The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3825
DONNA GARVIN, Individually and as Personal
Representative of the Estate of Alexis Christopher
Garvin, deceased, and STEVE GARVIN,
Plaintiffs-Appellees,
v.
LAWRENCE A. WHEELER, JR.,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IP 98-1243-C-Y/F—Richard L. Young, Judge.
____________
ARGUED APRIL 16, 2002—DECIDED AUGUST 28, 2002
____________
Before CUDAHY, COFFEY, and WILLIAMS, Circuit Judges.
COFFEY, Circuit Judge. This is a 42 U.S.C. § 1983 case
in which the plaintiffs claim that police officer Lawrence
Wheeler used excessive force against Alexis Garvin when
he shot and killed Garvin during the course of a burglary
investigation. On October 4, 2000, Judge S. Hugh Dillin1
denied Officer Wheeler’s motion for summary judgment,
1
On July 18, 2001 the case was reassigned from Judge Dillin to
Judge Young, who issued the decision from which Officer Wheeler
appeals.
2 No. 01-3825
ruling that there was a genuine issue of material fact
regarding Officer Wheeler’s credibility, which precluded
summary judgment. Over ten months after Judge Dillin
ruled on Officer Wheeler’s summary judgment motion,
Officer Wheeler filed a four-page motion before Judge
Young, requesting leave to renew his summary judgment
motion. Judge Young denied the defendant’s motion and
Wheeler appeals from that denial.
I. Factual Background
On August 29, 1996, at approximately 1:05 a.m., India-
napolis Police Department (IPD) Officer Ronald Mills
received a radio call that there was a burglary at Hart’s
Automotive in Indianapolis, Indiana. Officer Mills re-
sponded almost immediately to the call and was the first
officer to arrive at the automotive shop. Once Mills ar-
rived at Hart’s, he observed that a panel had been re-
moved from one of the building’s garage doors. Officer Mills
informed the dispatch operator that a burglary had oc-
curred and, the operator, in turn, apprised assisting units
of the situation.
Shortly after Mills confirmed that a burglary had oc-
curred, Officer Wheeler responded to the dispatch opera-
tor’s call and was approaching Hart’s from the west on
26th street, allowing him to intercept any suspects flee-
ing eastbound from the scene. As he approached the site
of the burglary, Wheeler spotted Alexis Garvin, walking
alone at a normal rate of speed. According to Wheeler,
Garvin was walking eastbound on 26th street (away
from the scene of the crime) and was not carrying anything
in his hands. Wheeler drove his marked police vehicle to
within 10-15 feet of Garvin and turned on the vehicle’s
“alley lights” so that the area in which Garvin was walk-
ing was illuminated. As he exited the vehicle, Wheeler
shined his flashlight at Garvin and asked what he was
No. 01-3825 3
doing there, but failed to identify himself as a police of-
ficer. When Wheeler shined the flashlight upon Garvin,
Garvin began to flee.
At this point, the parties’s versions of events sharply
diverged. According to Wheeler, he prevented Garvin’s
flight by grabbing his shirt, but as Garvin turned to face
Wheeler, Wheeler claimed that he observed Garvin reach
for a gun in his waistband. Wheeler claimed that he and
Garvin struggled for control of the gun, whereby they
both fell to the ground. Wheeler contended that when
Garvin began to gain control of the weapon, Wheeler
(who was on top of Garvin on the ground) “rocked back,
drew his [own] firearm and fired four successive shots at
[Garvin].”
The plaintiffs tell a different story. According to plain-
tiffs, no struggle ever took place and Garvin never drew a
gun—and thus Wheeler’s use of deadly force was not
justified. In support of their claims, plaintiffs question
the credibility of Wheeler. They pointed out that his
deposition testimony differed from that of Officers Mills
and Toliver. Both Mills and Toliver claimed to have heard
Wheeler report that he was pursuing a suspect, contrary
to Wheeler’s deposition testimony that he never radioed
that he was pursuing a fleeing suspect. Further, both Mills
and Toliver reported hearing Wheeler describe the sus-
pect as running westbound towards the burglary site, as
opposed to the easterly direction Wheeler claimed to
have observed Garvin heading. Second, and far less triv-
ial than the discrepancies in Wheeler’s deposition testi-
mony, the plaintiffs pointed out that the IPD’s forensic
analysis of the weapon Wheeler claimed that Garvin aimed
at him revealed no latent fingerprints, despite the fact
that Wheeler claimed the weapon never left Garvin’s
hand during the struggle.
Not quite two years after the shooting, on August 25,
1998, the plaintiffs filed suit in the Marion County, Indi-
4 No. 01-3825
ana, Circuit Court, alleging that Officer Lawrence Wheeler
violated Alexis Garvin’s civil rights under 42 U.S.C. § 1983,
when he used excessive force in fatally shooting Garvin
during a burglary investigation. Officer Wheeler promptly
removed the suit to the federal court for the Southern
District of Indiana under the court’s federal question
jurisdiction, 28 U.S.C. §§ 1441 & 1446.
On May 18, 2000, Officer Wheeler moved for summary
judgment, asserting the affirmative defense of qualified
immunity. According to Wheeler, his use of deadly force
was justified because he faced a potentially life-threaten-
ing situation. Before the trial court, the parties hotly
contested the series of events that led to the tragic death of
Alexis Garvin and the district court viewed them, as it
was required to do in reviewing a motion for summary
judgment, in the light most favorable to the nonmoving
party, the Garvins. The plaintiffs pointed out the incon-
sistences referred to above and argued that the lack of
fingerprints on the gun and the inconsistencies in Wheeler’s
story called into question his credibility. Because of
Wheeler’s lack of credibility, the plaintiffs argued that
there was a genuine issue of material fact regarding
whether any struggle actually occurred, thus precluding
summary judgment. After reviewing the record, we agree
with the trial court’s determination that Wheeler was less
than truthful in his recitation of the facts leading up to
Alexis Garvin’s death.
After being presented the conflicting versions of events,
Judge Dillin denied Officer Wheeler’s motion for summary
judgment on October 4, 2000.2 The trial judge noted that
“[u]nder [Officer Wheeler’s] set of facts, the Supreme
2
Under Federal Rule of Appellate Procedure 4(a)(a)(A), Officer
Wheeler was required to file a notice of appeal with the district
court clerk within 30 days after the judgment was entered.
No. 01-3825 5
Court’s decision in [Tennessee v. Garner, 471 U.S. 1 (1985)]
entails a finding that Officer Wheeler’s use of deadly force
was reasonable.” But the trial judge went on to note that
because Officer Wheeler is the only surviving witness to
the series of events leading to Garvin’s death, that the
officer’s credibility was “crucial to the case . . . [and] should
the finder of fact believe Officer Wheeler and find his
testimony credible, no violation of the Fourth Amendment
has occurred. However, if the finder of fact believes that
no struggle took place and that [Garvin] never drew a gun,
the reasonableness of Officer Wheeler’s use of deadly force
becomes questionable.” The trial judge found Wheeler’s
version of events to be less than credible and went on
to conclude that, based on the inconsistencies in Officer
Wheeler’s deposition testimony and the absence of any
of Garvin’s fingerprints on the gun he allegedly aimed
at Wheeler, there was a genuine issue of fact as to
Wheeler’s credibility. Thus Judge Dillin ruled that sum-
mary judgment was inappropriate.
Wheeler never did file a notice of appeal from Judge
Dillin’s October 4, 2000, denial of qualified immunity,
and discovery in the case proceeded. During that addition-
al discovery, plaintiffs deposed David Brundage, a super-
vising forensic scientist for the Indianapolis-Marion County
Forensic Services Agency. In that deposition of Wheeler’s
own expert witness, Brundage testified that the entry
and exit wounds on Garvin’s body were not consistent
with Wheeler’s testimony with regard to how the shoot-
ing took place, thus further calling into question Wheeler’s
version of events.
On August 7, 2001, nearly ten months after the trial
court had previously denied qualified immunity, Wheeler
filed a four-paragraph motion for leave to file renewed
motion for summary judgment. Defendant’s motion asserted
that a case decided by the Supreme Court two months
earlier, Saucier v. Katz, 533 U.S. 194 (June 18, 2001),
6 No. 01-3825
demonstrated that Judge Dillin’s denial of summary
judgment was in error. Judge Young denied defendant
leave to renew his summary judgment motion, ruling that
Saucier did not impact Judge Dillin’s analysis. Wheeler
appeals from Judge Young’s denial of leave to file a re-
newed summary judgment motion.
II. Jurisdiction
Before proceeding to the merits of Officer Wheeler’s
arguments, we must first determine whether this court
has jurisdiction to hear Wheeler’s interlocutory appeal.
Ordinarily, the denial of a defendant’s motion for sum-
mary judgment is not an appealable order because it is
not a “final decision” of the trial court. 28 U.S.C. § 1291;
Coady v. Steil, 187 F.3d 727, 730 (7th Cir. 1999); Rambo v.
Daley, 68 F.3d 203, 205 (7th Cir. 1995). The Supreme
Court has articulated one narrow exception to the finality
rule: the collateral order doctrine. Cohen v. Beneficial
Industrial Loan Corp., 337 U.S. 541, 546 (1949); Coopers &
Lybrand v. Livesay, 437 U.S. 463, 467 (1978). The collateral
order doctrine applies to interlocutory orders that “con-
clusively determine the disputed question, resolve an
important issue completely separate from the merits of
the action, and [are] effectively unreviewable on appeal
from a final judgment.” Coopers & Lybrand, 437 U.S. at
468. The denial of a defendant’s motion for summary judg-
ment is an immediately appealable collateral order where
the defendant was a public official asserting qualified
immunity. Mitchell v. Forsyth, 472 U.S. 511, 528-30 (1985).
But this does not carry the day for Wheeler, for he failed
to appeal Judge Dillin’s October 4, 2000, denial of his sum-
mary judgment motion asserting qualified immunity.
Instead, Wheeler waited more than ten (10) months after
Judge Dillin initially rejected his qualified immunity
defense and sought leave from Judge Young to raise the
No. 01-3825 7
defense again. We are well aware of the rule that a sec-
ond appeal under the collateral order doctrine is permissi-
ble with respect to qualified immunity claims. See Behrens
v. Pelletier, 516 U.S. 299 (1996); Bakalis v. Golembeski,
125 F.3d 576 (7th Cir. 1997). Behrens, however, is inap-
plicable to the case at hand. The Supreme Court’s holding
in Behrens allowed defendants to renew their motions
for summary judgment when the factual predicates of
that defense developed as discovery progressed, reasoning
that the qualified immunity defense might mature as the
litigation progressed and the defendant ought to be able
to receive the full protections of the qualified immunity
doctrine as factual information was developed. This is not
such a case. Wheeler presented the trial court with no
additional facts collected during discovery. Contrary to
the scenario envisioned in Behrens where additional facts
gleaned from discovery bolstered a qualified immunity
defense, the only additional facts discovered by either
party during the time period between Wheeler’s two
motions related to the IPD’s forensics experts’ deposi-
tion testimony that the entry and exit wounds on the
deceased’s body were inconsistent with Wheeler’s version
of events. Rather than strengthen Wheeler’s claim for
qualified immunity, these new facts only seem to cast
further doubt on his credibility and recitation of the ver-
sion of events of the night of August 29, 1996.
Instead, the basis of Wheeler’s request to renew his
summary judgment motion was that the controlling legal
standard had changed since he initially pressed his quali-
fied immunity defense. Of course, a trial court may, in the
exercise of its discretion, allow a party to renew a previ-
ously denied summary judgment motion. Whitford v.
Boglino, 63 F.3d 527, 530 (7th Cir. 1995); Kirby v. P.R.
Mallory & Co., 489 F.2d 904, 913 (7th Cir. 1973). A re-
newed summary judgment motion is appropriate if one
of the following grounds exist: (1) an intervening change
8 No. 01-3825
in the controlling law; (2) the availability of new evidence
or an expanded factual record; and (3) need to correct a
clear error or prevent manifest injustice. Whitford, 63 F.3d
at 530.
In this instance, defendant Wheeler claims that Saucier
v. Katz, 533 U.S. 194 (June 18, 2001), worked a fundamen-
tal change in the law of qualified immunity that should
allow him to reopen his motion for summary judgment. But
defendant Wheeler overstates the import of Saucier.
Saucier was not a hallmark reformulation of the qualified
immunity analysis. Instead, Saucier stressed that a trial
court must engage in the two-part qualified immunity
analysis (asking first whether a constitutional right was
violated and second whether that right was clearly estab-
lished) before it engages in other analysis. Id. at 200-01.
Judge Dillin did just that when he expressly noted that
Garner governed an officer’s use of deadly force and that
if Wheeler’s version of events were believable, then in
that instance he would be entitled to qualified immunity.
Judge Dillin, however, found that Officer Wheeler’s version
of events was less than credible and therefore that the
plaintiffs had established that a reasonable officer could
not have believed his action (fatally shooting an unarmed
suspect) to be reasonable. Thus, Judge Dillin did engage
in the two-part qualified immunity test required by Saucier.
In Justice v. Town of Blackwell, 820 F.2d 238 (7th Cir.
1987), we declined to accept jurisdiction over an interlocu-
tory appeal from the denial of a motion to amend the
answer to include the defense of qualified immunity. In that
case, the trial judge did not address the merits of the
qualified immunity defense, but instead denied the motion
because of the lengthy delay between the filing of the
defendant’s answer and the motion to amend. We think
the case before us is analogous: Wheeler never appealed
from Judge Dillin’s denial of his claim of qualified immu-
nity and instead waited nearly a year before seeking leave
No. 01-3825 9
to renew that claim (notwithstanding the fact that the
facts of the case had not changed). The Federal Rules of
Appellate Procedure allot 30 days time for Wheeler to
have filed a notice of appeal, and the time for Wheeler to
appeal Judge Dillin’s denial of his qualified immunity
motion has long since passed. See Fed. R. App. P. 4(a). Giv-
en Wheeler’s tardiness in renewing his motion for sum-
mary judgment (he waited nearly ten months after it
was denied and nearly two months after Saucier was is-
sued to renew it), we think that this appeal does not fall
within the ambit of the collateral order doctrine allowing
for appeals from the denials of qualified immunity. As
Judge Young astutely commented, “this case is old and
needs to be tried.”
But there is another reason to decline to exercise juris-
diction over Wheeler’s appeal. Mitchell held that a “dis-
trict court’s denial of a claim of qualified immunity, to
the extent that it turns on an issue of law, is an appealable
‘final decision’ within the meaning of 28 U.S.C. § 1291
notwithstanding the absence of a final judgment.” (empha-
sis added). 472 U.S. at 530. In other words the collateral
order doctrine does not permit an immediate appeal of
a trial court’s denial of qualified immunity when the
court’s summary judgment order rests on a determination
that there are genuine issues of fact requiring a trial.
Johnson v. Jones, 515 U.S. 304, 319-320 (1995); see also
Taboas v. Mlynczak, 149 F.3d 576, 579; Bakalis, 125 F.3d
at 578; Rambo, 68 F.3d at 207. “If the district court’s order
rests on the existence of disputed factual issues, rather
than on issues of law, the collateral order doctrine does
not permit an immediate appeal from that decision.”
Talboas, 149 F.3d at 579.
Wheeler suggests that his appeal turns upon an issue
of law and that there are no disputed facts. Wheeler’s
characterization that his dispute is legal, rather than
factual, is less than accurate. In the underlying denial
10 No. 01-3825
of summary judgment, Judge Dillin clearly held that “if
the finder of fact believes that no struggle took place and
that [Garvin] never drew a gun, the reasonableness of
Officer Wheeler’s use of deadly force becomes question-
able.” Judge Dillin went on to rule that issues regarding
Wheeler’s credibility made it possible that a fact finder
could believe the plaintiffs’ version of events, in which
Wheeler resorted to the use of deadly force on a suspect
who had not committed or threatened any act of violence.
Wheeler does not contend, nor could he, that under the
plaintiffs’ version of the facts his actions could be consid-
ered objectively reasonable. Tennessee v. Garner clearly
does not allow police officers to use deadly force on un-
armed burglary suspects who have neither threatened the
officer with a weapon nor committed a crime involving
the infliction of serious physical harm. 471 U.S. 1, 11
(1985). The essential dispute, therefore, concerns whether
Officer Wheeler’s or the plaintiffs’ version of the facts is
true.
In short, if the factfinder were to accept Officer Wheeler’s
version of the events, he would be entitled to qualified
immunity, for it is objectively reasonable for a police offi-
cer to defend himself when a suspect aims a weapon at
him. But under the plaintiffs’ version of the facts, where
no struggle occurred, Officer Wheeler shot a suspect
who was neither armed nor resisting. As Judge Dillin
found, there were a number of inconsistencies in Wheeler’s
recitation of events, which in turn called into question
his credibility. For example, police, after a thorough
inspection, failed to find even a single partial print on the
gun Garvin allegedly aimed at him. Wheeler’s deposi-
tion testimony, which conflicted with that of other offi-
cers reporting to the scene of the crime (particularly
with respect to the direction Wheeler claimed Garvin had
been heading), dealt another blow to his credibility. Final-
ly and perhaps most damaging to Wheeler’s credibility,
No. 01-3825 11
the entry and exit wounds on Garvin’s body were incon-
sistent with Wheeler’s description of the shooting accord-
ing to the IPD’s forensic scientists. Judge Dillin cor-
rectly observed that this is a factual, not a legal, dispute.
We have consistently held that a cry of “I didn’t do it” does
not present any distinctly legal issue or seek protection
from legal uncertainty, and therefore cannot be raised in
an interlocutory appeal from the denial of qualified immu-
nity. Taboas, 149 F.3d at 579; Gorman v. Robinson, 977
F.2d 350, 354-55 (7th Cir. 1992); Elliott v. Thomas, 937
F.2d 338, 342-43 (7th Cir. 1991). Mitchell does not allow
us to hear disputes on interlocutory appeal regarding
which facts the parties might be able to prove at trial. 472
U.S. at 530; see also Johnson, 515 U.S. at 319-20
Wheeler had a thirty-day window in which to file a notice
of appeal challenging Judge Dillin’s legal conclusions
regarding his motion for summary judgment and he
failed to do so. We are without jurisdiction to hear his
belated appeal. For the foregoing reasons, we DISMISS the
appeal for lack of jurisdiction.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—8-28-02