Alhadji Bayon v. Marshall Berkebile

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 21-1125

ALHADJI F. BAYON,

Plaintiff-Appellee,

v.

MARSHALL BERKEBILE, et al.,

Defendants-Appellants.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:18-cv-01122 — Richard L. Young, Judge.

____________________

ARGUED SEPTEMBER 29, 2021 — DECIDED MARCH 28, 2022

____________________

Before EASTERBROOK, RIPPLE, and ST. EVE, Circuit Judges.

RIPPLE, Circuit Judge. In this action brought under 42 U.S.C.

§ 1983, Alhadji Bayon alleges that Marshall Berkebile, Mat-

thew York, and Robbin Myers, officers of the Indianapolis

Metropolitan Police Department, violated his Fourth Amend-

ment rights by employing excessive force during his appre-

hension. In due course, the officers moved for summary judg-

ment on the ground of qualified immunity. The district court

denied the officers’ motion, concluding that the facts relevant

2 No. 21-1125

to their qualified immunity argument were in dispute. The of-

ficers now appeal the district court’s ruling. For the reasons

set forth in this opinion, we dismiss the appeal for lack of ap-

pellate jurisdiction.

I

BACKGROUND

A.

On the morning of December 24, 2017, Mr. Bayon at-

1

tempted to rob a gas station in Indianapolis, Indiana. He fled

the scene in a white Chevrolet Traverse. Numerous police of-

ficers learned of the attempted robbery over their police ra-

dios and, with their emergency lights activated, gave chase.

Mr. Bayon refused to stop, and, consequently, a high-speed

pursuit through residential areas ensued.

To end this dangerous situation, one of the pursuing of-

ficers, Officer Theodore Brink, executed a maneuver with his

car that resulted in the Traverse spinning and crashing into a

tree in the front yard of a home. Officer York, a recruit officer

in training riding with Officer Brink, exited the police vehicle

and stood behind the passenger-side door. Officer Myers

reached the scene shortly after the crash and positioned her

police vehicle about twenty-five feet from Mr. Bayon’s vehi-

cle. Officer Berkebile also arrived at the scene after the crash,

1 Due to the COVID-19 protocols at his correctional facility, Mr. Bayon

was unable to review all the evidence the defendants presented in support

of their motion for summary judgment or respond to the motion, thus we

do not have his version of the facts other than those given in his deposi-

tion. Our account of the facts comes from the facts assumed by the district

court and the evidence submitted on the officers’ summary judgment mo-

tion, construed in Mr. Bayon’s favor.

No. 21-1125 3

parked his vehicle about thirty to forty yards away, and po-

sitioned himself on his knees behind his vehicle’s engine

block facing Mr. Bayon’s Traverse.

Using a loudspeaker, Officer Myers ordered Mr. Bayon to

exit the Traverse multiple times. Mr. Bayon did not immedi-

ately comply with these orders; the officers indicated that he

took several minutes to exit the vehicle. Each of the officers

had a clear view of the driver-side door, but because the door

had been damaged in the crash and the airbags had de-

ployed, the officers could not see inside the Traverse.

Mr. Bayon testified in his deposition that he was dazed

from hitting his head during the collision. Moreover, the

damage from the crash made it difficult for him to open the

door of the Traverse. Eventually, he was able to force the

door open and exit the vehicle. On the street Mr. Bayon saw

ten to fifteen police officers and heard two conflicting com-

2

mands: to put his hands up and to show identification. He

reached toward his back right pants pocket for his wallet. The

officers responded to his movements by shooting him. Three

bullets hit Mr. Bayon, and he fell face-first to the ground.

Once he was on the ground, the officers approached him and

rolled him over. Mr. Bayon stated that once he was rolled

2 R.152 at 4. In his deposition, Mr. Bayon described the following scene:

“There were a bunch of demands being made. Now, I was told, I was told

put your hands up, put your hands up. Then I heard show identification.

Put your hands up. Like there was a bunch of demands. A bunch of yell-

ing, a bunch of yelling. So I made, I made the movement as to go in my

back pocket to reach for my ID, reach for my wallet, and then that’s when

I felt—the first bullet I felt was the one in my right thigh, I mean, my right

upper thigh which spun me around.” R.97-4 at 41:5–14.

4 No. 21-1125

over, one of the officers said, “Oh, my God, he doesn’t have

3

a weapon.”

The officers present a different version of the events. Fol-

lowing Officer Myers’s orders to exit the Traverse, the offic-

ers reported that it took Mr. Bayon approximately five

minutes to exit the vehicle. Prior to his exit, Officer Myers

observed the Traverse rocking back and forth. Officer Myers

thought he could be digging around for something in the ve-

hicle. After Mr. Bayon finally exited the vehicle, the officers

saw him take several aggressive steps towards Officer Myers.

Each officer also saw him reach for something in or near his

waistband. Officer Berkebile saw him reach for the front of

his waistband, not his back pocket. Officer Myers saw

Mr. Bayon reach down and lift up his t-shirt where she saw

a black, hard object with a ribbed handle and thought it was

a gun. Officer York saw Mr. Bayon lift his shirt and reach for

a black object in the waistband of his pants. He also heard

4

other officers yell “gun” before shots were fired. After roll-

ing Mr. Bayon over while he was on the ground, Officers

York and Myers saw another officer pull “a car jack handle,

5

about 2 feet long” out of his pant leg. When asked by Officer

Myers why he did it, Mr. Bayon told her that he “wanted to

3 R.152 at 5; R.97-4 at 42:8–10.

4 R.97-3 at 3.

5 R.97-2 at 4; R.97-3 at 4.

No. 21-1125 5

6

die.” In his deposition, Mr. Bayon stated that he did not re-

7

call making that statement.

B.

Mr. Bayon brought this action against the officers, alleg-

ing that the shooting was unreasonable and violated his

Fourth Amendment rights. The officers moved for summary

judgment, asserting that their use of force was justified and

that, in any event, they were entitled to qualified immunity

because their conduct did not violate clearly established law.

After setting forth the facts in the light most favorable to

Mr. Bayon, the district court determined the record presented

8

a genuine issue of material fact for a jury to decide. Relying

on Strand v. Minchuk, 910 F.3d 909, 915 (7th Cir. 2018), the dis-

trict court concluded that “[a] reasonable jury could find that,

when the officers shot Mr. Bayon, he was ‘subdued and com-

9

plying with the officer[s’] orders.’” And if Mr. Bayon was

complying with the officers’ orders at the time of the shooting,

then the jury would be obligated to find that the officers em-

ployed an unreasonable use of force. The district court further

noted that “Mr. Bayon testified that he did not reach for his

waistband, but for his back pocket—and that he did so in

10

compliance with the officers’ orders.” Because the facts

6 R.97-2 at 4.

7 R.97-4 at 60; 17–22.

8 R.152 at 8.

9 Id.

10 Id.

6 No. 21-1125

underlying the officers’ qualified immunity argument were in

dispute, the district court denied the officers’ motion for sum-

mary judgment.

II

DISCUSSION

We begin with an examination of our appellate jurisdic-

tion. As a general proposition, a district court’s denial of sum-

mary judgment is an unappealable interlocutory order be-

cause it is not a “final decision” as that term is employed in

28 U.S.C. § 1291. Ortiz v. Jordan, 562 U.S. 180, 188 (2011);

Thompson v. Cope, 900 F.3d 414, 419 (7th Cir. 2018). The judici-

ary has recognized an exception to this rule when a district

court denies summary judgment on the ground that the de-

11

fendants are not entitled to qualified immunity. Because

qualified immunity protects the public officer from the ex-

pense and distraction of having to stand trial when the con-

duct in question did not violate clearly established law, the

unavailability of an immediate interlocutory appeal would

render any later reversal of the district court’s decision

11 A qualified immunity defense “shields federal and state officials from

money damages unless a plaintiff demonstrates that the official violated a

statutory or constitutional right and that the right was ‘clearly established’

at the time of the challenged conduct.” Howell v. Smith, 853 F.3d 892, 897

(7th Cir. 2017) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)).

Whether a defendant officer is entitled to qualified immunity thus in-

volves two inquiries: “(1) whether the facts, taken in the light most favor-

able to the plaintiff, make out a violation of a constitutional right, and

(2) whether that constitutional right was clearly established at the time of

the alleged violation.” Williams v. City of Chicago, 733 F.3d 749, 758 (7th Cir.

2013).

No. 21-1125 7

illusory. See Estate of Davis v. Ortiz, 987 F.3d 635, 639 (7th Cir.

12

2021).

This exception to the final decision rule is, however, a very

narrow one. The denial of qualified immunity is only appeal-

able to the extent that it turns on an issue of law, White v.

Gerardot, 509 F.3d 829, 833 (7th Cir. 2007), our review is there-

fore confined to abstract issues of law, see Johnson v. Jones,

515 U.S. 304, 317 (1995). We may not reconsider the district

court’s determination that certain genuine issues of fact exist.

Id. at 319–20.

Here the nature of the claim is fact intensive. Mr. Bayon

asserts that the officers violated his Fourth Amendment right

that protects individuals from law enforcement officers’ un-

reasonable use of force. When evaluating excessive force

claims, the court has to “consider ‘the facts and circumstances

of each particular case, including the severity of the crime at

issue, whether the suspect poses an immediate threat to the

safety of the officers or others, and whether he was actively

resisting arrest or attempting to evade arrest by flight.’” Siler

v. City of Kenosha, 957 F.3d 751, 758–59 (7th Cir. 2020) (quoting

Graham v. Connor, 490 U.S. 386, 396 (1989)). In undertaking

this task, the court must assess the totality of the circum-

stances from the perspective of a reasonable officer on the

12 See also Plumhoff v. Rickard, 572 U.S. 765, 772 (2014) (noting that “this

immunity issue is both important and completely separate from the merits

of the action, and this question could not be effectively reviewed on appeal

from a final judgment because by that time the immunity from standing

trial will have been irretrievably lost”); Mitchell v. Forsyth, 472 U.S. 511, 526

(1985) (“The entitlement is an immunity from suit rather than a mere de-

fense to liability; and like an absolute immunity, it is effectively lost if a

case is erroneously permitted to go to trial.”).

8 No. 21-1125

scene. As we have noted, the very nature of this task often

makes summary judgment in these cases inappropriate. See

Abdullahi v. City of Madison, 423 F.3d 763, 773 (7th Cir. 2005)

(observing that, because “the Graham reasonableness inquiry

nearly always requires a jury to sift through disputed factual

contentions, and to draw inferences therefrom, … summary

judgment … in excessive force cases should be granted spar-

ingly” (internal quotation marks omitted)). When material

facts are disputed, a jury must resolve those disputes and de-

termine whether the officers acted reasonably.

Here, the district court determined that the facts underly-

ing Mr. Bayon’s claim were in dispute. The district court

noted that Mr. Bayon testified that he did not reach for his

waistband, but for his back pocket—“and that he did so in

13

compliance with the officers’ orders.” The court also noted

that “[t]he only evidence that Mr. Bayon possessed a weapon

is the officers’ testimony, which is inconsistent and—more

14

importantly—rebutted by Mr. Bayon’s testimony.”

Mr. Bayon also testified in his deposition, “There were a

bunch of demands being made. Now, I was told, I was told

put your hands up, put your hands up. Then I heard show

15

identification.” Thus, a reasonable jury could find that

Mr. Bayon was subdued and complying with the officers’ or-

ders when he was shot.

The officers’ submission that they are entitled to qualified

immunity is based on their own version of the facts, not on

13 R.152 at 8.

14 Id. at 7.

15 R.97-4 at 41:5–7.

No. 21-1125 9

the facts taken in the light most favorable to Mr. Bayon. The

officers assert they are entitled to qualified immunity because

“no clearly established law put them on notice that their con-

16

duct would violate Bayon’s rights.” In making this argu-

ment, however, the officers necessarily assumed the ac-

ceptance of their version of numerous disputed facts: whether

Mr. Bayon was compliant with their orders; whether he

walked aggressively towards the officers; whether he reached

for the object in his waistband or for his back pocket; and

whether there was a black object in his waistband. The officers

offer inferences from their version of the facts supportive of

their characterization of Mr. Bayon’s movements as aggres-

sive. They posit that Mr. Bayon “initially ignored commands

to exit his vehicle, then walked aggressively toward an officer

17

with an object that appeared to be a gun in his waistband.”

They emphasize that the officers saw “Bayon walk aggres-

18

sively with tense muscles and a scowl on his face.” They

urge that although “Bayon may have appeared to be comply-

ing with officer orders to show identification, … his aggres-

sive, purposeful, fast steps toward Officer Myers were threat-

19

ening because he was not yet under officers’ control.”

The fundamental difficulty with the officers’ argument is

that both the facts offered by the officers and their characteri-

zation of those facts conflict with Mr. Bayon’s account and the

16 Appellants’ Br. 9.

17 Id.

18 Id. at 13.

19 Id. at 15 (citation omitted).

10 No. 21-1125

permissible inferences that can be drawn from his rendition.

Mr. Bayon explained that he had difficulty opening the

driver’s side door and exiting his vehicle due to the damage

from the crash. He also described feeling dazed and dishev-

eled upon exiting the vehicle and facing a large police force.

He testified that he took two or three steps forward but had

no plans to do anything because he was “just one guy,” and

20

he knew “it was over.” In his deposition, Mr. Bayon stated

that after exiting the vehicle, he “maybe took two or three,

21

maybe two or three steps. [But] I didn’t advance.” By con-

trast, the officers portray Mr. Bayon as walking aggressively

with tense muscles and a scowl on his face. Mr. Bayon also

contested the assertion that he had a large black metal pipe in

22

his pants.

The situation here is different from the one presented to

us in Siler v. City of Kenosha. In Siler, the record made clear

that, at the time he confronted the officer, Mr. Siler belliger-

ently defied the officer’s directions to get on the ground and

dared the officer to shoot him. 957 F.3d at 760. It was also un-

disputed that, during the confrontation, Mr. Siler, who was

significantly larger and younger than the police officer, be-

came more aggressive and escalated the conflict into a one-

on-one standoff in a garage with bystanders present. Id. In

that situation, we concluded that the undisputed operative

20 R.97-4 at 46:5–15.

21 Id. at 44:22–24.

22 Mr. Bayon asserted in his deposition that he believed the black pipe

found on the ground near where he was apprehended “was planted to

justify them shooting me.” Id. at 47:11–16.

No. 21-1125 11

facts justified the lone officer’s conclusion that he was facing

the immediate threat of an overpowering attack. Id.

Here, by contrast, there remain serious questions about

the degree of resistance, if any, that Mr. Bayon displayed at

23

the time the officers acted. Mr. Siler “had refused every op-

portunity to surrender during the chase.” Id. at 760. While

Mr. Bayon failed to surrender during the car chase, the facts

could support a finding that, upon exiting the vehicle, he was

surrendering and reaching for his identification. The officers

contend that Mr. Bayon was not subdued or under control at

the time of the shooting, but as the district court correctly de-

termined, a reasonable jury could find otherwise. The officers

are not asking us to accept the “facts assumed by the district

court, supplemented as appropriate only by the undisputed

24

evidence viewed in the light most favorable to [Mr. Bayon].”

Instead, the officers’ legal arguments are premised on their

version of the facts, which the district court correctly deter-

mined were genuinely disputed.

“[O]ur appellate jurisdiction is secure only if the relevant

material facts are undisputed or (what amounts to the same

thing) when the defendant accepts the plaintiff’s version of

the facts as true for now.” Est. of Davis, 987 F.3d at 637 (citing

Johnson, 515 U.S. 304). Therefore, as we have noted earlier, a

party may not seek to invoke our jurisdiction when its argu-

ments are dependent on, and inseparable from, disputed

23 Mr. Bayon testified to the following, “it was a big police presence, like

the whole street was blocked off. I mean, there was police all over the

whole street.” Id. at 45:4–6.

24 Appellants’ Br. 1.

12 No. 21-1125

facts. Gant v. Hartman, 924 F.3d 445, 449 (7th Cir. 2019) (citing

White, 509 F.3d at 835); Gutierrez v. Kermon, 722 F.3d 1003,

1010–11 (7th Cir. 2013). Although the officers suggest other-

wise, they “are not asking us for review of an abstract ques-

tion of law, but rather they seek a reassessment of the district

court’s conclusion that sufficient evidence existed for [Bayon]

to go to trial.” Stinson v. Gauger, 868 F.3d 516, 526 (7th Cir.

2015); see also Jones v. Clark, 630 F.3d 677, 680 (7th Cir. 2011).

Here, the parties disagree as to what exactly happened af-

ter Mr. Bayon exited the vehicle and prior to the gunshots be-

ing fired. Did Mr. Bayon pose a threat to a reasonable officer

after he exited his vehicle? How immediate was the threat?

Did he continue to resist arrest? These issues present the “un-

certainties and unresolved material questions of fact” that

must be resolved by a factfinder before liability can be as-

sessed. Smith v. Finkley, 10 F.4th 725, 741 (7th Cir. 2021).

“These factual disputes bear on the objective reasonableness

of the force used to arrest Mr. [Bayon], and therefore a trial is

required before a determination can be made as to whether

[the officers are] entitled to qualified immunity.” Chelios v.

Heavener, 520 F.3d 678, 692 (7th Cir. 2008). Because they re-

main unresolved at this juncture, we cannot entertain an ap-

peal based on whether, as a matter of law, the defendant of-

ficers are entitled to qualified immunity.

CONCLUSION

We dismiss the appeal for lack of jurisdiction. Mr. Bayon

may recover his costs of this appeal.

APPEAL DISMISSED