Miguel Gutierrez v. Michael Kermon

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-2934

M IGUEL G UTIERREZ,

Plaintiff-Appellee,

v.

M ICHAEL R. K ERMON,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 1:11-cv-0185-TWP-DML—Tanya Walton Pratt, Judge.

A RGUED JANUARY 17, 2013—D ECIDED JULY 12, 2013

Before M ANION and T INDER, Circuit Judges, and L EE,

District Judge. Œ

T INDER, Circuit Judge. Miguel Gutierrez brought this

action under 42 U.S.C. § 1983 against Indianapolis Metro-

politan Police Officer Michael R. Kermon (and others not

involved in this appeal), alleging, among other things, that

Œ

The Honorable John Z. Lee of the Northern District of

Illinois, sitting by designation.

2 No. 12-2934

Kermon trampled his fourth amendment rights by

seizing him without reasonable suspicion or probable

cause. Officer Kermon moved for summary judgment,

arguing that he had not violated Gutierrez’s rights or, if

he had, that he was nevertheless entitled to qualified

immunity. The district judge concluded that Kermon

had reasonable suspicion to make an investigative de-

tention but that genuine issues of material fact pre-

cluded a finding of qualified immunity on the issue of

probable cause. Officer Kermon brought this inter-

locutory appeal challenging the district court’s denial

of qualified immunity on the issue of probable cause.

Because Kermon’s argument depends on a disputed

fact, we dismiss this appeal for want of jurisdiction.

I

The parties agree that shortly before 10 p.m. on March 8,

2009, Officer Kermon arrested Gutierrez and charged

him with public intoxication and resisting arrest under

Indiana law, but they offer drastically different narra-

tives concerning almost all other events of that evening.

According to Gutierrez, he was walking home from

work, minding his own business, when Officer Kermon,

who never identified himself as a police officer, stopped

him at gunpoint, pepper sprayed him, placed him in

handcuffs, delivered a few gratuitous kicks to his torso,

and directed a racially derogatory comment at him.

Officer Kermon, on the other hand, says that Gutierrez

was a belligerent drunkard who was unsteady on his feet,

yelled at Kermon, assumed an aggressive fighting stance

No. 12-2934 3

as Kermon approached to ask him a question, and

then actively resisted being placed in handcuffs. Not-

withstanding these drastically different accounts, given

the posture of this appeal, we must view the facts as

assumed by the district court when it denied summary

judgment or as asserted by Gutierrez, the nonmovant.

See, e.g., White v. Gerardot, 509 F.3d 829, 833 (7th Cir. 2007).

Around 9:30 p.m. on the night of the arrest, Gutierrez,

a commercial truck driver, began walking toward his

home after completing maintenance work on his truck.

See Appellee’s App. at 74, 126, 128, 130. Gutierrez was

wearing his dirty work clothes, had a somewhat

disheveled appearance, and had irritated eyes due to

contact with debris as he worked. Id. at 37, 85, 114. It was

dark outside and Gutierrez lived in a dangerous, high-

crime area, so before setting off toward home he armed

himself with a golf club to fend off potential muggers. Id.

at 19, 25.

Meanwhile, around 9:40 p.m., Officer Kermon re-

sponded to a dispatch report that two African-American

men were chasing and trying to fight a third individual

in front of a house in Gutierrez’s neighborhood. Id. at

113, 116. Kermon approached the house in his marked

squad car, creeping slowly down the street with his

headlights off because he was unsure of what dangers, if

any, were lurking, and at some point he observed

Gutierrez walking on the sidewalk near the entryway of

the house. Id. at 24, 29-30, 79, 81, 113, 116; Appellant’s

Supp. App. at 47-48, 62-63.

Gutierrez observed a vehicle (not Kermon’s) with its

headlights on parked along the west side of the street

4 No. 12-2934

facing him, and to avoid any potential trouble he

decided to cross over to the east side of the street. Id. at 17-

23, 25. As he crossed the street, Gutierrez observed a

car creeping slowing toward him, at which point he

paused, turned around, and returned to the sidewalk

on the west side of the street. Id. at 22-25. Unbeknownst

to Gutierrez, the car he had observed approaching was

Officer Kermon’s squad car; Gutierrez could not see

that the car was a police car because it was dark outside,

the squad car’s headlights were off, and a row of cars

parked along the street partially obstructed his view. Id.

at 17-18, 21-25.

The following events unfolded rapidly. Officer Kermon

could tell that Gutierrez was not African-American,

hence not one of the two suspected assailants mentioned

in the dispatch report, but believing that Gutierrez may

have been the victim of the reported incident, Kermon

stopped his car, exited, and yelled out to Gutierrez,

“Hey, you, stop right there! Hey, you, stop!” Id. at 26, 83,

113, 116; Appellant’s Supp. App. at 64-65. Though he

heard these statements, Gutierrez continued walking

because he did not recognize the voice and did not know

Kermon was a police officer (it is undisputed that Kermon

never identified himself as such and never activated

the emergency lights on his squad car). Appellee’s App.

at 26-27, 33-34. Officer Kermon began approaching

Gutierrez, at which point he observed that Gutierrez’s

clothes were dirty and disheveled, that his hair was in

disarray (or as Kermon described it, “not neatly combed”),

that he appeared agitated, and that he was carrying a

golf club. Appellant’s Supp. App. at 66-67. (Officer Kermon

No. 12-2934 5

testified that Gutierrez was animated and aggressive

and also that he was swaying and unsteady, id. at 66-67,

93, but Gutierrez denies this.)

Because Gutierrez had not complied with his com-

mands, Officer Kermon unholstered his gun, ran in front

of Gutierrez, and stopped him at gunpoint while shining

a flashlight in his face. Id. at 44-46, 48-49, 67-69;

Appellee’s App. at 26-27, 30-31, 87-88. Officer Kermon

ordered Gutierrez to get on the ground, to raise his

hands, and to drop the golf club. Appellee’s App. at 27, 32-

33, 114, 116. Gutierrez, still not aware that he was being

confronted by a police officer, initially hesitated. Id. at 27-

35. But then Officer Kermon lowered his flashlight

and Gutierrez finally caught a glimpse of Kermon’s badge

and uniform; Gutierrez immediately discarded the golf

club. Id. at 28-30; Appellant’s Supp. App. at 46-49. As

Gutierrez tossed the golf club aside, he began pointing

toward his house and saying, “Hey, what’s going on?

I live right there.” Appellee’s App. at 28. But before

Gutierrez could say anything else, Officer Kermon

sprayed him in the face with pepper spray. Id. at 28-30. It

was also around this time, after the golf club had been

discarded but before the pepper spray had been

deployed, that Kermon observed that Gutierrez’s eyes

were red and glossy. See id. at 88-89.

Gutierrez was handcuffed with the help of a second

officer that had arrived on scene. Id. at 38-42. Officer

Kermon then gratuitously kicked Gutierrez in the

abdomen twice, and when Gutierrez asked whether

Kermon could get away with it, Officer Kermon allegedly

6 No. 12-2934

said, “Of course, I can do whatever I want to you, you

filthy Mexican.” Id. at 42-46, 49-50. Gutierrez was then

taken to jail and charged with public intoxication and

resisting arrest.

The charges were ultimately dropped after a state

magistrate judge ruled that the initial stop of

Gutierrez had been unlawful. Gutierrez subsequently

brought this action under 42 U.S.C. § 1983 against

Officer Kermon and others (though this appeal concerns

only Officer Kermon), asserting several federal and sup-

plemental state-law claims. As relevant here, Gutierrez

alleged that Officer Kermon violated the Fourth Amend-

ment by seizing him without reasonable suspicion

in violation of Terry v. Ohio, 392 U.S. 1 (1968) (“Terry

claim”), and without probable cause (“false-arrest claim”).

Officer Kermon moved for summary judgment on the

grounds that he had not violated Gutierrez’s rights and,

at the very least, that he was entitled to qualified immu-

nity. The district court granted the motion in part and

denied it in part. Gutierrez v. City of Indianapolis, 886

F. Supp. 2d 984, 1001 (S.D. Ind. 2012). The court granted

summary judgment for Officer Kermon on Gutierrez’s

Terry claim, concluding that Kermon had reasonable

suspicion to make an investigative stop because, from

his viewpoint, Gutierrez was carrying a golf club,

appeared agitated, refused to obey Kermon’s commands,

and was near the residence to which Officer Kermon had

No. 12-2934 7

been dispatched.1 Id. at 993-94. Officer Kermon argued

1

Although it concluded that the initial seizure was justified by

reasonable suspicion, the district court did not consider

whether the initial seizure was “reasonably related in scope to

the circumstances which justified the interference in the first

place.” Terry, 392 U.S. at 20. Even if reasonable suspicion

exists, if an officer uses unreasonably intrusive means to

effectuate a seizure it may be deemed a de facto arrest requiring

probable cause, rather than an investigative detention under

Terry. See, e.g., Dunaway v. New York, 442 U.S. 200, 208-

14 (1979); United States v. Ienco, 182 F.3d 517, 523-24 (7th Cir.

1999); United States v. Novak, 870 F.2d 1345, 1351-53 (7th Cir.

1989) (stopping suspects, neither of whom were believed to be

armed and dangerous, at gunpoint exceeded bounds of Terry

and amounted to full-fledged arrest); cf. Ramos v. City of

Chicago, No. 10-3425, 2013 WL 2264346, at *4 (7th Cir. May 24,

2013) (“The proliferation of cases in this court in which ‘Terry’

stops involve handcuffs and ever-increasing wait times in

police vehicles is disturbing, and we would caution law enforce-

ment officers that the acceptability of handcuffs in some

cases does not signal that the restraint is not a significant

consideration in determining the nature of the stop.”). The

fact that Gutierrez brought a claim of false arrest in addition

to his Terry claim does not necessarily render this an

irrelevant point. The viability of a false-arrest claim turns on

whether there was probable cause to justify the arrest, see, e.g.,

Abbott v. Sangamon County, Ill., 705 F.3d 706, 714 (7th Cir. 2013),

and the existence of probable cause depends in large part on

the facts and circumstances known to the officer at the time

of arrest, see Ornelas v. United States, 517 U.S. 690, 696 (1996).

Here, it appears that certain observations were made after the

(continued...)

8 No. 12-2934

that he also had probable cause to arrest for public intoxi-

cation because, at the time of the arrest, he had observed

that Gutierrez had red eyes, had a disheveled ap-

pearance, and was swaying and having trouble main-

taining his balance. Id. at 994. The district court, though,

found that it could not make a finding of probable

cause because Gutierrez denied swaying or shifting

his weight, did not smell of alcohol, and had not had

time to explain his disheveled appearance and red eyes,

as he had been sprayed immediately with pepper spray.

Id. The court went on to conclude that these factual dis-

putes also precluded a finding of qualified immunity. Id.

at 995. Officer Kermon appeals the denial of qualified

immunity on the false-arrest claim. (Other claims

remain pending before the district court awaiting trial,

including an excessive-force claim and an equal protec-

tion claim.)

II

The Fourth Amendment prohibits unreasonable sei-

zures. To be deemed reasonable, a warrantless arrest made

in public must be supported by probable cause, United

States v. Watson, 423 U.S. 411, 414-24 (1976), and so the

1

(...continued)

initial seizure, which means that if the initial seizure was the

arrest, and not merely an investigatory detention, then those

observations would not factor into the probable-cause in-

quiry. Given our disposition of this appeal, we need not address

these issues.

No. 12-2934 9

existence of probable cause is an absolute defense to

a § 1983 claim for false arrest, Mustafa v. City of Chicago,

442 F.3d 544, 547 (7th Cir. 2006). (The existence of

probable cause is necessary but not sufficient for an

arrest to be reasonable; the reasonableness of an arrest

depends both on its justification and the manner in which

it was effectuated. See Tennessee v. Garner, 471 U.S. 1, 8

(1985).) Probable cause to arrest exists if the totality of

the circumstances known to the officer at the time of the

arrest would warrant a reasonable person in believing

that the arrestee had committed, was committing, or

was about to commit a crime. Abbott v. Sangamon County,

Ill., 705 F.3d 706, 714 (7th Cir. 2013); see also Maryland v.

Pringle, 540 U.S. 366, 370-71 (2003). It is a practical,

commonsense standard that requires only the type of

fair probability on which reasonable people act. See

Florida v. Harris, 133 S. Ct. 1050, 1055-56 (2013); Hanson

v. Dane County, Wis., 608 F.3d 335, 338 (7th Cir. 2010).

Based as it is on probabilities rather than hard cer-

tainties, the probable-cause standard inherently allows

room for reasonable mistakes. Brinegar v. United States,

338 U.S. 160, 176 (1949). Qualified immunity affords an

even greater level of protection by shielding officers

from “suit for damages if ‘a reasonable officer could

have believed [the arrest] to be lawful, in light of clearly

established law and the information the [arresting]

officers possessed.’ ” Hunter v. Bryant, 502 U.S. 224, 227

(1991) (per curiam) (second alteration in original)

(quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987));

see also, e.g., Pearson v. Callahan, 555 U.S. 223, 231 (2009)

(“The doctrine of qualified immunity protects govern-

10 No. 12-2934

ment officials ‘from liability for civil damages insofar

as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable

person would have known.’” (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982))). In this context, quali-

fied immunity provides shelter for officers who have

“arguable probable cause” to arrest—i.e., those officers

that reasonably but mistakenly believe they have

probable cause. See Abbott, 705 F.3d at 714-15, 723-24;

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

Though they may appear to be the same, the probable-

cause and arguable-probable-cause inquiries are dif-

ferent. Fleming v. Livingston County, Ill., 674 F.3d 874,

880 (7th Cir. 2012). An arrest without probable cause is

a violation of a constitutional right, whereas an arrest

without arguable probable cause is a violation of a

“clearly established” constitutional right. See Hunter,

502 U.S. at 227; McComas v. Brickley, 673 F.3d 722, 725

(7th Cir. 2012).

Officer Kermon contends that the district court erred

in denying summary judgment on his defense of

qualified immunity with regard to Gutierrez’s false-

arrest claim. He concedes that many factual disputes

exist, but he argues that there are six “undisputed” facts

that entitle him to qualified immunity notwithstanding

the chaotic state of the record. Those six facts are

(1) Gutierrez’s unsteady gait; (2) his dirty, disheveled

appearance; (3) his possession of a golf club; (4) his ap-

parent agitation; (5) his lack of cooperation; and (6) his

red, watery eyes. Officer Kermon maintains that, on

the basis of these six facts, a reasonable person in his

No. 12-2934 11

position reasonably, even if mistakenly, could have

believed that there was probable cause to arrest

Gutierrez for committing the crime of public intoxication

under Indiana law, see Ind. Code § 7.1-5-1-3. We are

unable to reach the merits of Kermon’s argument

because we lack jurisdiction over this interlocutory appeal.

As a general matter, the denial of summary judgment

is not appealable because it is not a “final decision” for

purposes of 28 U.S.C. § 1291. Ortiz v. Jordan, 131 S. Ct. 884,

891 (2011). But an order denying qualified immunity on

summary judgment often is immediately appealable on

the basis that it is a final decision on the defendant’s

right not to stand trial and, as such, a collateral order.

Mitchell v. Forsyth, 472 U.S. 511, 524-30 (1985); see also

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546

(1949) (describing narrow class of collateral orders). This

is so even though the defendant will be required to go

to trial on other claims, for the “right to immunity is a

right to immunity from certain claims, not from litiga-

tion in general.” Behrens v. Pelletier, 516 U.S. 299, 312

(1996) (emphasis omitted). That said, we do not have

jurisdiction to review an order denying qualified

immunity on summary judgment if the issue on appeal

is whether the record contains sufficient evidence to

create a “genuine” issue of material fact. See Johnson v.

Jones, 515 U.S. 304, 313-20 (1995); see also Elliott v. Thomas,

937 F.2d 338, 341-43 (7th Cir. 1991) (no jurisdiction

over appeal in which officers simply denied that they

injured the plaintiff).

Gutierrez argues that, under Johnson, we lack jurisdic-

tion over this appeal because the district court denied

12 No. 12-2934

summary judgment on the basis that there are genuine

factual disputes between the parties. Gutierrez over-

reads Johnson. A district court’s finding that there are

genuine issues of material fact “does not always

preclude appellate review.” Sallenger v. Oakes, 473 F.3d

731, 738 (7th Cir. 2007). The Supreme Court has ex-

plained that the “[d]enial of summary judgment often

includes a determination that there are controverted

issues of material fact, and Johnson surely does not

mean that every such denial of summary judgment is

nonappealable. Johnson held, simply, that determina-

tions of evidentiary sufficiency at summary judgment

are not immediately appealable merely because they

happen to arise in a qualified-immunity case . . . .” Behrens,

516 U.S. at 312-13 (internal citation omitted). Thus,

Johnson prohibits us from reviewing “the record to deter-

mine whether the district court erred in finding that a

genuine issue of material fact exists,” Via v. LaGrand, 469

F.3d 618, 624 (7th Cir. 2006), and so “we may not make

conclusions about which facts the parties ultimately

might be able to establish at trial,” Leaf v. Shelnutt, 400

F.3d 1070, 1078 (7th Cir. 2005). But Johnson does not pro-

hibit us from considering the abstract legal question of

whether a given set of undisputed facts demonstrates a

violation of clearly established law. Behrens, 516 U.S. at

313; Leaf, 400 F.3d at 1078. In reviewing this purely

legal question, we take the facts as the district court

assumed them when denying summary judgment,

Johnson, 515 U.S. at 319, or in a light most favorable to

the plaintiff, the nonmovant, Knox v. Smith, 342 F.3d 651,

656 (7th Cir. 2003).

No. 12-2934 13

Officer Kermon argues that he is entitled to qualified

immunity notwithstanding the many factual disputes

identified by the district court. At first blush, Kermon’s

position appears to take this case outside the scope

of Johnson. We are, however, troubled by Kermon’s

reliance on Gutierrez’s allegedly unsteady gait as

one of the purportedly “undisputed” facts. Gutierrez

vehemently denies that he was unsteady, and he argues

vociferously that the district court found this to be

a genuine factual dispute. We agree with Gutierrez’s

characterization of the district court’s order.

One of the reasons the district judge gave in support of

her decision was that there is a factual dispute as to

whether Gutierrez was swaying or unsteady on his feet.

Officer Kermon says he is not challenging this conclu-

sion, but he argues that there is undisputed evidence

that Gutierrez walks with a limp due to a permanent leg

injury suffered some time ago. And, according to

Kermon, the district court found a factual dispute only as

to whether Gutierrez was swaying after being stopped,

not as to whether he walked with an unsteady gait before

he was stopped. Yet a close reading of the district court’s

opinion indicates otherwise. The court explained, “Officer

Kermon observed that Mr. Gutierrez . . . had an issue

with balancing himself as he walked, giving the ap-

pearance that he swayed,” but it found this to be

disputed because Gutierrez “denie[d] that he was

swaying or shifting his weight in front of Officer Kermon.”

886 F. Supp. 2d at 994 (emphasis added). It is not

apparent from this that the district judge drew the fine

distinction Kermon urges, and we see nothing else in the

14 No. 12-2934

district court’s opinion indicating that it assumed

Gutierrez had been walking with an unsteady gait

before being stopped. Indeed, the most natural reading

of the quoted language is that the district court con-

sidered Kermon’s argument on this point and rejected it.

Kermon fares no better if we presume for the sake

of argument that the district court was simply silent on

the issue, in which case we might have license to engage

in a somewhat limited review of the record. See Johnson,

515 U.S. at 319 (where a district court does not clearly

state the facts on which it bases its legal determination

“a court of appeals may have to undertake a cumber-

some review of the record to determine what facts

the district court, in the light most favorable to the

nonmoving party, likely assumed”); Washington v.

Haupert, 481 F.3d 543, 548-50 (7th Cir. 2007) (explaining

that in certain circumstances it may be appropriate for

an appellate court to examine all undisputed evidence in

the record, even evidence not considered by the district

court); accord Lockridge v. Bd. of Trs. of Univ. of Ark., 315

F.3d 1005, 1008 (8th Cir. 2003) (en banc); Winfield v. Bass,

106 F.3d 525, 534-35 (4th Cir. 1997) (en banc).

While Gutierrez testified that he walks with a limp and

occasionally requires a cane, Appellant’s Supp. App. at 32,

there is no indication as to how pronounced a limp he

has or how severe it was on the night of the arrest (and

that he occasionally requires a cane suggests that the

severity of his limp varies). Kermon testified that he

observed Gutierrez walking but did not say that Gutierrez

walked unsteadily. Id. at 63, 65. Thus, to assume that

Gutierrez walked with an unsteady gait that night

No. 12-2934 15

would require drawing an inference in Kermon’s

favor, when all inferences must be drawn in Gutierrez’s

favor, see, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986).

So what does this mean for purposes of our jurisdiction?

In accordance with Johnson, this court has held that an

appellant challenging a district court’s denial of qualified

immunity effectively pleads himself out of court by

interposing disputed factual issues in his argument. See

Viilo v. Eyre, 547 F.3d 707, 712 (7th Cir. 2008); see also

Jones v. Clark, 630 F.3d 677, 680 (7th Cir. 2011) (“In a

collateral-order appeal . . ., 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.”); cf. Ne. Rural

Electric Membership Corp. v. Wabash Valley Power Ass’n,

707 F.3d 883, 893 (7th Cir. 2013) (party asserting juris-

diction has burden of establishing it). Even if the

appellant disclaims any attempt to challenge the district

court’s conclusion that genuine factual disputes exist,

we lack jurisdiction when his argument on appeal

depends upon and is inseparable from disputed facts.

See White v. Gerardot, 509 F.3d 829, 835-36 (7th Cir. 2007);

McKinney v. Duplain, 463 F.3d 679, 688-90 (7th Cir. 2006);

Clash v. Beatty, 77 F.3d 1045, 1048 (7th Cir. 1996). This is

so because one of the conditions for bringing an appeal

under the collateral-order doctrine is that the appealed

order must be separate from the merits of the case. See

Johnson, 515 U.S. at 314; Mitchell, 472 U.S. at 527-29; Levan

16 No. 12-2934

v. George, 604 F.3d 366, 370 (7th Cir. 2010). Yet we also

have acknowledged that the mere mention of disputed

facts in an otherwise purely legal argument is not fatal,

and we have held accordingly that jurisdiction exists

where the appellant mentions factual disputes but the

legal argument is not dependent on those factual

disputes—i.e., where the legal and factual arguments

are separable. See White, 509 F.3d at 836 (“[T]he key

inquiry is whether the appellant’s arguments neces-

sarily depend upon disputed facts. If an argument is not

dependent upon disputed facts, the court simply can

disregard mention of the disputed facts and address

the abstract issue of law without running afoul of John-

son.”); see also Sallenger, 473 F.3d at 738-39 (appellate

jurisdiction existed even where appellants raised

factual issues toward the end of their brief).

The present case falls close to the hazy line between

appealable and nonappealable orders established by

Johnson. Kermon undoubtedly relies on a disputed fact

throughout his argument, yet he also relies on other,

undisputed facts. It might be argued that we should

simply ignore the disputed fact and consider whether

the truly undisputed facts establish that Kermon is

entitled to qualified immunity. After all, there is no

question that jurisdiction would be proper if Kermon

had brought this appeal claiming that he was entitled

to qualified immunity based solely on those five undis-

puted facts. But Kermon has based his argument on all

six of the purportedly “undisputed” facts, claiming that

all six of those facts considered together gave him

arguable probable cause to arrest Gutierrez for public

No. 12-2934 17

intoxication; he has not argued that if Gutierrez’s

allegedly unsteady gait is indeed disputed he would

nevertheless be entitled to qualified immunity.

Moreover, it is evident that Kermon’s argument is

entirely dependent on the disputed fact of Gutierrez’s

allegedly unsteady gait because the five remaining facts,

which the district judge found to be truly undisputed,

come nowhere close to establishing arguable probable

cause. At the time of Gutierrez’s arrest, Indiana Code

section 7.1-5-1-3 provided that “[i]t is a Class B misde-

meanor for a person to be in a public place or a place

of public resort in a state of intoxication caused by the

person’s use of alcohol or a controlled substance (as

defined in IC 35-48-1-9).” Moore v. State, 949 N.E.2d 343,

344 (Ind. 2011), superseded by statute, 2012 Ind. Legis. Serv.

P.L. 117-2012, § 1. “Intoxication” essentially means that

a person is under the influence of alcohol and/or a con-

trolled substance to the extent that his thoughts or

actions are impaired or that he has lost normal control

of his faculties. See Ind. Code § 9-13-2-86 2 ; Curtis v.

2

The public-intoxication statute does not define “state of

intoxication,” but the Indiana Court of Appeals has borrowed

the definition of intoxication from the operating-while-intoxi-

cated statute, see Woodson v. State, 966 N.E.2d 135, 142 (Ind. Ct.

App.), trans. denied, 969 N.E.2d 86 (Ind. 2012); Fought v. State,

898 N.E.2d 447, 451 (Ind. Ct. App. 2008), and we see no

apparent reason to believe that the Indiana Supreme Court

would disagree with this approach, see ADT Sec. Servs., Inc. v.

Lisle-Woodridge Fire Prot. Dist., 672 F.3d 492, 498 (7th Cir. 2012)

(continued...)

18 No. 12-2934

State, 937 N.E.2d 868, 873-74 (Ind. Ct. App. 2010); see also

Perkins v. State, 812 N.E.2d 836, 841 (Ind. Ct. App. 2004)

(intoxication can be established by showing impair-

ment). There is no litmus test for determining whether a

person meets this definition, but common indicia of

intoxication include “(1) the consumption of [a]

significant amount of alcohol; (2) impaired attention

and reflexes; (3) watery or bloodshot eyes; (4) the odor

of alcohol on the breath; (5) unsteady balance; (6) failure

of field sobriety tests; [and] (7) slurred speech.” Fought

v. State, 898 N.E.2d 447, 451 (Ind. Ct. App. 2008) (citing

Fields v. State, 888 N.E.2d 304, 307 (Ind. Ct. App. 2008)).

These are merely indicia of impairment and not all of

them need to be present for a person to be deemed im-

paired (and thus intoxicated). See, e.g., Woodson, 966

N.E.2d at 142 (sufficient evidence for conviction where

defendant smelled of alcohol, had slurred speech, and

was abrasive toward officers, even though he had no

difficulty standing or walking).3

2

(...continued)

(“In the absence of guiding decisions by the state’s highest

court, we consult and follow the decisions of intermediate

appellate courts unless there is a convincing reason to

predict the state’s highest court would disagree.” (citing Fid.

Union Trust Co. v. Field, 311 U.S. 169, 177-78 (1940))).

3

Of course, an arrest may be supported by probable cause that

the arrestee committed any offense, regardless of which crime

was charged or which crime the officer thought had been

committed, Devenpeck v. Alford, 543 U.S. 146, 155 (2004); Abbott,

(continued...)

No. 12-2934 19

The five actually undisputed facts—namely, Gutierrez’s

disheveled appearance, possession of a golf club, ap-

parent agitation, lack of cooperation, and red eyes—do

not individually or in the aggregate suggest that

3

(...continued)

705 F.3d at 715, and so the existence of arguable probable

cause to arrest for any offense is a sufficient basis for qualified

immunity. But we discuss only public intoxication because

that is the single potential offense that Kermon has identified

either here or below in his qualified-immunity presentation.

See Fox v. Hayes, 600 F.3d 819, 837-38 (7th Cir. 2010)

(defendants waived their Devenpeck argument that they had

probable cause to arrest for other crimes by failing to raise

the issue until a reply brief to their motion for a new trial); cf.

Jackson v. Parker, 627 F.3d 634, 640 (7th Cir. 2010) (declining

to review § 1983 plaintiff’s unreasonable-detention theory

because the only argument presented to the district court was

his claim for false arrest, so neither the district court nor

the defendants had a fair opportunity to address the

unreasonable-detention theory); Luellen v. City of East Chicago,

350 F.3d 604, 612 nn.4 & 5 (7th Cir. 2003) (arguments not

raised on appeal are waived). Nor can we imagine any other

criminal charge that Gutierrez’s reported (and undisputed)

behavior could have supported. If there are such offenses,

Kermon should have to suggest them to get the benefit of

qualified immunity. We have repeatedly said that “[j]udges

are not like pigs, hunting for truffles buried in briefs,” United

States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (per curiam), or

in the record, see, e.g., Gross v. Town of Cicero, Ill., 619 F.3d

697, 702 (7th Cir. 2010), so it stands to reason that we will not

go truffle hunting through all of the laws applicable in

Indiana to identify an offense to fit Gutierrez’s conduct.

20 No. 12-2934

Gutierrez’s thoughts or actions were impaired or that

he had lost normal control of his faculties. Cf. Hirsch v.

Burke, 40 F.3d 900, 903 (7th Cir. 1994) (probable cause

of intoxication where arrestee had trouble balancing

himself and appeared incoherent, smelled of alcohol,

had bloodshot eyes, and was unable to state his name

or date of birth); United States v. Krzeminski, 878 F. Supp.

1189, 1196 (N.D. Ind. 1995) (probable cause of intoxica-

tion where arrestee smelled of alcohol, inexplicably

had gun sitting in his lap, and acted in an aggressive

manner toward deputy, who had been informed that

at least one occupant of the vehicle was highly intoxi-

cated); Porter v. State, 391 N.E.2d 801, 807 (Ind. 1979)

(probable cause of intoxication where arrestee smelled

of alcohol; was unstable; had watery eyes and slurred

speech; and was uncooperative and hostile toward offi-

cers), disapproved on other grounds by Fleener v. State, 412

N.E.2d 778 (Ind. 1980); Hampton v. State, 468 N.E.2d

1077, 1079-80 (Ind. Ct. App. 1984) (probable cause of

intoxication where arrestee “appeared unstable on his

feet, could not coherently answer the officers’ questions,

and smelled of alcohol”). The only one of these facts

commonly associated with intoxication is red eyes, but

no reasonable officer could believe that the presence of

red eyes without some form of motor or cognitive im-

pairment is indicative of intoxication. Compare United

States v. Tyler, 512 F.3d 405, 411 (7th Cir. 2008) (no reason-

able suspicion of intoxication to stop defendant who

was carrying open container of alcohol on suspicion

of public intoxication because defendant “was not stum-

bling, staggering, wavering, or otherwise unsteady on his

No. 12-2934 21

feet[; h]e was not incoherent when [the officers] ap-

proached; his speech was not slurred[;] and his eyes

were not bloodshot”), with United States v. Lenoir, 318

F.3d 725, 730 (7th Cir. 2003) (officer had reasonable

suspicion of intoxication to stop defendant in high-

crime area who was walking with an unsteady gait,

carrying two firearms, fled after officer identified

himself and ordered defendant to stop, and had

trouble opening the door of the house into which he

fled). If it were otherwise, then allergy sufferers and

anyone who has recently wept, among others, could be

arrested for public intoxication.

Of course, certain behavior can be so extreme and

dangerous that it can be inferred for purposes of

probable cause that it resulted from alcohol or drug

impairment, such as erratic driving leading to the loss of

control of a vehicle and a serious crash, e.g., Smith v. Ball

State Univ., 295 F.3d 763 (7th Cir. 2002); Qian v. Kautz, 168

F.3d 949 (7th Cir. 1999). This is true even if the basis of

the impairment later proves to be something else. See

Smith, 295 F.3d at 766-70 (diabetic seizure); Qian, 168

F.3d at 951-54 (subdural hematoma). But Kermon does

not contend that Gutierrez’s observed behavior was of

that extreme or dangerous nature.

At most, the five truly undisputed facts in the

aggregate rise to the level of reasonable suspicion to

justify a Terry stop so that Officer Kermon could confirm

or dispel his suspicions through some form of reasonable

22 No. 12-2934

investigation.4 But reasonable suspicion is a lower

standard than probable cause. See, e.g., United States v.

4

Though Kermon contends that his encounter with Gutierrez

began as a Terry stop, it does not appear that he undertook

any type of investigation or even asked Gutierrez any

questions; indeed, when Gutierrez requested a breathalyzer

test Kermon refused to administer one. The lack of any investi-

gation would provide further support for the notion,

discussed briefly in footnote 1, supra, that Kermon’s seizure

of Gutierrez was not a Terry stop that evolved into an arrest

but an arrest from the outset. See, e.g., United States v. White,

648 F.2d 29, 34 (D.C. Cir. 1981) (explaining that “the

questions, if any, asked” is a factor to consider in whether a

seizure was a Terry stop or an arrest), discussed in United States

v. Serna-Barreto, 842 F.2d 965, 967 (7th Cir. 1988); United States v.

Barber, 557 F.2d 628, 632 (8th Cir. 1977) (holding that seizure

was an arrest, not a Terry stop, because “[t]he officers’ purpose

in going to the car was admittedly not investigatory; in fact,

they asked no questions of the three occupants. Once [the

first suspect] was secured in the back room of the liquor store,

the officers proceeded directly to the car to arrest all three

occupants.”). Additionally, Kermon’s failure to conduct any

investigation may in and of itself constitute a violation of

state law, see Pittman v. State, 971 N.E.2d 147, 150 (Ind. Ct. App.

2012) (explaining that Ind. Code § 12-23-15-2 requires “an

‘evaluation’ for possible alternate causes (i.e., other than

consumption of alcohol) for behavior that evinces intoxica-

tion and for which the subject will otherwise be transported

to jail”); though whether that is the case would have no

bearing on whether Gutierrez’s clearly established fourth

amendment rights were violated, cf. Virginia v. Moore, 553 U.S.

164, 168-76 (2008).

No. 12-2934 23

Sokolow, 490 U.S. 1, 7-8 (1989). And no reasonable officer

could have reasonably, even if mistakenly, believed that

these circumstances added up to probable cause that

Gutierrez was committing the crime of public intoxica-

tion. The only way Kermon has a shot of prevailing on

his qualified-immunity argument is if we accept his

version of a disputed fact, because unlike the

undisputed facts alone, adding to the equation the fact

that a person cannot walk steadily may suggest impair-

ment caused by the use of alcohol or controlled substances.

It is thus clear that Officer Kermon’s entire argument

is dependent upon a disputed fact. Our cases have

given fair warning that an interlocutory appeal will be

dismissed if the argument for qualified immunity is

dependent upon disputed facts. See Jones v. Clark, 630

F.3d at 680; Levan, 604 F.3d at 369-70; Viilo, 547 F.3d at

712; White, 509 F.3d at 835-37; Via, 469 F.3d at 624-25;

McKinney, 463 F.3d at 688-90; accord McKenna v. City

of Royal Oak, 469 F.3d 559, 561-62 (6th Cir. 2006). Rather

than accept the district court’s factual assumptions,

Kermon has simply ignored or denied that a factual

dispute exists and built his argument for qualified im-

munity on that disputed fact. See Viilo, 547 F.3d at 712

(“In denying rather than embracing the facts the district

court held to be sufficiently well-supported to create

jury issues, the defendants have pleaded themselves out

of court.”); White, 509 F.3d at 836-37 (no jurisdic-

tion where appellant’s “legal arguments [were] wholly

dependent upon, and inseparable from, his reliance

on disputed facts”). This is in stark contrast to cases

like Jones v. Clark, 630 F.3d at 681, and Sallenger, 473 F.3d at

24 No. 12-2934

738-39, where we found jurisdiction to exist after the

appellants unambiguously conceded in their briefs and

at oral argument that they were proceeding on the facts

assumed by the district court, even though factual

disputes had crept into their respective appeals.

III

Here, the district court found that the issue of whether

Gutierrez was swaying or walking with an unsteady gait

is a genuine factual dispute in need of a jury’s attention.

Officer Kermon’s unabashed reliance on that disputed

fact in support of his plea for qualified immunity de-

prives us of jurisdiction over this interlocutory ap-

peal. We therefore D ISMISS this appeal for want

of jurisdiction.

7-12-13