Jones v. Clark

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3574

C HRISTINA JONES,

Plaintiff-Appellee,

v.

C RAIG C LARK and D ONN K AMINSKI,

Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 07 C 4612—Wayne R. Andersen, Judge.

A RGUED A PRIL 7, 2010—D ECIDED JANUARY 14, 2011

Before W OOD , E VANS, and SYKES, Circuit Judges.

W OOD , Circuit Judge. Christina Jones is an employee

of Commonwealth Edison (“ComEd”), which is the

major electricity provider in the Chicago area. One day,

while working in her job as a meter reader in Braid-

wood, Illinois, she was stopped and then arrested by

Officers Craig Clark and Donn Kaminski. The officers

were responding to a report that a “person of color” was

taking pictures of houses in Braidwood. (Jones is an

2 No. 09-3574

African-American, and Braidwood is almost entirely

white. According to the U.S. Census Bureau, Braid-

wood’s population in 2000 was over 97% white. See

http://www.census.gov.) Jones sued the officers, alleging

among things that the stop and arrest violated her Fourth

Amendment rights. The defendant officers took the

position that no constitutional violation had occurred

because they reasonably suspected that Jones was

involved in criminal activity at the time of the stop and

they had probable cause to arrest her. The parties out-

lined their positions in cross-motions for summary judg-

ment, and Officers Clark and Kaminski added that

they were entitled to qualified immunity from suit, which

allows public officials to avoid trial “ ‘insofar as their

conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person

would have known.’ ” Mitchell v. Forsyth, 472 U.S. 511, 517

(1985) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). The district court concluded that factual dis-

putes required a trial on the merits and similarly made

it impossible to resolve the immunity question. In

this appeal, Officers Clark and Kaminski urge that the

undisputed facts entitle them to immunity. We conclude

that the district court correctly saw that this case is not

suitable for summary disposition, and we thus affirm.

I

We begin, as we must, with our jurisdiction to con-

sider this appeal. Appellate jurisdiction is limited to

“final decisions of the district courts.” 28 U.S.C. § 1291.

No. 09-3574 3

Generally, a lower court’s order cannot be reviewed until

all claims of all parties have been resolved. Johnson v.

Jones, 515 U.S. 304, 309 (1995). The key is finality, how-

ever, and there are some narrow circumstances in

which finality is possible even though the primary law-

suit has not yet been resolved. One such circumstance,

established in Cohen v. Beneficial Industrial Loan Corp.,

337 U.S. 541 (1949), is for “collateral orders,” which are

understood to be final and immediately appealable even

though they issue before final judgment. An order falls

within Cohen’s class of collateral orders when it conclu-

sively determines a disputed question that is separate

from the merits of the case and is effectively unreviewable

on an appeal from the final judgment. See Coopers &

Lybrand v. Livesay, 437 U.S. 463, 468 (1978).

Mitchell v. Forsyth, 472 U.S. 511, 528-30 (1985), extended

this framework to an order denying a motion for

summary judgment based on a public official’s claim of

qualified immunity. There, the Court instructed that

such an order is immediately appealable to the extent

that it turns on an issue of law. Id. at 530. In some

respects, it is easy to see how a summary decision

denying qualified immunity fits Cohen’s model.

Qualified immunity is an entitlement to avoid trial (in

addition to other burdens of litigation), and that rep-

resents an interest entirely independent of the under-

lying subject matter of the suit. Moreover, a decision

denying immunity is effectively unreviewable on an

appeal from the final judgment—the damage, by that

time, has been done. See Mitchell, 472 U.S. at 526-27. On

the other hand, the Cohen framework breaks down if

4 No. 09-3574

there is no separation between the merits of the

underlying lawsuit and the subject matter of the col-

lateral order being appealed. The order must be

separable from the primary suit; otherwise, there would

be nothing final about its resolution and jurisdiction

could not be supported under § 1291. The problem, as the

Court has recognized, is that a great number of orders

denying qualified immunity at the pretrial stage are

linked closely to the merits of the plaintiff’s claim. See

Johnson, 515 U.S. at 311-12; Mitchell, 472 U.S. at 527-29. The

order from which Officers Clark and Kaminski now

seek relief is no exception.

This conundrum led the Court in Mitchell to under-

score that a qualified-immunity appeal must focus ex-

clusively on legal questions about immunity, rather

than factual disputes tied up with the merits of the

case. 472 U.S. at 527-30. That principle is at work in the

cases that follow Mitchell. Johnson holds that a defendant

denied qualified immunity at summary judgment “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.” 515 U.S. at 319-20. To similar effect, Behrens v.

Pelletier, 516 U.S. 299, 313 (1996), warns that “determina-

tions of evidentiary sufficiency at summary judgment

are not immediately appealable merely because they

happen to arise in a qualified-immunity case[.]” Even if

we think that the district court’s reading of the summary

judgment record is incorrect, a collateral-order appeal

is not the time to resolve such a factual dispute. Via v.

LaGrand, 469 F.3d 618, 623 (7th Cir. 2006). Instead, a

No. 09-3574 5

defendant who appeals from a denial of qualified immu-

nity must limit himself to “abstract issues of law.”

Johnson, 515 U.S. at 317.

The official’s right to immunity turns on two ques-

tions: first, whether the facts presented, taken in the

light most favorable to the plaintiff, describe a violation

of a constitutional right, and second, whether the fed-

eral right at issue was clearly established at the time

that the alleged violation occurred. Pearson v. Callahan, 129

S. Ct. 808, 818-22 (2009); Saucier v. Katz, 533 U.S. 194,

201 (2001). The way that the first inquiry is phrased is

reminiscent of the approach to dismissals under Federal

Rule of Civil Procedure 12(b)(6) or rulings on summary

judgment: the reviewing court takes the record in the

light most favorable to the opponent of the motion

and asks whether the case can proceed. This avoids the

need to resolve disputed issues of fact. The second

inquiry even more obviously involves pure questions

of law. The trick there is to ensure that we are evaluating

the situation at the correct level of specificity. See

Anderson v. Creighton, 483 U.S. 635, 639-40 (1987). When

the district court denies qualified immunity at summary

judgment because the plaintiff’s evidence, if believed by

a trier of fact, would suffice to show a constitutional

violation, and the court concludes that the governing

rule is well established, any appeal must be limited to

the legal underpinnings of the court’s ruling.

Behrens clarified that a district court’s assertion that

factual disputes preclude a defendant’s claim of im-

munity does not itself deprive the court of appeals of

6 No. 09-3574

jurisdiction. 516 U.S. at 312-13. An immediate appeal

on stipulated facts may still be possible, or the defendant

may concede for purposes of the appeal that the plain-

tiff’s version of the facts is correct, or he may accept

the district court’s view that there are factual disputes

but take each disputed fact in the light most favorable

to the plaintiff. See Viilo v. Eyre, 547 F.3d 707, 711 (7th

Cir. 2008); Sain v. Wood, 512 F.3d 886, 891 (7th Cir.

2008); Sallenger v. Oakes, 473 F.3d 731, 738 (7th Cir. 2007);

Knox v. Smith, 342 F.3d 651, 656 (7th Cir. 2003); Coady v.

Steil, 187 F.3d 727, 730-31 (7th Cir. 1999).

In a collateral-order appeal like this one, where the

defendants say that they accept the plaintiff’s version

of the facts, we will take them at their word and consider

their legal arguments in that light. If, however, we

detect a back-door effort to contest the facts, we will

reject it and dismiss the appeal for want of jurisdiction.

By the same token, an appeal from a denial of qualified

immunity cannot be used as an early way to test the

sufficiency of the evidence to reach the trier of fact. In

such a case, where there really is no legal question, we

will dismiss the appeal for lack of jurisdiction. See

Viilo, 547 F.3d at 712; McKinney v. Duplain, 463 F.3d 679, 690

(7th Cir. 2006); Via, 469 F.3d at 623-25 & n.2.

Here, as we have already noted, the district court de-

cided that factual disputes prevented resolution of the

officers’ qualified immunity claim. It said, “[A] factual

dispute exists as to whether defendants Officers Clark

and Kaminski had probable cause to arrest plaintiff,” and

it added that “the disputed facts include . . . whether

No. 09-3574 7

Officer Clark had reasonable suspicion to stop Jones.”

Jones v. Clark, 2009 WL 3055366, at *5 (N.D. Ill. Sept. 21,

2009). To a large extent, these conclusions represent

factual determinations that cannot be disturbed in a

collateral-order appeal. Aware of this problem, the

officers now insist that their appeal raises only legal

questions. In their briefs, they have said that they

“concede Plaintiff’s version of the facts of this case” and

they “have adopted the Plaintiff’s version of the facts.”

At argument they repeated, “We’re asking your

honors to accept everything [Jones] says. That’s what

we’re asking in this case.” These statements, we con-

clude, are enough to take the disputed facts off the table

for jurisdictional purposes. We therefore turn to the

merits of the qualified immunity defense, presenting the

facts as Jones recounts them.

II

August 16, 2005, promised to be a busy day for Jones.

She had 500 electrical meters to read for ComEd before

the end of her shift, and by 8 a.m. she was hard at work

in Braidwood. Like many ComEd meter readers, Jones

carried a pair of binoculars with her so that she could

take readings from a distance, in the event that a gate

was locked or a dog was left guarding a yard. A concerned

citizen saw Jones using her binoculars, confused her for

a construction worker photographing houses along the

street, and called the Braidwood Police.

Officers Clark and Kaminski, who were patrolling

separately, responded. Officer Clark drove straight to

8 No. 09-3574

the scene, where he found Jones walking across the

street, dressed in a hat, shirt, pants, and a reflective vest,

all emblazoned with ComEd’s logo. From his car, Officer

Clark asked Jones whether she was reading meters, and

she said that she was. Within three minutes of responding

to the 911 call, Officer Clark radioed Officer Kaminski

and his dispatcher to explain that Jones was a ComEd

worker. Thirty seconds later, Officer Kaminski radioed in.

He had stopped to talk with the person who had called

the police, and Officer Kaminski too confirmed that Jones

was reading meters.

Surprisingly, that did not end the investigation.

Officer Clark asked Jones whether she would speak

with him for a moment. Jones agreed to do so. Officer

Clark parked his car, approached Jones, and explained

that there had been a complaint. Jones gave Officer Clark

two ComEd identification cards. Each displayed the

ComEd logo and Jones’s photograph on the front; one

gave Jones’s full name and her ComEd employee

number; and the other said “FIELD IDENTIFICATION”

and “Christina A.” Jones commented that her driver’s

license was in her car, which was parked a few blocks

away. After Officer Clark explained that a resident was

concerned that someone was taking photographs of

houses, Jones realized that her binoculars must have

caused the confusion and she showed them to Officer

Clark, explaining why she used them.

Then Jones turned to walk away. Officer Clark stopped

her, asking, “What’s the rush?” Jones explained that she

was in a hurry because she had a tremendous amount of

No. 09-3574 9

work to finish before the end of the day. Officer Clark, still

unsatisfied, asked Jones for her date of birth. As the

defendants ultimately conceded at oral argument, during

the course of this exchange Jones was not free to leave.

Jones asked why Officer Clark needed the additional

information and accused him of harassing her. Then

she took a few steps away from Officer Clark, took out

her cell phone, and dialed her supervisor. Officer Clark

radioed to Officer Kaminski that Jones was refusing

to cooperate.

Moments later, Officer Kaminski arrived and saw Jones

standing with her phone to her ear, three feet away

from Officer Clark. Officer Kaminski was irate. He

screamed at Jones as he approached and demanded to

know whether she had given Officer Clark the informa-

tion he needed. Jones said that she had, and Officer

Kaminski responded, “No, you didn’t. Do you want to

go to jail?” Jones naturally said no, but it was too late.

Officer Kaminski knocked Jones’s cell phone from

her hand, pulled her arms behind her back, put her in

handcuffs, and then threw her against Officer Clark’s

police car. As Officer Kaminski patted Jones down,

Jones said, “[T]his is harassment . . . . [T]his is happening

because I am black in Braidwood.”

Officers Clark and Kaminski took Jones to the police

station for booking. Officer Kaminski continued to act

abusively toward Jones once they arrived there. At one

point, he mocked Jones’s actions and things she had

said, mimicking her voice and adding, “[Y]ou wanted to

make it racial out there . . . . [N]ow it’s racial.” Jones was

10 No. 09-3574

charged with obstructing a peace officer. She was

released on bond that day. The charge had been pending

for more than two years when it was terminated with a

directed verdict for Jones.

III

As we mentioned, Officers Clark and Kaminski are

entitled to immunity if their conduct did not violate

clearly established constitutional rights of which a rea-

sonable person would have known. Harlow, 457 U.S. at

818. The Supreme Court has broken this down into

two central questions: whether the officers violated

Jones’s constitutional rights and whether the rights they

allegedly violated were clearly established at the time

the incident occurred. We may address these questions

in any order. Pearson, 129 S. Ct. at 818-22. This case is

somewhat unusual in that there is no serious dispute

about the second question. The contours of the constitu-

tional right that the officers allegedly violated here—

the right to be free from arrest without probable cause—

were clearly established when the events in question

took place. Sornberger v. City of Knoxville, 434 F.3d 1006,

1013 (7th Cir. 2006) (citing Beck v. Ohio, 379 U.S. 89, 91

(1964)). In addition, it was well known at the time that

an officer’s decision to perform an investigatory stop

must be justified by reasonable suspicion—that is, “by

some objective manifestation that the person stopped is,

or is about to be, engaged in criminal activity.” United

States v. Cortez, 449 U.S. 411, 417 (1981). Accordingly,

the only question before us is whether, under Jones’s

No. 09-3574 11

version of the facts, Officers Clark and Kaminski

violated these clearly established rights.

A

Officer Clark did not violate the Constitution by asking

Jones what she was doing. So long as communication

between an officer and a citizen remains consensual,

the Fourth Amendment is not implicated. Florida v.

Bostick, 501 U.S. 429, 433-34 (1991); Gentry v. Sevier, 597

F.3d 838, 846-47 (7th Cir. 2010). But the officers concede

that their stop went beyond consensual questioning and

that Jones was not free to go. When an encounter shifts

from consensual dialogue to an investigatory stop, the

officer must be able to point to specific facts that give

rise to a reasonable suspicion that the person stopped is

involved in criminal activity. Terry v. Ohio, 392 U.S. 1, 30

(1968); United States v. Vega, 72 F.3d 507, 515 (7th Cir.

1995). The investigatory stop must be “justified at its

inception, and . . . reasonably related in scope to the

circumstances which justified the interference in the

first place.” Hiibel v. Sixth Judicial Dist. Court of Nevada,

542 U.S. 177, 185 (2004) (internal quotation marks omitted).

The fatal flaw in Officers Clark and Kaminski’s argu-

ment is that they cannot point to a single circumstance

that could have led them to believe that Jones was

engaged in criminal activity. See Brown v. Texas, 443

U.S. 47, 51-52 (1979). When we asked counsel for the

defendants at oral argument what crime Jones might

have committed, he responded that the officers “thought

she was casing the place.” The officers were thinking, he

12 No. 09-3574

continued, that “crooks occasionally pose as utility

workers to try and get into someone’s home.” While that

may be true, Officer Clark encountered Jones on the

street dressed top to bottom in ComEd gear; she immedi-

ately confirmed that she was reading electrical meters;

and Officer Clark relayed that information to his col-

leagues. Officer Kaminski promptly confirmed this fact

with the very resident who had placed the 911 call. Jones

also forthrightly showed Officer Clark multiple pieces

of identification from her employer and explained why

she had binoculars. None of this would lead any reason-

able person to believe that criminal activity was afoot.

Nor does any federal or state law justify the stop or

support the view that Jones was committing a crime. It

is not a crime to take pictures on the street, and it is not

an offense for a ComEd worker to read electrical meters

using binoculars. This case therefore bears no resem-

blance to one in which an officer responds to a call about

a domestic dispute and detains a person matching the

description of the perpetrator. See Hardick v. City of

Bolingbrook, 522 F.3d 758, 763 (7th Cir. 2008). Objectively

viewed, Jones’s behavior provided no basis for even a

reasonable suspicion that unlawful activity was taking

place, and so it cannot be the basis of a Terry stop. Moya

v. United States, 761 F.2d 322, 325-26 (7th Cir. 1984).

The defendants invoke the Illinois “stop and identify”

statute, 725 ILCS 5/107-14, and the Supreme Court’s

decision in Hiibel, 542 U.S. 177, but neither helps them.

Under the Illinois statute, an officer may request a

person’s name and address “when the officer reasonably

No. 09-3574 13

infers from the circumstances that the person is commit-

ting, is about to commit or has committed an offense . . . .”

725 ILCS 5/107-14. We have recognized that a person

refusing to comply with this law can be arrested for

obstructing a peace officer. Cady v. Sheahan, 467 F.3d 1057,

1063 n.8 (7th Cir. 2006). In Hiibel, the Supreme Court

held that it did not violate the Fourth Amendment for

an officer to stop a citizen, request identification, and

arrest the citizen for failing to comply with Nevada’s

stop and identify statute after the citizen refused to

identify himself. 542 U.S. at 185-89. Integral to Hiibel’s

holding, however, was that there was “no question that

the initial stop was based on reasonable suspicion.” Id. at

184. Indeed, the premise of the Illinois law, just like the

Nevada law at issue in Hiibel, is that the initial stop is

justified under Terry v. Ohio. Where an initial stop is not

based on specific, objective facts that establish rea-

sonable suspicion, Brown controls rather than Hiibel, and

the existence of a stop-and-identify statute is irrelevant.

The facts as Jones describes them demonstrate that

Officers Clark and Kaminski violated Jones’s Fourth

Amendment rights when they stopped and detained

her, and so the officers are not entitled to qualified im-

munity on that claim.

B

Jones also complains that her arrest violated the

Fourth Amendment. Here, the officers are entitled to

qualified immunity only if they had probable cause to

arrest her or if a reasonable officer in their position could

14 No. 09-3574

mistakenly have believed that probable cause existed.

Humphrey v. Staszak, 148 F.3d 719, 725 (7th Cir. 1998).

Our conclusion that the officers had no reason to be

suspicious of Jones in the first place forecloses almost

any attempt they might make to show that they had

arguable probable cause to arrest Jones. Nonetheless,

the officers claim that they had (or were reasonably

mistaken in their belief that they had) probable cause to

arrest Jones for both obstructing a peace officer, the

crime Jones was ultimately charged with, and disorderly

conduct. Probable cause depends on state criminal law,

Michigan v. DeFillippo, 443 U.S. 31, 36 (1979), and it exists

when a reasonable officer with all the knowledge of

the officers on the scene would have believed that the

suspect committed an offense defined by state law,

Wagner v. Washington County, 493 F.3d 833, 836 (7th Cir.

2007) (per curiam).

Officers Clark and Kaminski’s argument that they

had probable cause to arrest Jones for disorderly conduct

is so underdeveloped that it could be considered waived

or at least forfeited. See Spath v. Hayes Wheels Int’l-Ind.

Inc., 211 F.3d 392, 397 (7th Cir. 2000). Forfeited or not,

however, it is impossible to conclude from Jones’s

version of events that any police officer could have

thought that Jones “knowingly . . . [did] any act in such

unreasonable manner as to alarm or disturb another and

to provoke a breach of the peace,” which is the defini-

tion of disorderly conduct in Illinois. 720 ILCS 5/26-1(a).

To the contrary, Jones handled herself professionally at

every step. Even when she felt she was being harassed, her

response was to step a short distance away from Officer

No. 09-3574 15

Clark to call her supervisor. The only disorderly conduct

evident in this case came from Officers Clark and

Kaminski.

The officers’ argument that they had probable cause

to arrest Jones for obstructing a peace officer deserves

more attention, but it fails as well. A person is guilty

of obstructing a peace officer when she “knowingly

resists or obstructs the performance by one known to

the person to be a peace officer . . . of any authorized act

within his official capacity . . . .” 720 ILCS 5/31-1(a). As

we noted, after Hiibel an officer may arrest a person

for obstructing a peace officer if that person fails to

comply with the Illinois stop and arrest statute, but only

if the initial stop was justified by reasonable suspicion

of criminal activity. We have already explained why

Officers Clark and Kaminski had no reason to be suspi-

cious of Jones, and so the Illinois stop and identify

statute cannot be the source of arguable probable cause

for Jones’s arrest. Moreover, our past cases show why

actions like Jones’s do not supply probable cause to

arrest a suspect for obstructing a peace officer. See

Williams v. Jaglowski, 269 F.3d 778, 781-83 (7th Cir. 2001).

The Supreme Court of Illinois explained in People v.

Raby, 240 N.E.2d 595, 599 (1968), that the Illinois statute

prohibiting the obstruction of a peace officer does not

criminalize “mere argument with a policeman”; instead,

there must be “some physical act which imposes an

obstacle which may impede, hinder, interrupt, prevent or

delay the performance of the officer’s duties,” id. Jones’s

case is indistinguishable from the situation we con-

fronted in Williams:

16 No. 09-3574

The defendants do not point to any physical act [the

plaintiff] committed that would satisfy the require-

ment set out in Raby. Moreover . . . [the plaintiff] did

not engage in any physical act that in any way hin-

dered or impeded [the police]. Her only offense

was . . . to refuse to supply . . . her date of birth, which

would not constitute obstruction as the Illinois Su-

preme Court defined that offense in Raby.

269 F.3d at 782. On the record as it now stands, Jones’s

actions did not supply arguable probable cause to

arrest her for obstructing a peace officer. Accordingly,

Officers Clark and Kaminski are not entitled to quali-

fied immunity from Jones’s false arrest claim.

IV

The doctrine of qualified immunity draws a balance

between the desire to compensate those who have

been injured by official misconduct and the need to

protect public officials who are exercising discretion

in their day-to-day jobs. Harlow, 457 U.S. at 819. By pro-

tecting officials from the disruption that could result

from fear of liability or insubstantial lawsuits, qualified

immunity “acts to safeguard government, and thereby

to protect the public at large, not to benefit its agents.”

Wyatt v. Cole, 504 U.S. 158, 168 (1992). The need to protect

an official’s ability to carry out important duties is the

driving force behind the Supreme Court’s recognition of

qualified immunity as an entitlement to avoid trial and

its corresponding decision to make denials of qualified

immunity immediately appealable. See Mitchell, 472 U.S.

No. 09-3574 17

at 525-30. Officers Clark and Kaminski took advantage

of this framework in their appeal. Playing by the rules,

they accepted Jones’s version of events. But that version

of events (to which they will not be bound as the case

progresses) reveals nothing but a blatant and embar-

rassing abuse of police power. The district court correctly

concluded that Jones’s suit is not blocked by qualified

immunity; we therefore A FFIRM its order.

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