Estate of Derek Williams, Jr. v. Jeffrey Cline

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 17-2603

ESTATE OF DEREK WILLIAMS JR.,

deceased, by Sharday Rose, Special

Administrator, et al.,

Plaintiffs-Appellees,

v.

JEFFREY CLINE, et al.,

Defendants-Appellants.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin

No. 2:16-cv-00869-JPS — J.P. Stadtmueller, Judge.

____________________

ARGUED MAY 22, 2018 — DECIDED AUGUST 31, 2018

____________________

Before FLAUM, and RIPPLE, Circuit Judges, and GETTLEMAN,

District Judge. ∗

∗ Of the Northern District of Illinois, sitting by designation.

2 No. 17-2603

GETTLEMAN, District Judge. The facts of this case are dis-

turbing, and many are hotly contested. It is undisputed, how-

ever, that Derek Williams died on July 6, 2011, while in the

custody of the City of Milwaukee Police Department

(“MPD”). Williams left three surviving children who, along

with his estate, sued the City of Milwaukee and several MPD

officers (collectively, defendants) under 42 U.S.C. § 1983. De-

fendants filed a motion for summary judgment invoking

qualified immunity. The district court denied that motion,

finding that contested facts existed with respect to the liability

of all eleven defendant officers. See Williams v. City of Milwau-

kee, 274 F. Supp. 3d 860 (E.D. Wis. 2017) (hereafter, “Wil-

liams”). Defendants appealed. We remand the case to the dis-

trict court to perform an individual analysis of each defendant

officer’s claim of qualified immunity.

I.

In deciding defendants’ motion for summary judgment af-

ter the completion of discovery by the parties, the district

court thoroughly discussed the facts for nearly nine pages,

noting where they were disputed, and construing them in fa-

vor of Williams, the non-movant. See Bridge v. New Holland Lo-

gansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016). We need pro-

vide only a brief summation.

Shortly after midnight on July 6, 2011, Williams, a 22-year-

old African American man in good physical shape, was walk-

ing north on Holton Street. Williams was wearing a neoprene

mask, and was holding a cell phone under his clothing, which

made him appear armed. Four of the defendant officers were

driving in two separate police cars nearby and observed Wil-

liams approaching two people from behind. Believing they

were witnessing an attempted armed robbery, two of the

No. 17-2603 3

officers stopped their car. When they did, Williams ran across

Holton Street and through an alley. One officer ran after Wil-

liams while his partner drove in the direction Williams ran.

The other two officers followed in their car. Several other of-

ficers responded to the scene to set up a perimeter and search

for Williams.

Approximately eight minutes after Williams fled, two of

the defendant officers found Williams hiding in a nearby

backyard. When the other officers heard that Williams had

been located, they began moving toward the area. To get to

the backyard Williams had run 200 to 300 yards and jumped

over a fence. Williams and the officer who chased him were

both breathing heavily. There was a brief struggle, and the

two arresting officers pulled Williams down so that he was

lying on his back, then flipped him over to apply handcuffs.

One of the officers remained on top of Williams after he was

handcuffed, and Williams stated that he could not breathe.

The officer then shifted so that the majority of his weight was

no longer on Williams’ back, and radioed to dispatch that Wil-

liams was in custody. That transmission was recorded, and

Williams can be heard complaining that he could not breathe.

Williams repeated that he could not breathe, then went limp

when the officers lifted him up. The officers then placed Wil-

liams on the ground to evaluate him, and to avoid hurting

their backs. Several of the officers dispersed to search for the

suspected gun.

Once Williams was back on the ground he was breathing

heavily and sweating, his eyes were closed, and he was unre-

sponsive. The officers believed that Williams was faking dis-

tress to make it more difficult to move him out of the back-

yard. One of the officers performed a “sternum rub,” a painful

4 No. 17-2603

procedure used to determine whether someone is truly un-

conscious. Williams then opened his eyes and told the officers

that he was “just playing around” with the alleged robbery

victims, and that they were his friends. Williams continued to

complain that he could not breathe, loudly enough that

nearby neighbors heard him. They also heard one of the offic-

ers telling Williams to shut up. One of these neighbors made

a phone call and related that the police were killing someone

who was saying that he could not breathe.

About five minutes later, the officers moved Williams to

the front yard. Williams again went limp and had to be

dragged. The officers, still convinced that Williams was inten-

tionally obstructing their efforts to move him, told Williams

to stop “playing games.” Williams continued to state that he

could not breathe. While moving Williams to the front yard

the group was blocked by a yard sign, and one of the officers

let go of Williams. Williams fell face first onto the ground.

Two of the officers picked Williams back up and dragged him

to the front yard. One neighbor who witnessed this said that

Williams “looked like he was already dead” and continued to

say he could not breathe while the officers cursed at him. An-

other neighbor claims that Williams was taken to the police

car without difficulty. Yet another neighbor called 911 to re-

port that Williams was yelling that he could not breathe, and

was informed that paramedics could not be sent unless the

officers called for medical assistance.

The officers then took Williams to a police car and either

threw or directed him into the back seat. They did not discuss

Williams’ condition with the officer who was assigned to the

car. Sitting in the driver’s seat, that officer activated the re-

cording system in the car, but did not activate a video feed so

No. 17-2603 5

that he could observe Williams on his computer screen, nor

did he turn to look at Williams. Instead, the officer repeatedly

asked Williams his name, and when Williams answered with

“I can’t breathe,” “I’m dying,” and a request for an ambu-

lance, which the officer denies hearing, the officer told Wil-

liams that he was “breathing just fine” and “playing games.”

He also rolled the window down and turned on the air condi-

tioner. Williams’ girlfriend was nearby, and saw Williams

rocking around and heard him saying that he could not

breathe. The video of Williams in the back seat shows him in

obvious distress, eventually collapsing onto the door of the

car.

Another officer came to relieve the officer who was sitting

with Williams, but the two did not discuss Williams’ com-

plaints. That officer also failed to observe Williams through

the video feed, and turned to look at Williams only when he

was already slumped over and had stopped moving. At that

point the officer got out of the car to check Williams for a

pulse and breath. Finding neither, the officer still did not con-

clude that Williams’ medical condition was serious, and did

not call for medical assistance. Instead he went to another po-

lice car in search of help and found none. He returned to the

car alone and, at that point, radioed for help from other offic-

ers. A responding officer requested medical help for the first

time, approximately twelve minutes after Williams was put

in the car, and three minutes after he was found motionless.

Another officer searched for a plastic bag or mouth guard,

and then began administering CPR. Paramedics took over to

no avail. Williams was pronounced dead at 1:41 a.m.

The cause of death is also disputed. The Milwaukee

County Medical Examiner found that the cause of death was

6 No. 17-2603

sickle cell crisis brought about by Williams’ flight from and

altercation with the police. A deputy medical examiner with

the U.S. Armed Forces Medical Examiner System reviewed

the autopsy reports and concluded that the cause and manner

of death were undetermined.

The district court concluded that material facts concerning

the defendant officers’ conduct were contested, thus defeat-

ing summary judgment based on qualified immunity. On ap-

peal, defendants continue to contest many of the facts, but

also argue that even taken in the light most favorable to plain-

tiffs, the facts entitle them to summary judgment. Plaintiffs

argue that this court lacks jurisdiction to review the district

court’s denial of summary judgment because it is interlocu-

tory.

II.

Generally speaking, “the denial of summary judgment is

not appealable because it is not a ‘final decision’ for purposes

of 28 U.S.C. § 1291.” Gutierrez v. Kermon, 722 F.3d 1003, 1009

(7th Cir. 2013) (citing Ortiz v. Jordan, 562 U.S. 180, 188 (2011)).

The analysis changes, however, when a district court denies

summary judgment based on qualified immunity. Such an or-

der “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.” Id. (citing Mitchell v. Forsyth, 472

U.S. 511, 524‒30 (1985)). Appellate review is limited, however:

When the district court denies qualified immun-

ity 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

No. 17-2603 7

well established, any appeal must be limited to

the legal underpinnings of the court’s ruling.

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

Under Johnson v. Jones, “a defendant, entitled to invoke a

qualified immunity defense, 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. 304, 319–20 (1995). However, “John-

son does not prohibit [appellate review of] the abstract legal

question of whether a given set of undisputed facts demon-

strates a violation of clearly established law.” Gutierrez, 722

F.3d at 1009 (citing Behrens v. Pelletier, 516 U.S. 299, 313 (1996);

Leaf v. Shelnutt, 400 F.3d 1070, 1078 (7th Cir. 2005)). In other

words, we have appellate jurisdiction only if “the issue ap-

pealed concern[s], not which facts the parties might be able to

prove, but, rather, whether or not certain given facts show[] a

violation of ‘clearly established’ law.” Stinson v. Gauger, 868

F.3d 516, 524 (7th Cir. 2017) (en banc) (alterations in original)

(quoting Johnson, 515 U.S. at 311).

Substantive qualified immunity analysis encompasses

two distinct questions: (1) whether defendants violated a con-

stitutional right; and (2) whether that “right was ‘clearly es-

tablished’ at the time of the challenged conduct.” Ashcroft v.

al-Kidd, 563 U.S. 731, 735 (2011) (quoting Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982)). Our case law in this area indicates

we must conduct a predicate jurisdictional analysis as to each

prong of the qualified immunity standard. See, e.g., Estate of

Clark v. Walker, 865 F.3d 544, 551–53 (7th Cir. 2017) (exercising

jurisdiction over the second prong but not the first prong); see

also Broadfield v. McGrath, No. 17-3071, 2018 WL 2722504, at

*2–3 (7th Cir. June 6, 2018) (unpublished order) (same).

8 No. 17-2603

A defendant invoking immunity under prong one can

raise two types of arguments. First, he may argue there is in-

sufficient evidence to support the plaintiff’s version of the

facts, see, e.g., Johnson, 515 U.S. at 313, or that under defend-

ant’s version of the facts, no constitutional violation occurred.

See, e.g., Viilo v. Eyre, 547 F.3d 707, 710 (7th Cir. 2008). At bot-

tom, these are factual arguments over which we lack interloc-

utory jurisdiction. See, e.g., Johnson, 515 U.S. at 313; Stinson,

868 F.3d at 522–29; Gutierrez, 722 F.3d at 1008–14; Viilo, 547

F.3d at 710–12. Second, the defendant may also argue that, ac-

cepting the facts and inferences in the light most favorable to

the plaintiff, no constitutional violation occurred. This is a

purely legal question that we have jurisdiction to review. See,

e.g., Clark, 630 F.3d at 680.

Our jurisdictional analysis under the second prong is often

more straightforward. After all, “whether the legal norms al-

legedly violated by the defendant were clearly established at

the time of the challenged actions” is typically “a question of

law,” and thus, within our jurisdictional purview. Mitchell,

472 U.S. at 528; see also Behrens, 516 U.S. at 313 (describing the

“clearly established” prong as an “abstract issu[e] of law” (al-

teration in original) (quoting Johnson, 515 U.S. at 317)). Never-

theless, we would lack jurisdiction under the second prong if,

for example, a defendant argued that under his version of the

facts, the law was not clearly established. Such a litigation

strategy would no longer be “conceptually distinct from the

merits of the plaintiff’s claim.” See Mitchell, 472 U.S. at 527.

The inquiry does not end there. In addition to examining

the qualified immunity prongs separately, we must also con-

sider how defendants frame their qualified immunity argu-

ments on appeal. It is well settled that “an appellant

No. 17-2603 9

challenging a district court’s denial of qualified immunity ef-

fectively pleads himself out of court by interposing disputed

factual issues in his argument.” Gutierrez, 722 F.3d at 1010. Of

course, any reference to a disputed fact, however cursory, is

not automatically disqualifying. Id. At 1011. To the contrary,

“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 dis-

putes but the legal argument is not dependent on those fac-

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

separable.” Id. Rather, “[t]he key inquiry is whether the ap-

pellant’s arguments necessarily 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.” Id. (quoting White v. Gerar-

dot, 509 F.3d 829, 836 (7th Cir. 2007)).

A number of cases from our circuit effectively illustrate

this principle. In Viilo, for example, the defendants disputed

whether the plaintiff’s dog was interfering with their investi-

gation. 547 F.3d at 710. According to the court, however, it

went “without saying” that such a fact was dispositive of the

qualified immunity inquiry. See id. Similarly, in Gutierrez, the

defendant’s qualified immunity argument was “entirely de-

pendent on [a] disputed fact”—whether the plaintiff had an

unsteady gait that supported a probable cause seizure. 722

F.3d at 1011. Finally, the defendants in Stinson refused to

credit the plaintiff’s claim that a particular meeting between

two defendants took place, which the court held was “critical

to [the plaintiff’s] theory that the defendants fabricated evi-

dence and failed to disclose Brady material.” 868 F.3d at 526.

10 No. 17-2603

Thus, if the defendant interposes disputed factual issues

in his interlocutory argument, and if those disputed factual

issues are material to the qualified immunity analysis, then

the defendant has effectively pleaded himself out of court and

we do not have jurisdiction. Applying this framework to the

facts and pleadings in the instant case, we conclude that this

court lacks jurisdiction to decide whether a constitutional vi-

olation occurred, that is, prong one of the qualified immunity

inquiry. To determine whether an officer’s response to an ar-

restee’s medical needs was objectively unreasonable, we gen-

erally consider four factors: “(1) whether the officer has notice

of the detainee’s medical needs; (2) the seriousness of the

medical need; (3) the scope of the requested treatment; and (4)

police interests, including administrative, penological, or in-

vestigatory concerns.” Ortiz v. City of Chicago, 656 F.3d 523,

530 (7th Cir. 2011). As in Ortiz, the “third and fourth factors

are off the table in this case” because the defendant officers do

not claim that calling an ambulance “would have been bur-

densome or compromised any police interests.” Id at 530‒31.

Given that concession, our analysis hinges on the first two fac-

tors.

Critically, though, those two legal factors necessarily de-

pend upon disputed facts and inferences that defendants

failed to accept in the light most favorable to plaintiff

throughout their briefing and at oral argument. For example,

in their brief, defendants repeatedly asserted that certain of-

ficers did not hear Williams state that he could not breathe.

Indeed, defendants go so far as the state that: (1) the evidence

cited by the district court could “hardly establish that … there

was a factual dispute as to precisely when, or if, [certain de-

fendants] … heard Mr. Williams state that he could not

breathe”; (2) “there is no evidence which contradicts the

No. 17-2603 11

assertions made by [certain defendants] that they did not, at

any time, hear Mr. Williams say that he could not breathe”;

and (3) “Officers Cline, Thoms, Thimm, and Letteer and Ser-

geant Thiel and Kaul did not hear Mr. Williams state that he

had any difficulty breathing while they were in the backyard

at 2752 North Buffum.” However, the district court con-

cluded—based upon the recorded dispatch call, officers’ dep-

osition testimony, testimony from civilian witnesses, and the

squad car video—that “the jury could reasonably infer that

each Officer Defendant actually heard, or studiously avoided

hearing, Williams’ complaints of respiratory distress.” This

disputed factual issue is material to our prong one inquiry be-

cause it goes to whether defendants had notice of Williams’

medical condition. Likewise, defendants further claim that,

even if certain officers did hear Williams’ statements, “there is

no evidence which … suggests that any Appellant actually

thought that Mr. Williams was experiencing a medical emer-

gency.” But that assertion belies the district court’s factual

finding that “if Plaintiff’s evidence is believed, the Officer De-

fendants … were well aware that his condition was real and

required immediate attention.” This factual dispute is equally

material because it goes to the seriousness of Williams’ medi-

cal need.

Collectively, then, defendants’ prong one arguments are

intertwined with disputed facts—namely, whether the de-

fendants were on notice that Williams had a serious medical

condition. Defendants do not concede these critical disputed

factual issues for purposes of prong one of qualified immun-

ity. Nor was their cursory statement at oral argument suffi-

cient to overcome the jurisdictional hurdle in this procedural

posture. On the whole, defendants rely upon material factual

disputes that are inseparable from the legal question of

12 No. 17-2603

whether a constitutional violation occurred. Because their ar-

guments require us to revisit these disputed factual questions,

we lack jurisdiction to decide the first step of the qualified im-

munity analysis. See Walker, 865 F.3d at 551 (holding that we

lacked jurisdiction to determine whether defendant actually

knew about plaintiff’s medical condition and whether plain-

tiff’s medical condition was sufficiently serious because such

disputes were “factual in nature”).

Nevertheless, we conclude that this court has jurisdiction

to answer the second question—whether the alleged constitu-

tional right at issue was clearly established at the time of the

incident. Defendants argue that, “even assuming arguendo

that appellants’ actions amounted to a constitutional viola-

tion, if the law did not put them on notice that their conduct

would clearly be unlawful, then they are entitled to qualified

immunity.” This is a “legal issue[] … quite different from any

purely factual issues that the trial court might confront if the

case were tried.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2019

(2014). To answer this question, we “simply take, as given, the

facts that the district court assumed when it denied summary

judgment for that (purely legal) reason.” Johnson, 515 U.S. at

319. Indeed, “deciding legal issues of this sort is a core respon-

sibility of appellate courts.” Plumhoff, 134 S. Ct. at 2019. De-

fendants’ alternative argument focuses not on which facts

plaintiff can prove, but instead on whether the undisputed

facts “show a violation of clearly established law”—a purely

legal question within the scope of our interlocutory appellate

jurisdiction. Stinson, 868 F.3d at 524 (internal quotation marks

and citation omitted).

Consequently, we conclude that this court has appellate

jurisdiction to decide whether the constitutional right alleged

No. 17-2603 13

by plaintiffs was clearly established at the time of Willliams’

death. As discussed below, however, because the district

court failed to make an individualized assessment of each de-

fendant officer’s claim of qualified immunity, we must re-

mand the case for that purpose.

III.

“Qualified immunity is an individual defense available to

each individual defendant in his individual capacity.” Bakalis

v. Golembeski, 35 F.3d 318, 326–27 (7th Cir. 1994). Our cases

demonstrate a painstaking commitment to an individualized

qualified-immunity analysis, especially when the facts rela-

tive to the alleged constitutional violation differ from defend-

ant to defendant. See, e.g., Petties v. Carter, 836 F.3d 722, 731–

33 (7th Cir. 2016) (en banc) (considering separately actions of

individual physicians to determine whether each was delib-

erately indifferent to plaintiff’s medical needs); Estate of Phil-

lips v. City of Milwaukee, 123 F.3d 586, 593 (7th Cir. 1997) (con-

sidering the reasonableness of each defendant-officer’s ac-

tions in restraining arrestee).

Under our case law, the district court had the duty to de-

termine whether each defendant violated Williams’ Fourth

Amendment rights and, if so, whether that right, defined at

an appropriate level of specificity, was clearly established at

the time that Williams was in custody. See, e.g., Volkman v.

Ryker, 736 F.3d 1084, 1090 (7th Cir. 2013). Following this ap-

proach, the district court’s first step should have been to eval-

uate each defendant’s conduct in light of the four factors set

forth in Ortiz, 656 F.3d at 530. See supra at 11. If the court con-

cluded that, on balance, these factors, viewed in the light most

favorable to the plaintiff, established a Fourth Amendment vi-

olation, see Florek v. Vill. of Mundelein, 649 F.3d 594, 600 (7th

14 No. 17-2603

Cir. 2011), then its next step should have been to evaluate

whether the contours of the Fourth Amendment right were

“sufficiently clear that a reasonable official would understand

that what he is doing violates that right.” Volkman, 736 F.3d at

1090 (internal quotation marks omitted).

Here, each defendant-officer had a different degree of con-

tact with Williams and had different assigned responsibilities

with respect to the apprehension of Williams and investiga-

tion of the alleged armed robbery. Although the district

court’s recitation of facts acknowledges the officers’ varying

encounters with Williams, its qualified-immunity analysis

lacks any individualized assessment. See Williams, 274 F.

Supp. 3d at 884. For example, the only officers mentioned by

name in the district court’s discussion of the plaintiffs’ failure-

to-provide-medical-care claim were Officers Cline and

Ticcioni. With respect to these officers, the court stated: “Ra-

ther than supporting their assessment that Williams was ma-

lingering, the evidence that Cline and Ticcioni took limited

actions to assuage Williams’ distress (rolling down the car

window and leaning off of Williams’ back) supports the infer-

ence that they knew his condition was serious.” See id. at 885.

However, only Officer Cline was in the car for an extended

period of time with Williams, and only Officer Ticcioni had

Williams in a prone position while handcuffing him. The dis-

trict court’s conclusions based on these facts, therefore, are

not necessarily imputed to the other officers.

Consequently, before we can review whether or not the

facts taken in the light most favorable to plaintiffs entitle any

of the defendant officers to qualified immunity, the district

court must articulate an individualized analysis of such facts

as applied to each defendant officer.

No. 17-2603 15

IV.

For the reasons discussed above, the order of the district

court is VACATED and the case is REMANDED for proceed-

ings consistent with this opinion.

16 No. 17-2603

RIPPLE, Circuit Judge, dissenting. The majority concludes

that, given the factual findings of the district court, we lack

jurisdiction to consider the first prong of the qualified-im-

munity analysis: whether the individual officers violated

Mr. Williams’s constitutional rights. It concludes, however,

that we have jurisdiction to consider the second prong of the

qualified-immunity analysis: whether those constitutional

rights were clearly established.

This approach, in my view, suffers from two infirmities.

First, it fails to recognize that the district court’s lack of a de-

fendant-by-defendant analysis infected both prongs of its

qualified-immunity analysis. Second, it interposes the

two-pronged, substantive analysis of qualified-immunity

claims into its consideration of jurisdiction.

One of the fixed stars in this area of our work is that qual-

ified immunity “is an individual defense available to each in-

dividual defendant in his individual capacity.” Bakalis v. Go-

lembeski, 35 F.3d 318, 326–27 (7th Cir. 1994) (emphasis added).

Determining whether an individual officer is entitled to quali-

fied immunity involves a two-step analysis: 1) whether the in-

dividual officer violated Mr. Williams’s constitutional rights;

and 2) whether those rights, “articulated at a meaningful level

of particularity,” were clearly established at the time of the

incident. Canen v. Chapman, 847 F.3d 407, 412 (7th Cir. 2017).

As the majority notes, “[o]ur cases demonstrate a painstaking

commitment to an individualized qualified immunity analy-

sis, especially when the facts relative to the alleged constitu-

tional violation differ from defendant to defendant.” Majority

Op. 13–14.

The district court failed to follow this elemental step. Alt-

hough its recitation of the facts acknowledges the officers’

No. 17-2603 17

varying encounters with Mr. Williams, its qualified-immun-

ity analysis does not reflect an officer-by-officer approach. In-

stead, the court reached a blanket conclusion that the officers

had violated Mr. Williams’s constitutional rights and that

those rights, considered abstractly, were clearly established at

the time that Mr. Williams was apprehended. Counsel and

this court, therefore, were left with a vague, amorphous de-

termination. As a result, there was much confusion in the

briefs and at oral argument as to whether the defendants were

attempting to appeal a question of law or of fact as we, in ef-

fect, struggled to do the work of the district court.

Turning to the second infirmity, I have grave reservations

about our deciding the question of our own jurisdiction on the

prong-by-prong basis of substantive qualified-immunity

analysis. Courts do not exercise jurisdiction over “prongs” of

a substantive analysis; they exercise jurisdiction over judg-

ments or orders of courts whose actions are subject to their

review. Indeed, in deciding that the denial of qualified im-

munity was an immediately appealable collateral order, the

Court spoke in terms of the “claim of qualified immunity.”

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

Here, we either have jurisdiction over the order of the dis-

trict court denying qualified immunity or we do not. In the

case of an order denying qualified immunity to an individual

officer, we may consider such appeals to the extent the de-

fendant presents an abstract issue of law: whether the actions

of a defendant violated the constitutional rights of the plain-

tiff or whether the right violated was clearly established at the

time that the defendant acted. See, e.g., Green v. Newport, 868

F.3d 629, 632 (7th Cir. 2017). Appellate review is precluded

only when the district court’s denial of qualified immunity is

18 No. 17-2603

based on a factual issue that cannot be divorced from the

purely legal questions related to qualified immunity. See

Levan v. George, 604 F.3d 366, 369 (7th Cir. 2010) (“If the denial

of qualified immunity turns on factual rather than legal ques-

tions, the denial is not properly subject to appellate jurisdic-

tion under the collateral order doctrine because the decision

is not ‘final.’”). Even if key facts are disputed, however, ap-

pellate review still is possible when, for purposes of appeal,

the defendant concedes that the plaintiff’s version of the facts

is correct or when the defendant accepts that there are factual

disputes but takes each disputed fact in the light most favor-

able to the plaintiff. Jones v. Clark, 630 F.3d 677, 680 (7th Cir.

2011). In short, the presence of a pure question of law as to

either prong of the qualified-immunity analysis provides a

basis for our jurisdiction. However, our jurisdiction over the

claim of qualified immunity, once jurisdiction is secure, is not

so limited.

I am aware of only one published opinion from our court,

Estate of Clark v. Walker, 865 F.3d 544, 551–53 (7th Cir. 2017),

that explicitly employs a prong-by-prong consideration of ju-

risdiction. See also Broadfield v. McGrath, 2018 WL 2722504, at

*3 (7th Cir. June 6, 2018) (unpublished) (relying on Estate of

Clark). However, Estate of Clark neither explains the rationale

behind, nor the authority supporting, its use of jurisdictional

terminology. No doubt, we and other courts have employed

the term “jurisdictional” in a casual manner when discussing

appellate review of qualified-immunity cases. However, in

other contexts, the Supreme Court has noted that “[j]urisdic-

tion … is a word of many, too many, meanings,” Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 90 (1998) (quoting United

States v. Vanness, 85 F.3d 661, 663 n.2 (D.C. Cir. 1996)), and has

cautioned us against transforming procedural and prudential

No. 17-2603 19

rules into jurisdictional mandates, see Kontrick v. Ryan, 540

U.S. 443, 454 (2004). Similarly, we should be cautious in con-

flating the substantive analysis of a claim of qualified immun-

ity with the question whether we have jurisdiction to consider

that claim.

As I already have noted, I agree with my colleagues that

this case comes to us in an unfinished state, a condition that

impeded significantly the ability of counsel to present the ap-

peal to us and that makes careful decision-making on our part

difficult. Given the state of the record, the appropriate course

is to pretermit the question of appellate jurisdiction and re-

mand the case to the district court for an individualized de-

termination of qualified immunity for each of the defend-

1

ants. Once we have a more fulsome analysis, we then can

consider whether we have jurisdiction as to the qualified-im-

munity claim of each defendant and assess seriously whether

a prong-by-prong approach to jurisdiction is appropriate.

1 We could “undertake [the] cumbersome review of the record,” Whitlock

v. Brueggeman, 682 F.3d 567, 574 (7th Cir. 2012) (quoting Johnson v. Jones,

515 U.S. 304, 319 (1995)), here and determine whether, taking the facts in

the light most favorable to Mr. Williams’s estate, each individual officer

violated Mr. Williams’s Fourth Amendment rights and whether the con-

tours of the Fourth Amendment right were sufficiently clear that each in-

dividual officer “would understand that what he [wa]s doing violate[d]

that right.” Volkman v. Ryker, 736 F.3d 1084, 1090 (7th Cir. 2013) (internal

quotation marks omitted). But because the ability of counsel to brief the

case in an effective manner may well have been impeded by the district

court’s failure, the far more prudent course is to require the district court

to undertake the initial assessment. This approach is especially advisable

when this process well may alter the district court’s determination with

respect to at least some defendants.