Joseph Ferguson v. Ryan McDonough

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 20-2741

JOSEPH S. FERGUSON,

Plaintiff-Appellee,

v.

RYAN MCDONOUGH,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 2:19-cv-00055-NJ — Nancy Joseph, Magistrate Judge.

____________________

ARGUED APRIL 14, 2021 — DECIDED SEPTEMBER 8, 2021

____________________

Before MANION, ST. EVE, and KIRSCH, Circuit Judges.

KIRSCH, Circuit Judge. Our jurisdiction over this interlocu-

tory appeal turns on a police dashcam video that captured po-

lice officer Ryan McDonough’s arrest of Joseph Ferguson, in-

cluding the moment he tased Ferguson. Ferguson sued Of-

ficer McDonough under 42 U.S.C. § 1983, alleging that Officer

McDonough violated his Fourth Amendment rights by using

excessive force to effectuate his arrest. Following discovery,

the parties cross-moved for summary judgment, both

2 No. 20-2741

asserting that the dashcam video supported granting sum-

mary judgment in their favor. The district court disagreed

that the video resolved the parties’ factual disputes and de-

nied both motions.

This appeal concerns only the denial of Officer

McDonough’s motion, which asserted that he was entitled to

summary judgment because qualified immunity shielded

him from civil liability for any damages Ferguson sustained

from the arrest. The district court concluded that when the

facts were viewed in a light most favorable to Ferguson, one

reasonable interpretation of the dashcam video was that Fer-

guson was not actively resisting arrest when Officer

McDonough tased him. It further concluded that a reasonable

officer would have known by the time of Ferguson’s tasing

that an officer’s escalation of force in response to an individ-

ual not actively resisting violated the Fourth Amendment’s

proscription against excessive force. Because one view of the

evidence supported that Ferguson was not actively resisting

when Officer McDonough tased him, a jury could reasonably

find that Officer McDonough’s use of the taser was unreason-

ably excessive under the circumstances. Accordingly, the dis-

trict court held that Officer McDonough was not entitled to

summary judgment on his qualified immunity defense.

On appeal Officer McDonough argues that the dashcam

video contradicts the district court’s finding that the video is

open to interpretation because the video clearly shows that

Ferguson was actively resisting arrest moments before Officer

McDonough tased him, and that Ferguson continued to argue

with Officer McDonough while raising his hands. Under

these circumstances, Officer McDonough contends that his

No. 20-2741 3

deployment of the taser was objectively reasonable, and

hence, he is entitled to qualified immunity.

We have jurisdiction to review the merits of Officer

McDonough’s appeal only if the dashcam video utterly dis-

credits the district court’s finding that there was a factual dis-

pute over whether Ferguson was actively resisting when Of-

ficer McDonough tased him. It does not, so we must dismiss

his appeal for lack of appellate jurisdiction.

I

Our recount of the facts largely tracks the district court’s

account at summary judgment. Ryan McDonough is a police

officer with the Kenosha Police Department. On July 9, 2018,

he and fellow officer Kyle Kinzer were dispatched to an apart-

ment building located at 6100 24th Avenue in Kenosha, Wis-

consin, in response to a 911 report of disorderly conduct. The

911 call was placed by the building’s manager who reported

that there was a woman inside the building in Joseph Fergu-

son’s apartment who was “causing problems” and did not

live there.

Ferguson was not present when the two officers arrived at

the building. Upon arrival, Officer Kinzer spoke with the

building manager who stated that he did not witness any

fighting between Ferguson and the woman, Cloey Rupp-

Kent. Meanwhile Officer McDonough spoke with Rupp-Kent

who was, at that time, alone inside Ferguson’s apartment.

Rupp-Kent told Officer McDonough that she and Ferguson

had been fighting earlier in the day. Ferguson had left the

apartment for a few hours but then reportedly came back bel-

ligerent. Upon returning, Ferguson allegedly kicked an air

conditioning unit out of a window, knocked a phone out of

4 No. 20-2741

Rupp-Kent’s hands, punched her in the face, laid on top of her

on the bed, pointed a knife at her chest, and threatened to stab

her. While in the apartment, Officer McDonough observed

bruises on Rupp-Kent’s leg and neck, and redness on her face.

He also observed the knife Ferguson purportedly pointed at

her and collected it into evidence.

After speaking with Rupp-Kent, Officer McDonough went

outside to his squad car to complete paperwork on the inci-

dent. There, he learned that Ferguson was on probation for

robbery, had his driving privileges revoked, and drove a

Chrysler. He also reviewed Ferguson’s booking photo.

While Officer McDonough was completing the paper-

work, he saw Ferguson drive past him in a Chrysler. Officer

McDonough followed Ferguson’s car without his squad car

lights activated. Ferguson then turned two corners, pulled

over, and parked his car in front of what Ferguson later indi-

cated was his mother’s house (which Officer McDonough did

not know at the time). As Ferguson exited his car, Officer

McDonough activated his squad car lights and repeatedly

yelled at him to stay in the car.

The parties have different accounts of what happened

next. For his part, Ferguson contends that he got out of his car

to ask Officer McDonough why he was being pulled over, to

which Officer McDonough merely responded, “you’re under

arrest.” Ferguson asserts that Officer McDonough then ag-

gressively approached him, shoved him, and gave him two

contradictory commands: to place his hands on top of his car

and also behind his back. Ferguson states that since he could

not simultaneously do both, he placed “one hand on top of

the car and one behind [his] back.” Although it is undisputed

that a tussle ensued next as Officer McDonough went to

No. 20-2741 5

handcuff Ferguson, Ferguson says the tussle occurred be-

cause Officer McDonough was “pushing him around” and

was so rough with him that he pulled off all his clothes. The

parties do not dispute that the tussle between them ended

with Officer McDonough deploying a taser at Ferguson. Fer-

guson however claims that the taser was unnecessary because

he was not resisting arrest and had surrendered with both

hands in the air when Officer McDonough tased him.

Officer McDonough disagrees and claims Ferguson was

actively resisting arrest. He contends that when he ap-

proached Ferguson after Ferguson got out of his car, he at-

tempted to turn Ferguson toward the car so that he could

handcuff him behind his back, but Ferguson pulled one arm

free. Officer McDonough says he then twice told Ferguson to

stop resisting arrest but Ferguson nevertheless continued to

resist. According to Officer McDonough, the tussle followed

because he attempted to “decentralize” Ferguson by taking

him to the ground which resulted in his clothes coming off,

but Ferguson again resisted and was able to stand up despite

the take-down attempt. Officer McDonough states that he

subsequently deployed his taser for five seconds to get Fergu-

son under control, and that after Ferguson fell to the ground,

backup arrived to help him handcuff Ferguson. Officer

McDonough asserts that he justifiably tased Ferguson be-

cause he was concerned about his safety since he knew that

Ferguson had recently threatened Rupp-Kent with a knife,

and he did not have backup officers to assist him while Fer-

guson was actively resisting arrest.

After the taser incident, Ferguson was charged with sev-

eral crimes. Most of the charges were subsequently dismissed.

On October 10, 2018, Ferguson pled guilty to three charges

6 No. 20-2741

not relevant to this appeal. On January 8, 2019, Ferguson, pro-

ceeding pro se, sued Officer McDonough under § 1983 alleg-

ing that Officer McDonough subjected him to excessive force

by tasing him in violation of his Fourth Amendment rights.

As relevant here, Officer McDonough moved for summary

judgment, asserting the defense of qualified immunity. The

district court denied the motion.

In so doing, the district court concluded that, when con-

struing the facts in the light most favorable to Ferguson, Fer-

guson’s § 1983 claim presented genuine issues of material fact

for a jury to decide. The district court explained that Officer

McDonough and Ferguson had offered competing accounts

of the circumstances surrounding Ferguson’s arrest, and the

dashcam video of the incident did not conclusively support

either party’s account. For example, the district court deter-

mined that one reasonable interpretation of the video, which

was consistent with Ferguson’s version of events, “is that at

the point that [Officer] McDonough tased Ferguson, [Fergu-

son] was standing next to his car with his hands in the air,”

and “[a] reasonable jury could, thus, conclude that the use of

the taser was unnecessary and unreasonable.”

The district court noted, however, that “[a]nother reason-

able interpretation of the video, consistent with [Officer]

McDonough’s version of events, is that although Ferguson

was not physically resisting at the time that McDonough

tased him, Ferguson was struggling moments before

McDonough deployed his taser.” Accordingly, a reasonable

jury could also conclude that Officer McDonough’s use of the

taser was reasonable. Thus, the district court found that a jury

would need to draw inferences from the video and consider

the totality of circumstances to ultimately decide whether it

No. 20-2741 7

was reasonable for an officer in Officer McDonough’s position

to deploy a taser at Ferguson in this instance.

Because the video did not resolve the parties’ dispute and

“one reasonable interpretation of the videotape is that at the

point that [Officer] McDonough tased Ferguson” he was not

resisting arrest and thus “the use of the taser was unnecessary

and unreasonable,” the district court denied Officer

McDonough’s motion for summary judgment based on qual-

ified immunity. The district court explained that a reasonable

officer would have known, at the time of the taser incident on

July 9, 2018, that an officer’s substantial escalation of force in

response to an individual’s passive resistance violated the in-

dividual’s Fourth Amendment rights against excessive force.

See, e.g., Dockery v. Blackburn, 911 F.3d 458, 467 (7th Cir. 2018)

(noting one of this court’s guideposts in excessive force cases

is that “an officer may not use significant force (like a Taser)

against a ‘nonresisting or passively resisting’ subject” (quot-

ing Abbott v. Sangamon Cnty., 705 F.3d 706, 732 (7th Cir. 2013)).

And, the district court continued, our circuit had clearly es-

tablished by the time of the taser incident that it was uncon-

stitutional for an officer to escalate force on a passively resist-

ing individual. See, e.g., Alicea v. Thomas, 815 F.3d 283, 292 (7th

Cir. 2016) (“It [is] clearly established that using a significant

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

vidual constitutes excessive force.”). The district court there-

fore held that Officer McDonough was not entitled to quali-

fied immunity.

Officer McDonough now appeals the district court’s inter-

locutory order denying him qualified immunity on summary

judgment.

8 No. 20-2741

II

On appeal Officer McDonough asserts that he is entitled

to qualified immunity because (1) he did not commit a consti-

tutional violation because there is no dispute—based on the

dashcam video—that Ferguson was actively resisting, and (2)

he did not violate any clearly established constitutional right

because Ferguson has not cited any analogous case that

would cause an officer to know that it was constitutionally

prohibited for Officer McDonough to tase Ferguson once as a

result of him actively resisting.

Officer McDonough’s argument, of course, directly con-

tradicts the district court’s finding that a genuine issue of fact

exists as to whether Ferguson was actively resisting, given the

district court’s view that the dashcam video is open to inter-

pretation. Since we generally cannot review an interlocutory

order finding that a genuine factual dispute prevents the res-

olution of a defendant’s qualified immunity defense on sum-

mary judgment, we are unable to address the merits of Officer

McDonough’s interlocutory appeal unless we first determine

that we have jurisdiction over it. We hold that we do not.

A

Under 28 U.S.C. § 1291, this court may generally only ex-

ercise jurisdiction over appeals from final decisions of the dis-

trict court. A district court order denying summary judgment

is ordinarily unappealable since it is not a final decision under

§ 1291 but rather an interlocutory ruling. Ortiz v. Jordan, 562

U.S. 180, 188 (2011). The collateral order doctrine provides an

exception, allowing appeals from interlocutory rulings which

“finally determine claims of right separable from, and collat-

eral to, rights asserted in the action, too important to be

No. 20-2741 9

denied review and too independent of the cause itself to re-

quire that appellate consideration be deferred until the whole

case is adjudicated.” Cohen v. Beneficial Indus. Loan Corp., 337

U.S. 541, 546 (1949); see Mitchell v. Forsyth, 472 U.S. 511, 526–

29 (1985). Under the collateral order doctrine, an order deny-

ing qualified immunity on summary judgment typically can

be appealed immediately because it usually “amounts to a fi-

nal decision on the defendant’s right not to stand trial,” and

as such, is a collateral order. Gant v. Hartman, 924 F.3d 445,

448 (7th Cir. 2019); see Ortiz, 562 U.S. at 188 (citing Mitchell,

472 U.S. at 530). But not always.

An interlocutory order denying qualified immunity does

not constitute a final decision on the defendant’s right not to

stand trial when the district court denies summary judgment

on the ground that factual disputes exist which prevent the

resolution of the qualified immunity defense, see Levan v.

George, 604 F.3d 366, 369 (7th Cir. 2010)—just like the district

court did here. The law is clear that such an order is not im-

mediately appealable under the collateral order doctrine. See

Johnson v. Jones, 515 U.S. 304, 319–20 (1995) (an order denying

qualified immunity cannot be appealed “insofar as that order

determines whether or not the pretrial record sets forth a ‘gen-

uine’ issue of fact for trial”); Gutierrez v. Kermon, 722 F.3d 1003,

1009 (7th Cir. 2013) (“[W]e 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.”). Indeed,

“[i]f the denial of qualified immunity turns on factual rather

than legal questions, the denial is not properly subject to ap-

pellate jurisdiction under the collateral order doctrine be-

cause the decision is not ‘final.’” Levan, 604 F.3d at 369 (quota-

tion omitted).

10 No. 20-2741

The law is also clear that an appellate court reviewing such

an order may not “reconsider the district court’s determina-

tion that certain genuine issues of fact exist,” or “make con-

clusions about which facts the parties ultimately might be

able to establish at trial.” Gant, 924 F.3d at 448 (quoting

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

tablish appellate jurisdiction, then, the appellant must raise “a

purely legal argument that does not depend on disputed

facts.” White v. Gerardot, 509 F.3d 829, 833 (7th Cir. 2007); see

Gant, 924 F.3d at 448 (reiterating that an order denying quali-

fied immunity can be appealed only “to the extent that it turns

on an issue of law” (quoting Mitchell, 472 U.S. at 530)). This

means that an appellant who is challenging a district court’s

denial of qualified immunity “must accept the facts and rea-

sonable inferences favorable to the plaintiff or the facts as-

sumed by the district court’s decision.” Gant, 924 F.3d at 449.

Put differently, appellate jurisdiction is improper when the

appellant’s otherwise appealable legal argument is “depend-

ent upon, and inseparable from, disputed facts.” White, 509

F.3d at 835; see Gutierrez, 722 F.3d at 1010 (cautioning that an

appellant “effectively pleads himself out of court by interpos-

ing disputed factual issues in his [legal] argument”).

There is, however, one “narrow, pragmatic exception”

that allows an appellant to challenge the district court’s deter-

mination that genuine issues of fact exist: when a video of the

incident “utterly discredit[s]” the district court’s finding that

a genuine factual dispute prevents the resolution of the de-

fendant’s qualified immunity defense on summary judgment.

Gant, 924 F.3d at 449 (quoting Scott v. Harris, 550 U.S. 372, 380–

81 (2007)). Our jurisdiction in this case therefore depends on

whether the dashcam video utterly discredits the district

court’s finding that one view of the video supports that

No. 20-2741 11

Ferguson was not actively resisting arrest when Officer

McDonough tased him. A few cases instruct our inquiry.

In Scott v. Harris, the plaintiff was a fleeing motorist who

brought a § 1983 suit alleging that a police officer used exces-

sive force against him when the officer stopped him from flee-

ing by ramming his car from behind. 550 U.S. at 374. This con-

duct caused the plaintiff to lose control of his car, which over-

turned and crashed, resulting in serious injuries. Id. at 375.

The district court denied the officer’s motion for summary

judgment based on qualified immunity after determining that

a factual dispute existed over whether the plaintiff was driv-

ing in a way that endangered others. See id. at 378, 380. The

Supreme Court reversed. Id. at 376. It found that the plaintiff’s

version of events, which the district court adopted, was ut-

terly discredited by a video that showed the plaintiff was

“driving erratically during a high-speed chase,” contrary to

testimony that he was “driving carefully.” Gant, 924 F.3d at

449 (discussing Scott, 550 U.S. at 380–84). The Court accord-

ingly had jurisdiction to review the district court’s interlocu-

tory order denying qualified immunity as the video “was ir-

refutable evidence that [the plaintiff] ‘posed an actual and im-

minent threat to the lives’ of others.” Id. (quoting Scott, 550

U.S. at 383–84). “[I]n light of that incontestable fact,” the Court

held that the police officer used reasonable force to stop the

plaintiff “as a matter of pure law,” and thus was entitled to

qualified immunity. Id. (quoting Scott, 550 U.S. at 383–84).

This court in Dockery v. Blackburn similarly reversed the

district court’s interlocutory order denying officers qualified

immunity at summary judgment based on “irrefutable facts”

preserved on a booking-room video recording. 911 F.3d at

461. The plaintiff was arrested after a domestic dispute and

12 No. 20-2741

became confrontational with two officers who were finger-

printing him during the booking process. Id. at 461. In re-

sponse, the officers attempted to handcuff him to a bench;

things escalated from there, and the officers managed to

handcuff the plaintiff after deploying a taser at him four

times. Id. The plaintiff subsequently sued the officers for ex-

cessive force, and the district court denied the officers’ claim

for qualified immunity after construing the facts in the plain-

tiff’s favor. Id. The plaintiff testified that he did not intend to

resist the officers, but on appeal, this court concluded that the

booking video utterly discredited his version of events. Id. at

466. According to the court, the video “plainly showed that

[the plaintiff] was ‘uncooperative and physically aggressive’

toward the officers and ‘wildly kicked’ in their direction as

they attempted to handcuff him.” Gant, 924 F.3d at 449 (quot-

ing Dockery, 911 F.3d at 467). Under these circumstances, the

court determined it had jurisdiction to review the interlocu-

tory denial of qualified immunity. Dockery, 911 F.3d at 467.

And in light of the uncontested fact that the plaintiff was

physically aggressive (as shown by the video), the court held

that the officers used reasonable force in tasing the plaintiff,

entitling them to qualified immunity. Id.

B

We have carefully reviewed Officer McDonough’s dash-

cam video and have determined that this case is not like Scott

and Dockery because the dashcam video of Ferguson’s arrest

does not utterly discredit the district court’s finding that a

genuine issue of fact exists as to whether Ferguson was ac-

tively resisting arrest when Officer McDonough tased him.

Portions of the video are clear, but the rest is open to interpre-

tation, as the district court found. See Gant, 924 F.3d at 449–50

No. 20-2741 13

(explaining that the narrow video exception “applies only in

the rare case” and “does not apply where the video record is

subject to reasonable dispute”).

Here, the video begins with Officer McDonough following

Ferguson in his patrol vehicle, without any lights activated,

after Ferguson coincidentally drives by. After making a few

turns, he pulls up behind Ferguson as Ferguson parks his car

on the side of the road on a residential street. Right as Fergu-

son opens his car door and begins to step out of his car, Officer

McDonough activates his lights and starts shouting at Fergu-

son from inside his patrol car to “stay in the car!” Officer

McDonough repeats his command once Ferguson is com-

pletely out of the car, at which time Ferguson looks in Officer

McDonough’s direction, shuts the car door behind him, and

appears to say something (what Ferguson says is inaudible).

Officer McDonough responds, “Yeah you. Get back in the

car.” Officer McDonough utters these words while approach-

ing Ferguson, who is several steps away; Ferguson mean-

while stands stationary in the street just beside his car’s

driver’s-side door where he had exited. Ferguson is fully

clothed, wearing a hat, a white t-shirt with an unzipped

hoodie over it, and loose-fitting, long pants.

It is not obvious what happens next. As Officer

McDonough gets closer to Ferguson, Ferguson again states

something inaudible, and Officer McDonough responds, “Al-

right well then you’re under arrest then.” Officer McDonough

then puts his right hand on Ferguson’s left arm while facing

him and pushes Ferguson back towards his car. He next spins

Ferguson around so that he is directly up against and facing

the car, and Officer McDonough tells him to put his hands be-

hind his back. As Officer McDonough goes to grab Ferguson’s

14 No. 20-2741

hands to handcuff them, Ferguson turns his head to the right

and asks, “Why am I under arrest though?” At the same time,

Officer McDonough grabs hold of Ferguson’s right hand

while Ferguson lifts his left hand up above the car as Officer

McDonough tries to grasp it. Officer McDonough tells Fergu-

son, “Don’t resist, don’t resist,” and then pulls Ferguson’s left

arm back down behind his back while pushing him up against

the car.

A tussle occurs next, but much of what happens is unclear.

Ferguson and Officer McDonough stumble to the right to-

wards the back end of the car. Officer McDonough struggles

to handcuff Ferguson, who is moving, but it is hard to tell

from the video why he is moving—it could be because Fergu-

son is trying to escape Officer McDonough’s grasp, is falling

over from being pushed, is tripping over his pants that were

sliding down, or some other reason. A few seconds pass and

Officer McDonough states, “Get over here,” and pushes Fer-

guson’s torso down towards the street over Officer

McDonough’s leg. As Ferguson is hunched over Officer

McDonough’s leg with his head near his feet, Officer

McDonough pulls Ferguson’s hoodie, t-shirt, and hat off over

his head. Once Officer McDonough discards these clothing

items, no more than three seconds pass before Ferguson

stands up, leans away from Officer McDonough, and raises

his hands in front of him. His back is against his car, his hands

are open, and his pants are at his knees. In the same three sec-

onds, Ferguson says something (that is again inaudible) and

Officer McDonough steps a few feet back while facing Fergu-

son, grabs his taser, looks in Ferguson’s direction, and then

deploys his taser at Ferguson’s chest area once:

No. 20-2741 15

Ferguson immediately falls to the ground and another officer

enters the video screen for the first time to help Officer

McDonough finish handcuffing Ferguson.

The video does not utterly discredit the district court’s

holding that a reasonable jury could find, consistent with Fer-

guson’s version of events, that Ferguson was not actively re-

sisting when Officer McDonough tased him, and thus a rea-

sonable jury could conclude that Officer McDonough’s use of

the taser was objectively unreasonable under these circum-

stances. Officer McDonough suggests that Ferguson was ac-

tively resisting in this moment because it is “undisputed and

can be seen clearly on the squad video” that “Ferguson con-

tinued to argue while also partially raising his hands.” Appel-

lant’s Br. at 7. Not only is that a disputed fact, see R. 54 at ¶ 42

(Ferguson testifying that he wasn’t arguing), but we cannot

make out precisely what Ferguson says at this moment, so we

disagree that the video shows indisputably that Ferguson was

16 No. 20-2741

arguing when Officer McDonough tased him. Even if we ac-

cept that Ferguson was verbally arguing with Officer

McDonough at the moment of tasing, that fact would still not

utterly discredit the district court’s finding that one view of

the video favorable to Ferguson supports that he was not ac-

tively resisting when Officer McDonough tased him. Cf.

Becker v. Elfreich, 821 F.3d 920, 927 (7th Cir. 2016) (finding facts

supported that an individual who did not obey a command

to get on the ground was not actively resisting arrest because

there was evidence that the individual was not fleeing, was

not exhibiting any aggressive behavior, and was surrendering

with “his hands in full view over his head”).

Officer McDonough argues that Ferguson was actively re-

sisting at some point before Officer McDonough deployed the

taser, and that is enough to justify his use of the taser and

qualify him for immunity. But active resistance at some point

prior to an officer’s deployment of force does not necessarily

make the use of such force reasonable under the circum-

stances if the suspect is passively resisting when force is de-

ployed. It is unreasonable for an officer to use significant force

against a passively resisting suspect “notwithstanding [the]

suspect’s previous behavior—including resisting arrest,

threatening officer safety, or potentially carrying a weapon.”

Miller v. Gonzalez, 761 F.3d 822, 829 (7th Cir. 2014); see also

Strand v. Minchuk, 910 F.3d 909, 911–12 (7th Cir. 2018) (hold-

ing that the district court did not err in denying qualified im-

munity to a police officer at summary judgment because a ma-

terial question of fact existed as to whether an arrestee contin-

ued to pose a threat to the officer “at the exact moment the

officer fired the shot”). Here, the district court held that the

determination of whether Officer McDonough’s use of the

taser was objectively reasonable under the circumstances

No. 20-2741 17

depended on disputed facts, and the video does not utterly

discredit the district court’s finding. 1 If the district court had

held or if the video conclusively established that Ferguson

was actively resisting in the moment Officer McDonough

tased him, then we would have appellate jurisdiction because

the question of whether Officer McDonough’s actions were

objectively reasonable would be a pure question of law to be

resolved on undisputed facts. But those are not the circum-

stances here.

Because Officer McDonough’s arguments ask us to resolve

disputed issues of fact and the dashcam video does not utterly

discredit the district court’s findings, we lack jurisdiction over

this interlocutory appeal. The appeal is DISMISSED.

We note in closing that although the district court found

that the summary judgment record left factual issues unre-

solved, precluding a ruling on qualified immunity at that

stage of the case, this finding does not foreclose the

1 Officer McDonough also argues that even if he violated Ferguson’s

Fourth Amendment right when he tased Ferguson, that right was not

clearly established on the date the tasing incident occurred. But to decide

this question in Officer McDonough’s favor, we would first have to find

that the video utterly discredits the district court’s finding of disputed

facts, which, as explained above, we will not do. See District of Columbia v.

Wesby, 138 S. Ct. 577, 590 (2018) (“The ‘clearly established’ standard also

requires that the legal principle clearly prohibit the officer’s conduct in the

particular circumstances before him.”); Gant, 924 F.3d at 451 (“Officer

Hartman claims that he is entitled to qualified immunity because his ac-

tions did not violate Gant’s constitutional 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.”). So we leave that

issue for another day.

18 No. 20-2741

availability of qualified immunity to Officer McDonough at

trial. See Strand, 910 F.3d at 918. At trial, a jury may resolve

disputed facts in Officer McDonough’s favor, and the district

court could then determine he is entitled to qualified immun-

ity as a matter of law. Id.; see also Taylor v. City of Milford, —

F.4th —, 2021 WL 3673235, at *9 (7th Cir. 2021) (suggesting

use of special verdict form at trial to resolve factual disputes

necessary to determine qualified immunity).