Appellate Jurisdiction – Qualified Immunity

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7^th Circuit Court of Appeals

Case Name: Jerry Smith, Jr., v. Melvin Finkley, et al.,

Case No.: 20-1754

Officials: SYKES, Chief Judge, and BRENNAN and ST. EVE, Circuit Judges.

Focus: Appellate Jurisdiction – Qualified Immunity

Jerry Smith, Jr. reportedly left the scene of a fight and returned with a gun. After a citizen complained, two Milwaukee police officers on patrol came upon Smith and saw that he matched the description relayed by dispatch. When the officers approached Smith to investigate, he fled. The officers followed, believing Smith was armed.

Smith was found hiding on a rooftop one block away, and when the pursuing officers discovered him, an intense and dangerous standoff took place. After Smith refused numerous orders to cooperate, two other officers—Melvin Finkley and Adam Stahl, the defendants here—approached Smith, and believing he was armed, drew their guns. What followed is disputed: the officers thought Smith was reaching down behind an air conditioning unit for a gun, and Smith said he was responding to an earlier command to get down on the ground. Finkley and Stahl shot Smith three times. He survived but with serious injuries. Video from the officers’ body cameras captured these events.

Smith sued under 42 U.S.C. § 1983 and alleged excessive force in violation of the Fourth Amendment. The officers moved for summary judgment, arguing that their use of force was reasonable as a matter of law and that qualified immunity shielded them from liability. After the district court denied the officers’ motion, they filed this interlocutory appeal of the denial of qualified immunity. In this posture, appellate jurisdiction is limited: we can resolve an abstract legal question, but not factual disputes that are important to and inseparable from the qualified immunity defense.

As we must, we consider this court’s jurisdiction in view of Smith’s claim of unreasonable use of deadly force and the officers’ qualified immunity defense. That assessment, from the perspective of a reasonable officer on the scene, evaluates whether the totality of the circumstances justified seizure by shooting. Some of those circumstances weighed in favor of the police using deadly force to seize Smith. But in the short time frame before and when the officers shot Smith, factual disputes exist about how much of a threat Smith posed and how actively he was resisting. The qualified immunity decision depends upon and cannot be separated from these disputes, which are integral to the merits of Smith’s claim. Because we cannot resolve these factual disputes, we dismiss this appeal for lack of jurisdiction.

Dismissed

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Derek A Hawkins is Corporate Counsel, at Salesforce.