Anthony Gant v. Daniel Hartman

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 18-1287

ANTHONY GANT,

Plaintiff-Appellee,

v.

DANIEL HARTMAN,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Indiana, Fort Wayne Division.

No. 1:16-CV-380 — Theresa L. Springmann, Chief Judge.

____________________

ARGUED FEBRUARY 7, 2019 — DECIDED MAY 14, 2019

____________________

Before BAUER, HAMILTON, and BRENNAN, Circuit Judges.

HAMILTON, Circuit Judge. Anthony Gant brought this ac-

tion against three police officers and the City of Fort Wayne

for injuries he sustained as he fled from an armed robbery.

Gant’s operative First Amended Complaint alleges several

constitutional violations and seeks damages under 42 U.S.C.

§ 1983. The defendants moved for summary judgment, assert-

ing claims of qualified immunity for Officers Daniel Hartman,

Bradley Griffin, and Jason Palm.

2 No. 18-1287

The district court granted summary judgment for all de-

fendants except Officer Hartman, who Gant alleges violated

his Fourth Amendment rights by using unconstitutional ex-

cessive force in shooting him. Officer Hartman now appeals

the district court’s denial of summary judgment. Because Of-

ficer Hartman’s argument depends upon and is inseparable

from the disputed facts identified by the district court, we

must dismiss this appeal for lack of appellate jurisdiction.

I. The Robbery and Shooting

On August 23, 2015, just before sunset, Officers Hartman,

Griffin, Palm, and others responded to a report of an ongoing

armed robbery at a Dollar General store in Fort Wayne, Indi-

ana. Police dispatch told Officer Hartman that a female caller

was on the phone with her friend, an employee of Dollar Gen-

eral, when the employee screamed and exclaimed several

times that she could not open the register because it was on a

timer. Hartman and the other responding officers knew that

there had been a series of armed robberies at various Dollar

General stores in the Fort Wayne area. The police had not ar-

rested any suspects in association with these robberies. In the

previous robberies, two men would enter the store, display

handguns, confine or zip-tie employees, wait for the registers

to open, and depart after collecting cash, cigarettes, and em-

ployees’ cell phones.

Arriving at the scene of the robbery, Officer Hartman

crouched ten to fifteen feet from the front entrance of the

store. He could not see clearly into the store because shelving

units blocked his view. Officers Griffin and Palm arrived and

positioned themselves respectively on the west and east sides

of the store’s front entrance. Two more officers (Edward Black

and Mark Bieker) went to the back of the store. By this time,

No. 18-1287 3

the dispatcher had told the officers that the 911 caller had lost

phone contact with the employee, who had continued to yell

that she could not open the register. While Officers Hartman,

Griffin, and Palm were discussing how to proceed, the two

officers at the back of the store radioed that they had observed

suspects start to try to escape out the back but then retreat into

the store. Officer Palm then reported that he saw two people

inside approaching the front entrance of the store.

What happened next was recorded by the cameras of two

patrol cars facing the store entrance. The video recordings

were subject to frame-by-frame analysis by Officer Hartman’s

expert witness. The following events happened in rapid suc-

cession, all occurring within a single second. Officer Hartman

started to approach the front entrance. As he started toward

the doors, two men appeared in the front entrance. The first

suspect, later identified as Christopher Johnson, ran out of the

front entrance. All three officers shouted to the suspects to get

down on the ground. Officer Hartman started to run toward

Johnson, but then turned to see plaintiff Anthony Gant stand-

ing in the doorway. Gant had his left arm extended, holding

the door open. Hartman then fired two shots. One struck Gant

in the abdomen.

Officer Hartman explained afterward that he feared for his

life because he believed Gant was holding a handgun, and

Hartman had no cover from a potential shot. At the moment

he fired his weapon, Officer Hartman estimates, he was less

than twenty feet away from Gant. Officer Hartman reported

later that Gant showed no signs of surrendering or obeying

commands to get down on the ground. Officer Hartman be-

lieved Gant was holding a gun in his left hand and was pre-

paring to shoot.

4 No. 18-1287

It was later determined that Gant had not been holding a

handgun, nor any object, in his hand when Officer Hartman

fired. Gant argues that he was either attempting to surrender

or that he was given no opportunity to respond to the orders

because he was shot immediately as he was exiting the store.

On July 25, 2016, Gant pleaded guilty to the charge of armed

robbery under Indiana Code § 35-42-5-1(1).

II. District Court Proceedings

After pleading guilty, Gant filed this § 1983 action against

Hartman and others for violating his Fourth Amendment

rights by using excessive force. The defendants moved for

summary judgment, asserting the defense of qualified im-

munity for Officers Hartman, Griffin, and Palm. The district

court granted summary judgment for all defendants except

Officer Hartman. The court found that, when viewing the ev-

idence in the light reasonably most favorable to the plaintiff,

that claim presented genuine issues of material fact for a jury

to decide. The court found that a jury would need to decide

whether it was reasonable for an officer in Hartman’s position

to believe that plaintiff Gant had a gun. The court also found

that “a reasonable juror could conclude either that Plaintiff

was in the process of obeying Defendant Hartman’s com-

mands or that he did not have the opportunity to obey De-

fendant Hartman’s commands.” Because of these factual dis-

putes, the district court denied Hartman’s motion for sum-

mary judgment based on qualified immunity. Hartman has

appealed.

III. Appellate Jurisdiction

A denial of summary judgment is generally an unappeal-

able interlocutory order because it is not a “final decision” for

No. 18-1287 5

purposes of 28 U.S.C. § 1291. Ortiz v. Jordan, 562 U.S. 180, 188

(2011). There is an exception for appeals based on the denial

of qualified immunity. Mitchell v. Forsyth, 472 U.S. 511, 530

(1985). An order denying qualified immunity on summary

judgment can be appealed immediately as a collateral order

that amounts to a final decision on the defendant’s right not

to stand trial. See Plumhoff v. Rickard, 572 U.S. 765, 771–72

(2014); Gutierrez v. Kermon, 722 F.3d 1003, 1009 (7th Cir. 2013)

(dismissing interlocutory appeal of denial of qualified im-

munity because appellant’s argument depended on disputed

fact), citing Mitchell, 472 U.S. at 524–30.

A denial of qualified immunity can be appealed, however,

only “to the extent that it turns on an issue of law.” Mitchell,

472 U.S. at 530. The Supreme Court held in Johnson v. Jones

that a defendant cannot appeal an order denying immunity

“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). When the district court concludes that fac-

tual disputes prevent the resolution of a qualified immunity

defense, “these conclusions represent factual determinations

that cannot be disturbed in a collateral-order appeal.” Jones v.

Clark, 630 F.3d 677, 681 (7th Cir. 2011); see also Gutierrez, 722

F.3d at 1010 (“[A]n appellant challenging a district court’s de-

nial of qualified immunity effectively pleads himself out of

court by interposing disputed factual issues in his argu-

ment.”). An appellate court may not “make conclusions about

which facts the parties ultimately might be able to establish at

trial,” nor may it “reconsider the district court’s determina-

tion that certain genuine issues of fact exist.” McKinney v. Du-

plain, 463 F.3d 679, 688 (7th Cir. 2006), quoting Leaf v. Shelnutt,

400 F.3d 1070, 1078 (7th Cir. 2005).

6 No. 18-1287

To establish appellate jurisdiction, therefore, the party

seeking review must invoke “a purely legal argument that

does not depend on disputed facts.” White v. Gerardot, 509

F.3d 829, 833 (7th Cir. 2007) (dismissing interlocutory appeal

from denial of qualified immunity because defendant failed

to base legal arguments either on facts assumed by district

court or alleged by plaintiff). Appellate jurisdiction is also im-

proper when the appellant’s supposedly legal arguments “are

dependent upon, and inseparable from, disputed facts.” Id. at

835.

White illustrates this rule in a very similar case (except that

the suspect in that case died from the officer’s shot). In White

the defendant officer claimed that he feared for his life be-

cause he believed the suspect had a gun and, despite the of-

ficer’s commands to raise his hands, moved his hands in front

of him “as if he were reloading his gun.” Id. at 834. The plain-

tiff, however, offered testimony that the suspect was neither

armed nor disobeying orders when the officer shot him. The

district court denied summary judgment based on qualified

immunity because of the disputed factual issues. We dis-

missed the defendant’s interlocutory appeal of that denial be-

cause the defendant’s argument necessarily depended on and

was inseparable from his version of the facts. Id. at 836–37.

The defendant’s reliance on disputed facts in White barred

appellate jurisdiction. To appeal a denial of qualified immun-

ity, an appellant must “refrain[] from contesting any fact that

a reasonable jury could resolve against him.” Rainsberger v.

Benner, 913 F.3d 640, 643 (7th Cir. 2019) (affirming denial of

qualified immunity). The appellant’s argument therefore

must accept the facts and reasonable inferences favorable to

the plaintiff or the facts assumed by the district court’s

No. 18-1287 7

decision. Johnson, 515 U.S. at 319; Gutierrez, 722 F.3d at 1009;

see also Jackson v. Curry, 888 F.3d 259, 263 (7th Cir. 2018) (dis-

missing interlocutory appeal because appellant did not raise

a pure legal issue). The line between appealable and non-ap-

pealable orders established by Johnson can often be difficult to

apply. See Gutierrez, 722 F.3d at 1011. The key is that the legal

argument cannot depend entirely on disputed facts. An ap-

peal making an otherwise purely legal argument may, how-

ever, survive “the mere mention” of disputed facts. Id.

There is also a narrow, pragmatic exception allowing ap-

pellants to contest the district court’s determination that ma-

terial facts are genuinely disputed. In Scott v. Harris, the Su-

preme Court found the defendant police officer could dispute

the district court’s finding that a genuine factual dispute ex-

isted because a video recording of the incident “utterly dis-

credited” the plaintiff’s testimony that he was driving care-

fully. 550 U.S. 372, 380–81 (2007). The video recording of the

plaintiff driving erratically during a high-speed chase was ir-

refutable evidence that he “posed an actual and imminent

threat to the lives” of others and that, as a matter of pure law

in light of that incontestable fact, the defendant used reason-

able force to stop him. Id. at 383–84.

We recently applied this reasoning in Dockery v. Blackburn,

finding that the plaintiff’s version of the facts was discredited

by video evidence. 911 F.3d 458, 466 (7th Cir. 2018) (reversing

denial of qualified immunity because, despite conflicting ver-

sions of the facts, video evidence showed there was no genu-

ine issue of material fact). The plaintiff in Dockery argued that

the video of his arrest was subject to multiple interpretations

and that he did not intend to resist the officers. We found,

however, that the video plainly showed that Dockery was

8 No. 18-1287

“uncooperative and physically aggressive” toward the offic-

ers and “wildly kicked” in their direction as they attempted

to handcuff him. Id. at 467.

Other courts applying this narrow Scott exception have

stressed that it applies only in the rare case at the “outer limit”

of the principle established by Johnson. E.g., Bishop v. Hackel,

636 F.3d 757, 769 (6th Cir. 2011); Blaylock v. City of Philadelphia,

504 F.3d 405, 414 (3d Cir. 2007). “Scott does not hold that

courts should reject a plaintiff’s account on summary judg-

ment whenever documentary evidence, such as a video, offers

some support for a governmental officer’s version of events.”

Witt v. West Virginia State Police, Troop 2, 633 F.3d 272, 276 (4th

Cir. 2011). Instead, Scott holds that “where the trial court’s de-

termination that a fact is subject to reasonable dispute is bla-

tantly and demonstrably false, a court of appeals may say so,

even on interlocutory review.” Blaylock, 504 F.3d at 414 (dis-

missing appeal in relevant part where video did not blatantly

and demonstrably contradict plaintiff’s version); accord, Witt,

633 F.3d at 276–77 (same). While the video in Dockery demon-

strated facts reaching this outer limit, it should be considered

a rare case. It does not apply where the video record is subject

to reasonable dispute.

In this case, Officer Hartman has not satisfied any of the

routes to interlocutory appellate jurisdiction under § 1291. He

accepts neither the facts most favorable to the plaintiff nor the

facts assumed by the district court; in fact, he has openly con-

tested the facts throughout his briefs and oral argument.1

1 See, e.g., Appellant’s Reply Br. at 3 (“Contrary to the district court’s

opinion, a reasonable juror could not conclude that Gant was in the pro-

cess of obeying Hartman’s commands.”); id. (“[T]he district court did not

set forth a single disputed material issue of fact.”); Oral Arg. 4:05 (“The

No. 18-1287 9

Officer Hartman has consistently relabeled certain facts as

“undisputed,” and he asks this court to challenge the district

court’s determination that material facts are genuinely dis-

puted. Officer Hartman has asserted repeatedly that it is un-

disputed that Gant was not attempting to surrender. That is

correct, but Gant contends that he was not resisting arrest

when he was shot and that he was either attempting to com-

ply with orders or did not have time to respond to those or-

ders when Officer Hartman shot him in that critical second, as

we described above. Officer Hartman cannot pursue an inter-

locutory appeal by arguing that the evidence is insufficient to

support the district court’s conclusion or by relabeling the dis-

puted facts as “undisputed.” These add up to “a back-door

effort to contest the facts.” Jones v. Clark, 630 F.3d 677, 680 (7th

Cir. 2011); see also Thompson v. Cope, 900 F.3d 414, 420 (7th Cir.

2018).

Absent irrefutable evidence, we may not use an interlocu-

tory appeal to second-guess the district court’s conclusion

that material facts are disputed. We have watched the videos

of Gant’s shooting and arrest, and we have reviewed the

frame-by-frame analysis by Hartman’s expert witness. Unlike

the footage in Scott and Dockery, the videos in this case do not

“utterly discredit” Gant’s contentions that he was trying to

comply with orders or did not have time to respond to Officer

Hartman’s commands. The recordings show Gant standing in

the doorway, his arm extended holding the door, and then his

arm lowering slightly before Officer Hartman fired. All of this

undisputed facts show that [Gant] was not surrendering when he was shot

and that he posed a threat of serious bodily harm or death to Officer Hart-

man at the time he discharged his firearm.”); id. at 6:40 (“The district court

was wrong and there are no disputed facts.”).

10 No. 18-1287

occurs within a single second. This is not comparable to Dock-

ery where the plaintiff actively pushed and kicked at officers,

thus “utterly discrediting” his claim that he had not resisted

arrest. Nor do the videos here provide irrefutable proof that

it was reasonable for Officer Hartman to believe Gant was

holding a gun when he was shot. Outside of irrefutable evi-

dence like that in Scott and Dockery, an appellate court is not

in the position to decide on interlocutory appeal what facts

may eventually be established at trial by a reasonable fact-

finder. See McKinney v. Duplain, 463 F.3d 679, 688 (7th Cir.

2006).

Officer Hartman claims that he is entitled to qualified im-

munity because his actions did not violate Gant’s constitu-

tional rights and, even if they did, those rights were not

clearly established on or before August 23, 2015. To make this

argument, however, Officer Hartman asks in effect that we re-

solve facts that the district court treated as disputed. Officer

Hartman relies on several cases, such as Ford v. Childers, 855

F.2d 1271 (7th Cir. 1988), and Tom v. Voida, 963 F.2d 952 (7th

Cir. 1992), to support his claim that his use of deadly force was

reasonable. However, the facts of those police-action shoot-

ings were not comparable to the district court’s version of the

evidence here most favorable to plaintiff Gant. The armed

suspect in Ford was attempting to flee when he was shot. 855

F.2d at 1275. The suspect in Tom was actively engaged in a

violent struggle with the officer when she used deadly force.

963 F.2d at 955. Our decisions show that it is unreasonable to

use deadly force against a suspect who is not resisting arrest

and who is genuinely attempting to surrender. See, e.g., Miller

v. Gonzalez, 761 F.3d 822, 829 (7th Cir. 2014) (“This prohibition

against significant force against a subdued suspect applies

notwithstanding a suspect’s previous behavior—including

No. 18-1287 11

resisting arrest, threatening officer safety, or potentially car-

rying a weapon.”); see also Alicea v. Thomas, 815 F.3d 283, 292

(7th Cir. 2016) (It is “clearly established that using a signifi-

cant level of force on a non-resisting or a passively resisting

individual constitutes excessive force.”). To answer the ques-

tion of reasonableness as a matter of law, we would need to

resolve disputed issues of material fact about that critical one

second.

Because Officer Hartman’s appellate argument relies on

disputed facts and he has not presented sufficient evidence to

“utterly discredit” the district court’s findings, this court lacks

jurisdiction over this interlocutory appeal. The appeal is

DISMISSED.