Blake Stewardson v. Cameron Biggs

In the

United States Court of Appeals

For the Seventh Circuit

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No. 21-3118

BLAKE STEWARDSON,

Plaintiff-Appellee,

v.

CAMERON BIGGS,

Defendant-Appellant.

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Appeal from the United States District Court for the

Northern District of Indiana, South Bend Division.

No. 3:18-cv-00958-DRL-MGG – Damon R. Leichty, Judge.

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ARGUED MAY 25, 2022 — DECIDED AUGUST 5, 2022

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Before RIPPLE, ROVNER, and JACKSON-AKIWUMI, Circuit

Judges.

JACKSON-AKIWUMI, Circuit Judge. We have explained many

times that we do not have jurisdiction to review qualified im-

munity denials on interlocutory appeal when the district

court’s decision, or the appellant’s arguments, turn on dis-

putes of material fact. See, e.g., Bayon v. Berkebile, 29 F.4th 850,

856 (7th Cir. 2022); Ferguson v. McDonough, 13 F.4th 574, 584

(7th Cir. 2021); Day v. Wooten, 947 F.3d 453, 459 (7th Cir. 2020),

2 No. 21-3118

cert. denied sub nom. Shanika Day v. Wooten, 141 S. Ct. 1449

(2021); Gant v. Hartman, 924 F.3d 445, 451 (7th Cir. 2019); Dock-

ery v. Blackburn, 911 F.3d 458, 465–66 (7th Cir. 2018). Yet we

continue to receive appeals from officers who challenge dis-

trict court orders denying them qualified immunity because

of disputed facts. So, we repeat: we may review district court

orders denying qualified immunity on interlocutory appeal

only when the appellant brings “a purely legal argument that

does not depend on disputed facts.” Ferguson, 13 F.4th at 580

(quotation omitted).

The interlocutory appeal before us does not meet this cri-

terion. Rather, Deputy Cameron Biggs’s argument is “insepa-

rable from the questions of fact identified by the district

court” and presents no purely legal issue. Koh v. Ustich, 933

F.3d 836, 838 (7th Cir. 2019). We therefore dismiss this appeal

for lack of jurisdiction.

I

We recount the facts in the light most favorable to Blake

Stewardson, the nonmoving party. Smith v. Finkley, 10 F.4th

725, 729 (7th Cir. 2021). Around midnight on January 1, 2018,

a City of Logansport officer arrested and transported Stew-

ardson to the Cass County, Indiana, jail for operating a motor

vehicle while intoxicated and resisting law enforcement. At

the jail, Stewardson argued with officers, yelled obscenities at

them, and resisted their efforts to control him. Stewardson al-

leges that five incidents of excessive force took place that

morning; three are relevant to this appeal. First, Biggs’s sub-

ordinate, Deputy Christopher Titus, slammed Stewardson’s

face into a wall while Stewardson was handcuffed behind his

back. Biggs witnessed the face slam but failed to admonish

Titus not to use additional excessive force on Stewardson or

No. 21-3118 3

restrict Titus’s access to Stewardson. One minute later, after

Titus and Biggs escorted Stewardson to a cell, Titus per-

formed a “leg sweep” on handcuffed Stewardson and caused

Stewardson to hit the ground. Biggs also witnessed this inci-

dent. Lastly, later that morning, Titus entered Stewardson’s

cell and used a “hip toss” to take Stewardson to the ground.

Biggs did not witness the hip toss.

Stewardson brought suit under 42 U.S.C. § 1983 against

the City of Logansport, Biggs, Titus, and other officers alleg-

ing violations of his Fourteenth Amendment rights stemming

from the alleged excessive force incidents. The district court

interpreted Stewardson’s complaint as alleging failure to in-

tervene claims against Biggs for not intervening when Titus

used excessive force, although he did not explicitly label these

claims in his complaint.

After discovery, Biggs sought summary judgment based

on qualified immunity. The district court concluded that

Biggs was entitled to qualified immunity for not intervening

when Titus performed the hip toss (which Biggs did not see),

but it denied Biggs qualified immunity for not intervening

when Titus performed the leg sweep. The court explained that

“it is clearly established that officers have a duty to intervene

when a realistic opportunity would prevent use of excessive

force on handcuffed individuals, individuals who are not or

have stopped resisting arrest, and even individuals resisting

law enforcement.” Stewardson v. Cass Cnty., No. 3:18-CV958

DRL-MGG, 2021 WL 4806373, at *3 (N.D. Ind. Oct. 14, 2021)

(citing Miller v. Smith, 220 F.3d 491, 495 (7th Cir. 2000); Yang v.

Hardin, 37 F.3d 282, 285-86 (7th Cir. 1994); Byrd v. Brishke, 466

F.2d 6, 9-11 (7th Cir. 1972); Byrd v. Clarke, 783 F.2d 1002, 1007

(11th Cir. 1986); and Webb v. Hiykel, 712 F.2d 405, 408 (8th Cir.

4 No. 21-3118

1983)). The court reasoned that “[o]nly moments before Dep-

uty Titus tripped and slammed a handcuffed Mr. Stewardson

onto the ground, Deputy Biggs witnessed him slam Mr. Stew-

ardson into a wall. Deputy Biggs was present and witnessed

both uses of excessive force.” Id. It concluded that “construing

the facts in the light most favorable to Mr. Stewardson, Dep-

uty Titus’[s] conduct would have been obvious as a violation

to Deputy Biggs by mere observation that his fellow deputy

was using excessive force.” Id.

Biggs appeals this denial of qualified immunity.

II

Biggs argues that he is entitled to qualified immunity be-

cause he did not have sufficient time or opportunity to pre-

vent Titus from leg sweeping Stewardson. Before considering

the merits of Biggs’s argument, we must first determine

whether we have jurisdiction to review this appeal. We con-

clude that we do not.

Generally, “a district court’s denial of summary judgment

is an unappealable interlocutory order because it is not a ‘final

decision’” under 28 U.S.C. § 1291. Bayon, 29 F.4th at 853 (cita-

tions omitted). A narrow exception applies to this rule when

a district court denies a defendant’s request for qualified im-

munity. Id. at 854. An interlocutory appeal of a qualified im-

munity denial is appealable to the extent that it turns on issues

of law. Id. (citation omitted). “[O]ur review is therefore con-

fined to abstract issues of law” at this interlocutory stage, and

our “appellate jurisdiction is secure only if the relevant mate-

rial facts are undisputed or (what amounts to the same thing)

when the defendant accepts the plaintiff’s version of the facts

No. 21-3118 5

as true for now.” Id. at 854, 856 (citations and quotation omit-

ted).

To determine whether Biggs’s qualified immunity argu-

ments turn on legal issues only, we “closely examine”

whether: (1) the district court “identifie[d] factual disputes as

the reason for denying qualified immunity;” and (2) Biggs

“make[s] a back-door effort to use disputed facts” to support

his arguments. Smith, 10 F.4th at 736 (citations and quotation

omitted). When we answer yes to both questions, as we do

here, we lack jurisdiction over the appeal.

First, the district court denied Biggs qualified immunity

based on a factual dispute: whether Biggs had a realistic op-

portunity to intervene to prevent Titus from leg sweeping

Stewardson. It is clearly established that “[a]n officer who is

present and fails to intervene to prevent other law enforce-

ment officers from infringing the constitutional rights of citi-

zens is liable under § 1983 if that officer had reason to know

… excessive force was being used,” and “the officer had a re-

alistic opportunity to intervene to prevent the harm from oc-

curring.” Yang, 37 F.3d at 285 (citations omitted). See also Gill

v. City of Milwaukee, 850 F.3d 335, 342 (7th Cir. 2017). 1 A real-

istic opportunity to intervene may exist if an officer could

have “called for a backup, called for help, or at least cautioned

[the officer] to stop.” Yang, 37 F.3d at 285. The realistic oppor-

tunity analysis “almost always implicate[s] questions of fact

for the jury: Whether an officer had sufficient time to

1 This rule flows directly from this court’s 1972 holding in Byrd v. Brishke

that “it is clear that one who is given the badge of authority of a police

officer may not ignore the duty imposed by his office and fail to stop other

officers who summarily punish a third person in his presence or otherwise

within his knowledge.” 466 F.2d at 11.

6 No. 21-3118

intervene or was capable of preventing the harm caused by

the other officer is generally an issue for the trier of fact un-

less, considering all the evidence, a reasonable jury could not

possibly conclude otherwise.” Abdullahi v. City of Madison, 423

F.3d 763, 774 (7th Cir. 2005) (emphasis omitted) (citation and

quotation omitted). The district court found the analysis in

this matter to be no different.

According to Stewardson, after Biggs witnessed Titus

slam him into a wall, but before the officers took Stewardson

to the cell where Titus performed the leg sweep, Biggs had a

realistic opportunity to intervene because he could have ad-

monished Titus or denied Titus further access to Stewardson.

Meanwhile, Biggs argued that he did not have sufficient time

and opportunity to intervene. The district court concluded

that whether Biggs had a realistic opportunity to prevent Ti-

tus from leg sweeping Stewardson was therefore a disputed

fact that precluded the court from granting Biggs qualified

immunity at summary judgment.

Second, Biggs’s arguments on appeal are “dependent

upon, and inseparable from” that disputed fact we just iden-

tified. Smith, 10 F.4th at 736 (citations and quotation omitted).

Biggs acknowledges for purposes of this appeal that he

“could have verbally admonished Titus not to use any addi-

tional excessive force” after he slammed Stewardson’s head

against the wall and he “could have restricted Titus’[s] access

to Stewardson and gotten other law enforcement officers …

[to] escort Stewardson.” But he argues that he did not have

“sufficient time or opportunity to intervene” because the leg

sweep happened moments after they entered the cell, he did

not know Titus was going to employ a leg sweep, and Stew-

ardson was on the ground quickly after Titus initiated and

No. 21-3118 7

completed the leg sweep. Essentially, Biggs asks us to recon-

sider the district court’s conclusion that a jury could find that

the timing of events gave him enough time to reasonably in-

tervene. We will not do so. See Bayon, 29 F.4th at 853–54. His

appeal illuminates that his arguments are “inseparable from

the questions of fact identified by the district court.” Koh, 933

F.3d at 838. We thus lack jurisdiction to review this appeal.

Separately, we note that although the district court found

that a factual dispute precluded granting Biggs qualified im-

munity at summary judgment, Biggs is not foreclosed from

asserting qualified immunity at trial. See Ferguson v.

McDonough, 13 F.4th 574, 584 (7th Cir. 2021). “At trial, a jury

may resolve disputed facts in [Biggs’s] favor, and the district

court could then determine he is entitled to qualified immun-

ity as a matter of law.” Id. (citations omitted).

III

For the reasons above, we DISMISS this appeal for lack of

jurisdiction.