### In the 

# United States Court of Appeals For the Seventh Circuit

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No. 19-3355
E STATE OF C HRISTOPHER J. D AVIS, et al. , Plaintiffs-Appellees,

v.
J UAN O RTIZ , Defendant-Appellant

.

____________________ Appeal from United States District Court for the Eastern District of Wisconsin. Case No. 18-CV-1846-JPS — J.P. Stadtmueller , Judge

.

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A RGUED S EPTEMBER 21, 2020

— D ECIDED F EBRUARY 5, 2021

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Before W OOD , B RENNAN , and S CUDDER , Circuit Judges

. W OOD , 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 suedOrtiz for money damages under 42 U.S.C. § 1983. Ortiz responded with an assertion of quali fi ed immunity, but the2 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 quali fi ed 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 plainti ff’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. O ffi cer Je ff rey Price hoped to conduct a “sting” operation, using a con fi dential informant (CI) to lure Roberto Juarez-Nieves into delivering cocaine. The CI arranged to m eet 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 restau rant 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. O ffi cer 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, fi red 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 fl ed 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 Ame ndment and sought damages. See California v. Hodari D ., 499 U.S. 621, 625–26 (1991) (a person is seized if police use phys ical force to bring him under control). It accepted Ortiz’s st atement that he did not intend speci fi cally to shoot Davis, but itdisputed Ortiz’s assertion that he meant to shoot onlythe driver, Lara. The district court found that Ortiz’s testimony was not enough to establish as a

ma tt er 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 “ fi ring 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 excessivein the circumstances presented, if one were to accept the Estate’s evidence over that of th e police. It thus denied Ortiz’s motion for quali fi ed immunity. Relying on cases such as Harlow v. Fi tzgerald, 457 U.S. 800 (1982), and Behrens v. Pelletier , 516 U.S. 299 (1996), Ortiz fi led 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 o ffi cials into civil litigation. See Harlow , 457 U.S. at 816 (discussing liability and litigation costs, but also the “distraction of o ffi cials from their4 No. 19-3355

governmental duties, inhibitionof discretionary action, and deterrence of able people from public service”). To strike abalance 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 “quali fi ed immunity” applies in most cases against executive o ffi cials, including the police. Id. at 807. As the Court recently put it, “o ffi cers are entitled to qualifi ed 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 omi tt ed); see also Pearson v. Callahan , 555 U.S. 223 (2009). Quali fi ed 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

o ffi cial’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 “clearl y established” for this purpose only if it is “dictated by cont rolling authority or a robust consensus of cases of persuasive au thority,” such that it would be “clear to a reasonable o ffi cer that his conduct was unlawful in the situation he confronted.” Wesby, 138 S. Ct. at 589–90 (quotation marks omi tt ed). Once a government o ffi cial invokes quali fi ed immunity in a section 1983 suit, the burden shifts to the plainti ff to defeat the defense by showing (1) that a trier of fact could conclude that the o ffi cer violated a federal righ t, and (2) that the unlawfulness of the conduct was clearly established at the time the

o ffi cer acted. Id . at 589. If the plainti ff 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 re fl ects the fact that the entitlement that quali fi ed immunity protects is, in the fi rst instance, “animmunity 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 quali fi ed immunity in a summary-j udgment motion.

B Collateral orders, such as anorder denying a motion for quali fi ed immunity, are immediately appealable “ fi nal decisions” under 28 U.S.C. § 1291 if they conclusively determine the disputed question, resolve an issue completely separate from the merits, and are e ff ectively unreviewable on appeal from a fi nal judgment. Forsyth , 472 U.S. at 530; see Cohen v. Bene fi cial Industrial Loan Corp. , 337 U.S. 541 (1949).
In Forsyth , the Supreme Court held that a denial of a public

o ffi cial’s summary-judgment motion asserting quali fi ed immunity was immediately appealable under Cohen “to the extent” that the denial turned “o n 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 quali fi ed immunity se tt les the question and forces the public o ffi cial to stand trial. Once the trial has taken place, the o ffi cial 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 “quali fi ed immunity is in part an entitlement not to be forced to litigate6 No. 19-3355

the consequences of o ffi cial conduct,” then a “a claim of immunity is conceptually distinct,” and therefore separate, “from the merits of the plainti ff ’s claim that his rights have been violated.” Id . at 527–28.
But when the district cour t’s denial stems from a fi nding 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 ca ses involving “abstract issuesof law,” the “fact-related legal issues” pertaining to the immunity defense may collapse into the merits of the plainti ff’s claim, violating Cohen ’ s separability requirement. Id . at 314, 317. The only quali fi cation occurs when the o ffi cer seeking immunity is willing to take the factual issues o ff the table and accept (for purposes of the quali fi ed immunity motion) the factual account plainti ff 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 abst ract legal question of whether a given set of undisputed facts demonstrates a violation ofclearly 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 plainti ff, the nonmovant ... .” Gutierrez v. Kermon , 722 F.3d 1003, 1009 (7th Cir. 2013). Nonetheless, if we “detect a back-door e ff ort to contest the facts,” we will dismiss the ap peal 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’sNo. 19-3355 7

factual fi ndings and failed to construe the evidence in the light most favorable to the plainti ff ).
III
The district court identi fi ed a number of genuine issues of fact in the summary-judgment record before it. Among other things, the court found it uncle ar from the record “what Ortiz was actually shooting at when he fi red towards the [Bonneville.]” Dist. Ct. at *7. As we pointed out earlier, while Ortiz contended that “he was aiming atLara to the exclusion of anyone else,” the district court fo und this assertion undermined by Ortiz’s own statement that “his ‘intent was to stop the threat that was coming at [him]’ and that ‘ fi ring into the vehicle was the way to stop that thre at[.]’” Dist. Ct. at *5. A rational jury could fi nd, based on that statement, that he intended to hit either the moving Bonneville or any of the peop le in it. Or the jury might believe him when he said that he was targeting only the driver (although eventhat much might not resolve the legal issues). This leaves a critical disputed issue of material fact on the question whethe r Ortiz acted in an objectively reasonable way as he was fi ring. For purposes of the quali fi edimmunity inquiry, these facts, taken in the light most favorable to the Estate, su ffi ce to allege a constitutional violation. See, e.g. , Leaf v. Selnu tt, 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 hisversion of the facts over the Estate’s. He characterizes the district court and the parties as “u nequivocally 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 district8 No. 19-3355

court speci fi cally 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,” with out regard to any particular occupant. Ortiz replies that thes e competing accounts are not “mutually exclusive” because when Ortiz fi red his gun, he “‘was focused on Lara as the driver,’ andhe 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 omi tt ed). The pertinent question is whether a jury could fi nd that Ortiz’s actions— fi ring repeatedly at a moving vehicle as it was leaving the parking lot—were objectively unreasonable under all the circumstances, an d thus amount to a Fourth Amendment violation. There is evidence to support a fi nding that Ortiz was aiming at the car as a whole. As part of that

e ff ort, he discharged four bullets , one of which fatally injured Davis. At trial, Ortiz will have an opportunity to convince thejury 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 signi fi cantly di ff erent from the questions underlying plainti ff’s claim on the merits,” 515 U.S. at 314; rather, he raises th e same fact-based questionNo. 19-3355 9

about the objective reasonableness of his seizure of Davis that the jury must resolve.
We D ISMISS the appeal for lack of jurisdiction.