LEVAN v. George

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3223

M ICHAEL L EVAN,

Plaintiff-Appellee,

v.

S TEVEN G EORGE, S ANDRA W ESTERFIELD, AND

C OUNTY OF P EORIA,

Defendants-Appellants.

Appeal from the United States District Court

for the Central District of Illinois.

No. 06-1022—John A. Gorman, Magistrate Judge.

A RGUED F EBRUARY 11, 2010—D ECIDED A PRIL 28, 2010

Before K ANNE, W OOD , and H AMILTON, Circuit Judges.

K ANNE, Circuit Judge. Proceeding in federal court,

Michael Levan accused two Peoria County, Illinois

Sheriff’s Deputies, who were serving as court security

officers, of false arrest and excessive use of force,

allegedly perpetrated during their arrest of Levan for

disorderly conduct. Defendants raised the defense of

qualified immunity before the district court. Upon the

2 No. 09-3223

district court’s finding that genuine issues of material

fact existed precluding defendants’ motion for sum-

mary judgment on qualified immunity grounds, defen-

dants took this appeal. Because we lack appellate juris-

diction over this appeal, we dismiss.

I. B ACKGROUND

It is not every day that we are called upon to address

issues stemming from a simple parking violation. But

today is one such day. Michael Levan received a parking

ticket from the City of Peoria. He failed to appear at a

scheduled hearing to contest the ticket. Upon Levan’s

failure to appear, the Assistant Corporate Counsel for

the City of Peoria, Sonni Williams, sought and obtained

a default judgment against Levan. In response, Levan’s

attorney prepared a motion to vacate the default judgment.

On February 5, 2004, Levan went to the Peoria County

courthouse because he believed there was a hearing

scheduled to address his motion to vacate. His case was

called in courtroom 321. Levan entered the crowded

courtroom and sat down at counsel table next to Assistant

Corporate Counsel Williams. Before the judge took the

bench, the two began to discuss his case.

Levan informed Williams that he was seeking to

vacate the default judgment, to which she responded

that his motion was not in her file, so it would not be

decided that day. The parties dispute what exactly was

said and the manner in which it was said; however, at

some point, Levan reached for Williams’s file. Williams

No. 09-3223 3

told Levan not to touch her files, but Levan insisted that

the motion was in the file and that he wanted it to be

heard. Williams explained that she had not received a

copy of the motion, so it could not be heard that day.

During the confrontation she threw her hands in the

air and muttered something, but it is unclear precisely

what she said.

In the course of the altercation and in the absence of

the judge, the bailiff radioed for additional courtroom

security. When the two uniformed courtroom security

officers arrived, the bailiff explained what had happened

and pointed out Levan. Officers Sandra Westerfield

and Steven George then stood directly behind Levan,

observing the interaction. Although whether Levan was

being loud or disruptive is vigorously disputed,

Westerfield stated that when it became clear to her that

the dispute was escalating, she told Levan that he

needed to settle down or he would be arrested for dis-

orderly conduct.

Levan responded that Westerfield would just have to

arrest him. He stood up and put his left hand behind his

back, where Westerfield cuffed it. Rather than put his

right hand behind his back, however, Levan either raised

it over his head or pulled it back. While Levan claims

he intended no threat by the movement, Officer George

interpreted the movement as threatening, thinking

that Levan intended to strike Williams. George grabbed

Levan’s right arm and brought it down to be hand-

cuffed by Westerfield.

Both officers then claim that Levan continued to resist

after being handcuffed, prompting George to remove

4 No. 09-3223

Levan’s glasses and administer one dose of pepper spray

to Levan’s face. Eventually Levan was escorted from

the courtroom to a holding cell.

Levan was later charged with disorderly conduct. Levan

did not testify at his trial, although in closing, Levan’s

counsel made statements alluding to the fact that Levan

knew his behavior was wrong, he accepted his punish-

ment, and he wanted to forget the incident. Levan was

acquitted of the charges.

Levan subsequently filed a complaint in federal court

against Williams; Officers George, Westerfield, and

Randy Weber (who was later dismissed from the case);

the City of Peoria; and the County of Peoria. Levan

claimed various violations, including false arrest and

excessive use of force in violation of the Fourth Amend-

ment, malicious prosecution in violation of the Fifth

Amendment, deprivation of access to courts in violation

of the Sixth Amendment, and a claim against the county

for indemnification of the court security officers. The

Fifth and Sixth Amendment claims were dismissed, so

all that remains are the Fourth Amendment claims and

the claim for indemnification.

The magistrate judge granted summary judgment for

the defendant City and for Williams, but denied qualified

immunity to defendants George, Westerfield, and the

County, finding that genuine issues of material fact

precluded a qualified immunity determination at the

summary judgment stage of the proceedings. Defendants

appealed. We now dismiss their appeal for want of ap-

pellate jurisdiction.

No. 09-3223 5

II. A NALYSIS

Ordinarily an appeal can be taken only from a final

judgment of the district courts. 28 U.S.C. § 1291. A denial

of summary judgment when qualified immunity is the

defense can be an immediately appealable final decision,

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); Wernsing. v.

Thompson, 423 F.3d 732, 741 (7th Cir. 2005), which we

review de novo, Wernsing, 423 F.3d at 741. Under the

collateral order doctrine, a denial of qualified immunity

can be properly appealable as a final decision because

improperly subjecting a governmental defendant to suit

is the harm in and of itself. Mitchell, 472 U.S. at 526

(“The entitlement [to qualified immunity] 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.”).

But just because an order denying a motion to dismiss

on qualified immunity grounds is generally considered

a final decision, it does not mean that the right to

appeal that order is unlimited. If the denial of qualified

immunity turns on factual rather than legal questions, the

denial is not properly subject to appellate jurisdiction

under the collateral order doctrine because the decision

is not “final.” Johnson v. Jones, 515 U.S. 304, 313-18

(1995); Wernsing, 423 F.3d at 741.

Before we reach the primary contention in this case,

however, we must first address whether the district

court’s denial of summary judgment was in fact a denial

of qualified immunity. We are faced with this question

because in deciding defendants’ summary judgment

6 No. 09-3223

motion, the district court never used the term “qualified

immunity.”

We agree with defendants that the court’s decision

on probable cause amounted to a rejection of their

qualified immunity defense. If the undisputed facts

demonstrated that the officers had probable cause to

arrest Levan, then he could not prevail on his claim of

wrongful arrest; the officers would be entitled to

prevail on the merits, as well as on the first element of

the qualified immunity defense. Even if the undisputed

facts showed that the officers had made a reasonable

error when they arrested Levan, qualified immunity

would be available, though not a judgment on the merits.

Gonzalez v. City of Elgin, 578 F.3d 526, 540 (7th Cir. 2009)

(“Accordingly, qualified immunity is an available

defense for ‘officers who make a reasonable error in

determining whether there is probable cause to arrest an

individual.’ ” (quoting Chelios v. Heavener, 520 F.3d 678,

691 (7th Cir. 2008))). Here, the district court found that

there were genuine issues of material fact with respect

to both the existence of probable cause and whether

Levan acted in an unruly manner before, during, and

after his arrest. Based on the former finding, the court

denied qualified immunity on the wrongful arrest

claim; based on the latter finding, it denied qualified

immunity on the excessive force claim. The next question

is whether those rulings are properly before this court.

The Johnson case (which also arose in Illinois) involved

a relatively analogous issue. In that case, the district

court denied the officers’ summary judgment motions

No. 09-3223 7

based on qualified immunity because genuine issues of

material fact existed regarding whether the officers were

the same ones involved in the offense. 515 U.S. at 307-08.

This court dismissed the officers’ appeal on the grounds

that we had no appellate jurisdiction to determine

whether the record raised a genuine issue of material

fact. Id. at 308. In affirming our determination that the

lower court’s denial was not a “final decision,” the Su-

preme Court delineated the boundaries of appeals based

on qualified immunity. Id. at 313-18.

As the Court explained, the rationale behind limiting

immediately appealable qualified immunity questions

to those involving only legal issues is threefold. First, as

the precedential case for qualified immunity, Mitchell

limited its holding to appeals challenging only the

purely legal issue of whether the law was clearly estab-

lished; it does not allow appellate courts to examine the

district courts’ conclusions of what factual issues are

“genuine” for purposes of summary judgment deter-

minations. Id. at 313. Second, the only reason qualified

immunity decisions can be brought within the realm of

§ 1291’s “final decision” requirement is that the decisions

being immediately appealed “involve[] issues signifi-

cantly different from those that underlie the plaintiff’s

basic case.” Id. at 314. If the legal issue being ap-

pealed is not significantly different than the factual

issues underlying the claim, this separability require-

ment will be nearly impossible to satisfy. Id. Third,

the competing interests underlying questions of finality

weigh in favor of finding that “ ‘[i]mmunity appeals . . .

interfere less with the final judgment rule if they [are]

8 No. 09-3223

limited to cases presenting neat abstract issues of law.’ ” Id.

at 317 (quoting 5A Charles Alan Wright, Arthur R. Miller,

& Edward H. Cooper, Federal Practice and Procedure

§ 3914.10, at 664 (2d ed. 1992)).

We think the case at hand falls squarely within

Johnson’s parameters. It is obvious to us that the separ-

ability requirement is very clearly lacking here. The

magistrate judge denied defendants’ claim of qualified

immunity on the grounds that genuine issues of material

fact existed with regard to whether Officers George

and Westerfield had probable cause to arrest Levan, and

whether Officer George had probable cause to use

force. Although at oral argument defendants’ counsel

attempted to distinguish the factual determinations

from the legal issue of qualified immunity, we find it

nearly impossible to sever the two questions. Instead, we

think it readily apparent that the question of qualified

immunity turns on genuine issues of material fact. As

Justice Breyer wrote in Johnson, when “a defendant

simply wants to appeal a district court’s determination

that the evidence is sufficient to permit a particular

finding of fact . . . it will often prove difficult to find

any such separate question . . . .” Id. at 314. That admoni-

tion rings true here.

III. C ONCLUSION

Because we lack jurisdiction, the appeal is D ISMISSED.

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