In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 19-3355 

ESTATE OF CHRISTOPHER J. DAVIS, et al., 

Plaintiffs-Appellees,

v.

JUAN ORTIZ, 

Defendant-Appellant. 

____________________ 

Appeal from United States District Court for the 

Eastern District of Wisconsin. 

Case No. 18-CV-1846-JPS — J.P. Stadtmueller, Judge. 

____________________ 

ARGUED SEPTEMBER 21, 2020 — DECIDED FEBRUARY 5, 2021 

____________________ 

Before WOOD, BRENNAN, and SCUDDER, Circuit Judges. 

WOOD, Circuit Judge. Deputy Juan Ortiz shot Christopher 

Davis in the head on February 24, 2016, during a drug bust 

that went awry. Arguing that Ortiz unreasonably seized Davis in violation of the Fourth Amendment, Davis’s Estate sued 

Ortiz for money damages under 42 U.S.C. § 1983. Ortiz responded with an assertion of qualified immunity, but the 
2 No. 19-3355 

district court rejected it, holding that disputes of material fact 

on which immunity depended had to be resolved by the trier 

of fact. 

Ortiz has appealed from the denial of qualified immunity. 

But our 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. See Johnson v. Jones, 515 U.S. 304 

(1995). Neither condition is present here, and so we must dismiss Ortiz’s appeal for want of jurisdiction. 

I 

The underlying facts of the case are depressingly familiar. 

Police from the Village of East Troy, Wisconsin, were conducting an operation designed to nab drug dealers. Officer Jeffrey 

Price hoped to conduct a “sting” operation, using a confidential informant (CI) to lure Roberto Juarez-Nieves into delivering cocaine. The CI arranged to meet Nieves at Roma’s, a local 

restaurant. Nieves showed up in a Pontiac Bonneville, along 

with Davis and Jose Lara, who was driving. Lara parked the 

Bonneville in the crowded restaurant lot, next to an empty 

Grand Marquis. Just as the police arrived in their marked 

squad car and started to park behind the Grand Marquis, Lara 

began slowly to pull out of his parking spot. Officer Craig 

Knox had to step aside to avoid the car. As Lara headed for 

the exit, Deputy Juan Ortiz, who was standing 50 feet away to 

participate in the drug bust, fired four shots into the car. One 

of those shots hit Davis. Lara kept driving for a brief time, but 

he crashed the car. The police apprehended both Lara and 

Nieves as they fled on foot, and medical personnel pronounced Davis dead. 
No. 19-3355 3 

This lawsuit followed on behalf of Davis’s Estate. The Estate argued that Ortiz’s use of deadly force was unreasonable 

for purposes of the Fourth Amendment and sought damages. 

See California v. Hodari D., 499 U.S. 621, 625–26 (1991) (a person is seized if police use physical force to bring him under 

control). It accepted Ortiz’s statement that he did not intend 

specifically to shoot Davis, but it disputed Ortiz’s assertion 

that he meant to shoot only the driver, Lara. The district court 

found that Ortiz’s testimony was not enough to establish as a 

matter of law that Ortiz was aiming exclusively for the driver. 

Christopher v. Ortiz, No. 18 CV 01846, 2019 WL 6310559 (E.D. 

Wis. Nov. 25, 2019) (“Dist. Ct.”). Instead, Ortiz said that his 

“intent was to stop the threat that was coming at [him],” and 

he agreed that “firing into the vehicle was the way to stop that 

threat[.]” Based on that account, the district court found, “a 

jury could conclude that Ortiz was shooting at the car generally to make it stop, rather than at the driver or any other particular area of the vehicle.” The court also found that a reasonable jury could conclude that deadly force was excessive 

in the circumstances presented, if one were to accept the Estate’s evidence over that of the police. It thus denied Ortiz’s 

motion for qualified immunity. Relying on cases such as Harlow v. Fitzgerald, 457 U.S. 800 (1982), and Behrens v. Pelletier, 

516 U.S. 299 (1996), Ortiz filed an interlocutory appeal from 

the district court’s order. 

II 

A 

The Supreme Court has long recognized the private and 

social costs of dragging government officials into civil litigation. See Harlow, 457 U.S. at 816 (discussing liability and litigation costs, but also the “distraction of officials from their 
4 No. 19-3355 

governmental duties, inhibition of discretionary action, and 

deterrence of able people from public service”). To strike a 

balance between addressing constitutional injuries committed by state actors and limiting the costs of section 1983 suits, 

it has held that the common-law doctrine of “qualified immunity” applies in most cases against executive officials, including the police. Id. at 807. 

As the Court recently put it, “officers are entitled to qualified immunity under § 1983 unless (1) they violated a federal 

statutory or constitutional right, and (2) the unlawfulness of 

their conduct was clearly established at the time.” District of 

Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quotation marks 

omitted); see also Pearson v. Callahan, 555 U.S. 223 (2009). 

Qualified immunity is meant to protect “all but the plainly incompetent or those who knowingly violate the law.” Mullenix 

v. Luna, 577 U.S. 7, 8 (2015). It is essential to evaluate the public 

official’s conduct at the correct level of granularity. See id.; Anderson v. Creighton, 483 U.S. 635, 640 (1987). The unlawfulness 

of challenged conduct is “clearly established” for this purpose 

only if it is “dictated by controlling authority or a robust consensus of cases of persuasive authority,” such that it would be 

“clear to a reasonable officer that his conduct was unlawful in 

the situation he confronted.” Wesby, 138 S. Ct. at 589–90 (quotation marks omitted). 

Once a government official invokes qualified immunity in 

a section 1983 suit, the burden shifts to the plaintiff to defeat 

the defense by showing (1) that a trier of fact could conclude 

that the officer violated a federal right, and (2) that the unlawfulness of the conduct was clearly established at the time the 

officer acted. Id. at 589. If the plaintiff cannot do so, the motion 

for summary judgment must be granted. See Thompson v. 
No. 19-3355 5 

Cope, 900 F.3d 414, 420 (7th Cir. 2018). This reflects the fact that 

the entitlement that qualified immunity protects is, in the first 

instance, “an immunity from suit rather than a mere defense to 

liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Defendants are authorized to, and often do, invoke qualified immunity in a summary-judgment motion. 

B 

Collateral orders, such as an order denying a motion for 

qualified immunity, are immediately appealable “final decisions” under 28 U.S.C. § 1291 if they conclusively determine 

the disputed question, resolve an issue completely separate 

from the merits, and are effectively unreviewable on appeal 

from a final judgment. Forsyth, 472 U.S. at 530; see Cohen v. 

Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). 

In Forsyth, the Supreme Court held that a denial of a public 

official’s summary-judgment motion asserting qualified immunity was immediately appealable under Cohen “to the extent” that the denial turned “on an issue of law.” 472 U.S. at 

530. For example, a court of appeals might review “whether 

the legal norms allegedly violated by the defendant were 

clearly established at the time of the challenged action,” or 

“whether the law clearly proscribed the actions the defendant 

claims he took.” Id. at 528. Such issues, the Court reasoned, 

satisfy Cohen’s requirements for a conclusive and unreviewable determination, because an order denying qualified immunity settles the question and forces the public official to 

stand trial. Once the trial has taken place, the official has incurred the very costs the doctrine is designed to avoid, and 

thus any review that can occur at the end of the case is limited 

at best. Id. at 525–27. The Court concluded that if “qualified 

immunity is in part an entitlement not to be forced to litigate 
6 No. 19-3355 

the consequences of official conduct,” then a “a claim of immunity is conceptually distinct,” and therefore separate, 

“from the merits of the plaintiff’s claim that his rights have 

been violated.” Id. at 527–28. 

But when the district court’s denial stems from a finding 

that genuine issues of material fact remain to be resolved, and 

thus summary judgment is unavailable, the order denying the 

motion is not immediately appealable. Johnson, 515 U.S. at 

313. In these cases, unlike in cases involving “abstract issues 

of law,” the “fact-related legal issues” pertaining to the immunity defense may collapse into the merits of the plaintiff’s 

claim, violating Cohen’s separability requirement. Id. at 314, 

317. 

The only qualification occurs when the officer seeking immunity is willing to take the factual issues off the table and 

accept (for purposes of the qualified immunity motion) the 

factual account plaintiff has presented. Johnson does not preclude appellate review in that situation. Jones v. Clark, 630 F.3d 

677, 680 (7th Cir. 2011); Thompson, 900 F.3d at 419. We are thus 

entitled to “consider[] the abstract legal question of whether 

a given set of undisputed facts demonstrates a violation of 

clearly established law. ... In reviewing this purely legal question, we take the facts as the district court assumed them 

when denying summary judgment, Johnson, 515 U.S. at 

319, or in [the] light most favorable to the plaintiff, the nonmovant ... .” Gutierrez v. Kermon, 722 F.3d 1003, 1009 (7th Cir. 

2013). Nonetheless, if we “detect a back-door effort to contest 

the facts,” we will dismiss the appeal for want of jurisdiction. 

Clark, 630 F.3d at 680; see, e.g., Stinson v. Gauger, 868 F.3d 516, 

525–26 (7th Cir. 2015) (dismissing on jurisdictional grounds 

where defendant’s briefs contradicted the district court’s 
No. 19-3355 7 

factual findings and failed to construe the evidence in the 

light most favorable to the plaintiff). 

III

The district court identified a number of genuine issues of 

fact in the summary-judgment record before it. Among other 

things, the court found it unclear from the record “what Ortiz 

was actually shooting at when he fired towards the [Bonneville.]” Dist. Ct. at *7. As we pointed out earlier, while Ortiz 

contended that “he was aiming at Lara to the exclusion of anyone else,” the district court found this assertion undermined 

by Ortiz’s own statement that “his ‘intent was to stop the 

threat that was coming at [him]’ and that ‘firing into the vehicle was the way to stop that threat[.]’” Dist. Ct. at *5. A rational 

jury could find, based on that statement, that he intended to 

hit either the moving Bonneville or any of the people in it. Or 

the jury might believe him when he said that he was targeting 

only the driver (although even that much might not resolve 

the legal issues). This leaves a critical disputed issue of material fact on the question whether Ortiz acted in an objectively 

reasonable way as he was firing. For purposes of the qualifiedimmunity inquiry, these facts, taken in the light most favorable to the Estate, suffice to allege a constitutional violation. 

See, e.g., Leaf v. Selnutt, 400 F.3d 1070, 1081 (7th Cir. 2005). 

Ortiz has not fully accepted the Estate’s version of the 

facts, and so he cannot defend our appellate jurisdiction on 

that basis. Indeed, he comes closer to asking us to accept his 

version of the facts over the Estate’s. He characterizes the district court and the parties as “unequivocally agree[ing] that 

Deputy Ortiz did not intend to shoot Davis, but instead 

that [Ortiz] was focused on the driver of the vehicle.” Pet. 

Brief at 13. That is not what the record shows. The district 
8 No. 19-3355 

court specifically found that at “no time did Ortiz state that 

he was aiming his weapon solely at [the driver] in such a manner as to eliminate all potential inferences otherwise.” Dist. 

Ct. at *5. And Davis maintains that Ortiz “intended to shoot 

at the vehicle to stop it,” without regard to any particular occupant. Ortiz replies that these competing accounts are not 

“mutually exclusive” because when Ortiz fired his gun, he 

“‘was focused on Lara as the driver,’ and he intended to stop 

the vehicle.” 

Given the fact that this is a Fourth Amendment case, all 

this talk of intent is largely beside the point. The Supreme 

Court has made it clear that “Fourth Amendment reasonableness is predominantly an objective inquiry.” See, e.g., Ashcroft 

v. al-Kidd, 563 U.S. 731, 736 (2011) (quotation marks omitted). 

The pertinent question is whether a jury could find that 

Ortiz’s actions—firing repeatedly at a moving vehicle as it 

was leaving the parking lot—were objectively unreasonable 

under all the circumstances, and thus amount to a Fourth 

Amendment violation. There is evidence to support a finding 

that Ortiz was aiming at the car as a whole. As part of that 

effort, he discharged four bullets, one of which fatally injured 

Davis. At trial, Ortiz will have an opportunity to convince the 

jury that his actions were objectively reasonable, but we cannot resolve that question at this stage. 

IV 

Just as in Johnson, the record on summary judgment in this 

appeal reveals issues that must be resolved by the trier of fact. 

Ortiz has not raised “a question that is significantly different 

from the questions underlying plaintiff’s claim on the merits,” 

515 U.S. at 314; rather, he raises the same fact-based question 
No. 19-3355 9 

about the objective reasonableness of his seizure of Davis that 

the jury must resolve. 

We DISMISS the appeal for lack of jurisdiction.