaintiff of notice and an opportunity to respond fully to that argument. [165] at 9.
This argument—and Plaintiff’s motion for appeal—fails, both because Plaintiff did
have notice and an opportunity to respond, and because no precedent supports the
notion that officers cannot raise the defense of qualified immunity in response to a
summary judgment motion.
Plaintiff attempts to argue that this Court’s grant of summary judgment ran
afoul of the Seventh Circuit’s precedent governing the sua sponte grant of summary
judgment. [165] at 9. In fact, the sole case that Plaintiff cites in support of her
contention proves otherwise. In Hotel 71 Mezz Lender LLC v. National Retirement
Fund, the Seventh Circuit laid out the procedure for addressing an unsuccessful
motion for summary judgment. 778 F.3d 593, 603 (7th Cir. 2015). Having found
that the moving party did not merit summary judgment, a court considering “the
prospect of entering summary judgment against the unsuccessful movant, whether
in response to a cross-motion for summary judgment or on its own initiative,” the
court must “now grant the unsuccessful movant all of the favorable factual
inferences that it has just given to the movant’s opponent.” Id. If, in that posture,
“no finder of fact could reasonably rule in the unsuccessful movant’s favor,” the
district court may “properly enter summary judgment against that movant.” Id.
That is precisely what happened here.
As this Court explained in its summary judgment ruling, it treated Morsi’s
qualified immunity defense as a request for summary judgment and construed the
record in the light most favorable to Plaintiff. [155] at 13. In doing so, this Court
followed the persuasive authority of other courts in this district considering
qualified immunity defenses raised in response to motions for summary judgment.
See id. (citing Flores v. Lackage, 938 F. Supp. 2d 759, 774 (N.D. Ill. 2013)). Drawing
all inferences in Plaintiff’s favor—and considering Plaintiff’s arguments opposing
qualified immunity in her reply brief—this Court found that Morsi merited
qualified immunity and entered summary judgment accordingly. Id. at 13–19.
This Court cannot conceive of any procedural unfairness posed by this
unremarkable scenario. Here, all individual defendants invoked qualified
immunity in their answer to Plaintiff’s amended complaint. [42] at 17. Morsi then
raised qualified immunity through a fully developed argument in response to
Plaintiff’s motion for summary judgment, [132] at 8–10, to which Plaintiff
responded in her reply, [146] at 7–10. (Plaintiff then followed up this fully-briefed
response with a motion for reconsideration [159], and the instant motion for an
interlocutory appeal [165]). Thus, Plaintiff had notice from the earliest stages in
the case that Morsi would invoke qualified immunity, and a full opportunity to
respond in her reply brief, as well as her subsequent filings. The Tenth Circuit
addressed nearly identical circumstances and arguments and found that a
defendant officer’s assertion of qualified immunity in a response brief provided
adequate notice to the plaintiff that she must present her evidence and arguments
“to forestall a potential grant of qualified immunity” to the defendant. A.M. v.
Holmes, 830 F.3d 1123, 1137 (10th Cir. 2016). Indeed, to find otherwise would
require any official seeking to invoke qualified immunity to file a separate motion or
counter-motion any time the plaintiff moved for summary judgment, resulting in
duplicative, unnecessary, and inefficient briefing.
In sum, this Court finds no “substantial ground” for disagreement on this
question, and thus cannot find that it faces a “substantial likelihood” of reversal. §
1292(b); In re Brand Name Prescription Drugs, 878 F. Supp. at 1081.
Il. Conclusion
For the reasons explained above, this Court denies Plaintiff's motion to
certify issues for interlocutory appeal [165]. Plaintiff may, of course, attempt to
appeal this order, but this Court declines to stay the proceedings here pending any
appeal. See 28 U.S.C. § 1292(b).
Dated: July 18, 2018
Entered:
Cito Blakey 2
United States District Judge
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