1 On July 18, 2001 the case was reassigned from Judge Dillin to

Judge Young, who issued the decision from which Officer Wheeler

appeals.

In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 01-3825

DONNA GARVIN, Individually and as Personal

Representative of the Estate of Alexis Christopher

Garvin, deceased, and STEVE GARVIN,

Plaintiffs-Appellees,

v.

LAWRENCE A. WHEELER, JR.,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. IP 98-1243-C-Y/F—Richard L. Young, Judge.

____________

ARGUED APRIL 16, 2002—DECIDED AUGUST 28, 2002

____________

Before CUDAHY, COFFEY, and WILLIAMS, Circuit Judges.

COFFEY, Circuit Judge. This is a 42 U.S.C. § 1983 case

in which the plaintiffs claim that police officer Lawrence

Wheeler used excessive force against Alexis Garvin when

he shot and killed Garvin during the course of a burglary

investigation. On October 4, 2000, Judge S. Hugh Dillin1

denied Officer Wheeler’s motion for summary judgment,
2 No. 01-3825

ruling that there was a genuine issue of material fact

regarding Officer Wheeler’s credibility, which precluded

summary judgment. Over ten months after Judge Dillin

ruled on Officer Wheeler’s summary judgment motion,

Officer Wheeler filed a four-page motion before Judge

Young, requesting leave to renew his summary judgment

motion. Judge Young denied the defendant’s motion and

Wheeler appeals from that denial.

I. Factual Background

On August 29, 1996, at approximately 1:05 a.m., Indianapolis Police Department (IPD) Officer Ronald Mills

received a radio call that there was a burglary at Hart’s

Automotive in Indianapolis, Indiana. Officer Mills responded almost immediately to the call and was the first

officer to arrive at the automotive shop. Once Mills arrived at Hart’s, he observed that a panel had been removed from one of the building’s garage doors. Officer Mills

informed the dispatch operator that a burglary had occurred and, the operator, in turn, apprised assisting units

of the situation.

Shortly after Mills confirmed that a burglary had occurred, Officer Wheeler responded to the dispatch operator’s call and was approaching Hart’s from the west on

26th street, allowing him to intercept any suspects fleeing eastbound from the scene. As he approached the site

of the burglary, Wheeler spotted Alexis Garvin, walking

alone at a normal rate of speed. According to Wheeler,

Garvin was walking eastbound on 26th street (away

from the scene of the crime) and was not carrying anything

in his hands. Wheeler drove his marked police vehicle to

within 10-15 feet of Garvin and turned on the vehicle’s

“alley lights” so that the area in which Garvin was walking was illuminated. As he exited the vehicle, Wheeler

shined his flashlight at Garvin and asked what he was
No. 01-3825 3

doing there, but failed to identify himself as a police officer. When Wheeler shined the flashlight upon Garvin,

Garvin began to flee.

At this point, the parties’s versions of events sharply

diverged. According to Wheeler, he prevented Garvin’s

flight by grabbing his shirt, but as Garvin turned to face

Wheeler, Wheeler claimed that he observed Garvin reach

for a gun in his waistband. Wheeler claimed that he and

Garvin struggled for control of the gun, whereby they

both fell to the ground. Wheeler contended that when

Garvin began to gain control of the weapon, Wheeler

(who was on top of Garvin on the ground) “rocked back,

drew his [own] firearm and fired four successive shots at

[Garvin].”

The plaintiffs tell a different story. According to plaintiffs, no struggle ever took place and Garvin never drew a

gun—and thus Wheeler’s use of deadly force was not

justified. In support of their claims, plaintiffs question

the credibility of Wheeler. They pointed out that his

deposition testimony differed from that of Officers Mills

and Toliver. Both Mills and Toliver claimed to have heard

Wheeler report that he was pursuing a suspect, contrary

to Wheeler’s deposition testimony that he never radioed

that he was pursuing a fleeing suspect. Further, both Mills

and Toliver reported hearing Wheeler describe the suspect as running westbound towards the burglary site, as

opposed to the easterly direction Wheeler claimed to

have observed Garvin heading. Second, and far less trivial than the discrepancies in Wheeler’s deposition testimony, the plaintiffs pointed out that the IPD’s forensic

analysis of the weapon Wheeler claimed that Garvin aimed

at him revealed no latent fingerprints, despite the fact

that Wheeler claimed the weapon never left Garvin’s

hand during the struggle.

Not quite two years after the shooting, on August 25,

1998, the plaintiffs filed suit in the Marion County, Indi-
4 No. 01-3825

2 Under Federal Rule of Appellate Procedure 4(a)(a)(A), Officer

Wheeler was required to file a notice of appeal with the district

court clerk within 30 days after the judgment was entered.

ana, Circuit Court, alleging that Officer Lawrence Wheeler

violated Alexis Garvin’s civil rights under 42 U.S.C. § 1983,

when he used excessive force in fatally shooting Garvin

during a burglary investigation. Officer Wheeler promptly

removed the suit to the federal court for the Southern

District of Indiana under the court’s federal question

jurisdiction, 28 U.S.C. §§ 1441 & 1446.

On May 18, 2000, Officer Wheeler moved for summary

judgment, asserting the affirmative defense of qualified

immunity. According to Wheeler, his use of deadly force

was justified because he faced a potentially life-threatening situation. Before the trial court, the parties hotly

contested the series of events that led to the tragic death of

Alexis Garvin and the district court viewed them, as it

was required to do in reviewing a motion for summary

judgment, in the light most favorable to the nonmoving

party, the Garvins. The plaintiffs pointed out the inconsistences referred to above and argued that the lack of

fingerprints on the gun and the inconsistencies in Wheeler’s

story called into question his credibility. Because of

Wheeler’s lack of credibility, the plaintiffs argued that

there was a genuine issue of material fact regarding

whether any struggle actually occurred, thus precluding

summary judgment. After reviewing the record, we agree

with the trial court’s determination that Wheeler was less

than truthful in his recitation of the facts leading up to

Alexis Garvin’s death.

After being presented the conflicting versions of events,

Judge Dillin denied Officer Wheeler’s motion for summary

judgment on October 4, 2000.2

 The trial judge noted that

“[u]nder [Officer Wheeler’s] set of facts, the Supreme
No. 01-3825 5

Court’s decision in [Tennessee v. Garner, 471 U.S. 1 (1985)]

entails a finding that Officer Wheeler’s use of deadly force

was reasonable.” But the trial judge went on to note that

because Officer Wheeler is the only surviving witness to

the series of events leading to Garvin’s death, that the

officer’s credibility was “crucial to the case . . . [and] should

the finder of fact believe Officer Wheeler and find his

testimony credible, no violation of the Fourth Amendment

has occurred. However, if the finder of fact believes that

no struggle took place and that [Garvin] never drew a gun,

the reasonableness of Officer Wheeler’s use of deadly force

becomes questionable.” The trial judge found Wheeler’s

version of events to be less than credible and went on

to conclude that, based on the inconsistencies in Officer

Wheeler’s deposition testimony and the absence of any

of Garvin’s fingerprints on the gun he allegedly aimed

at Wheeler, there was a genuine issue of fact as to

Wheeler’s credibility. Thus Judge Dillin ruled that summary judgment was inappropriate.

Wheeler never did file a notice of appeal from Judge

Dillin’s October 4, 2000, denial of qualified immunity,

and discovery in the case proceeded. During that additional discovery, plaintiffs deposed David Brundage, a supervising forensic scientist for the Indianapolis-Marion County

Forensic Services Agency. In that deposition of Wheeler’s

own expert witness, Brundage testified that the entry

and exit wounds on Garvin’s body were not consistent

with Wheeler’s testimony with regard to how the shooting took place, thus further calling into question Wheeler’s

version of events.

On August 7, 2001, nearly ten months after the trial

court had previously denied qualified immunity, Wheeler

filed a four-paragraph motion for leave to file renewed

motion for summary judgment. Defendant’s motion asserted

that a case decided by the Supreme Court two months

earlier, Saucier v. Katz, 533 U.S. 194 (June 18, 2001),
6 No. 01-3825

demonstrated that Judge Dillin’s denial of summary

judgment was in error. Judge Young denied defendant

leave to renew his summary judgment motion, ruling that

Saucier did not impact Judge Dillin’s analysis. Wheeler

appeals from Judge Young’s denial of leave to file a renewed summary judgment motion.

II. Jurisdiction

Before proceeding to the merits of Officer Wheeler’s

arguments, we must first determine whether this court

has jurisdiction to hear Wheeler’s interlocutory appeal.

Ordinarily, the denial of a defendant’s motion for summary judgment is not an appealable order because it is

not a “final decision” of the trial court. 28 U.S.C. § 1291;

Coady v. Steil, 187 F.3d 727, 730 (7th Cir. 1999); Rambo v.

Daley, 68 F.3d 203, 205 (7th Cir. 1995). The Supreme

Court has articulated one narrow exception to the finality

rule: the collateral order doctrine. Cohen v. Beneficial

Industrial Loan Corp., 337 U.S. 541, 546 (1949); Coopers &

Lybrand v. Livesay, 437 U.S. 463, 467 (1978). The collateral

order doctrine applies to interlocutory orders that “conclusively determine the disputed question, resolve an

important issue completely separate from the merits of

the action, and [are] effectively unreviewable on appeal

from a final judgment.” Coopers & Lybrand, 437 U.S. at

468. The denial of a defendant’s motion for summary judgment is an immediately appealable collateral order where

the defendant was a public official asserting qualified

immunity. Mitchell v. Forsyth, 472 U.S. 511, 528-30 (1985).

But this does not carry the day for Wheeler, for he failed

to appeal Judge Dillin’s October 4, 2000, denial of his summary judgment motion asserting qualified immunity.

Instead, Wheeler waited more than ten (10) months after

Judge Dillin initially rejected his qualified immunity

defense and sought leave from Judge Young to raise the
No. 01-3825 7

defense again. We are well aware of the rule that a second appeal under the collateral order doctrine is permissible with respect to qualified immunity claims. See Behrens

v. Pelletier, 516 U.S. 299 (1996); Bakalis v. Golembeski,

125 F.3d 576 (7th Cir. 1997). Behrens, however, is inapplicable to the case at hand. The Supreme Court’s holding

in Behrens allowed defendants to renew their motions

for summary judgment when the factual predicates of

that defense developed as discovery progressed, reasoning

that the qualified immunity defense might mature as the

litigation progressed and the defendant ought to be able

to receive the full protections of the qualified immunity

doctrine as factual information was developed. This is not

such a case. Wheeler presented the trial court with no

additional facts collected during discovery. Contrary to

the scenario envisioned in Behrens where additional facts

gleaned from discovery bolstered a qualified immunity

defense, the only additional facts discovered by either

party during the time period between Wheeler’s two

motions related to the IPD’s forensics experts’ deposition testimony that the entry and exit wounds on the

deceased’s body were inconsistent with Wheeler’s version

of events. Rather than strengthen Wheeler’s claim for

qualified immunity, these new facts only seem to cast

further doubt on his credibility and recitation of the version of events of the night of August 29, 1996.

Instead, the basis of Wheeler’s request to renew his

summary judgment motion was that the controlling legal

standard had changed since he initially pressed his qualified immunity defense. Of course, a trial court may, in the

exercise of its discretion, allow a party to renew a previously denied summary judgment motion. Whitford v.

Boglino, 63 F.3d 527, 530 (7th Cir. 1995); Kirby v. P.R.

Mallory & Co., 489 F.2d 904, 913 (7th Cir. 1973). A renewed summary judgment motion is appropriate if one

of the following grounds exist: (1) an intervening change
8 No. 01-3825

in the controlling law; (2) the availability of new evidence

or an expanded factual record; and (3) need to correct a

clear error or prevent manifest injustice. Whitford, 63 F.3d

at 530.

In this instance, defendant Wheeler claims that Saucier

v. Katz, 533 U.S. 194 (June 18, 2001), worked a fundamental change in the law of qualified immunity that should

allow him to reopen his motion for summary judgment. But

defendant Wheeler overstates the import of Saucier.

Saucier was not a hallmark reformulation of the qualified

immunity analysis. Instead, Saucier stressed that a trial

court must engage in the two-part qualified immunity

analysis (asking first whether a constitutional right was

violated and second whether that right was clearly established) before it engages in other analysis. Id. at 200-01.

Judge Dillin did just that when he expressly noted that

Garner governed an officer’s use of deadly force and that

if Wheeler’s version of events were believable, then in

that instance he would be entitled to qualified immunity.

Judge Dillin, however, found that Officer Wheeler’s version

of events was less than credible and therefore that the

plaintiffs had established that a reasonable officer could

not have believed his action (fatally shooting an unarmed

suspect) to be reasonable. Thus, Judge Dillin did engage

in the two-part qualified immunity test required by Saucier.

In Justice v. Town of Blackwell, 820 F.2d 238 (7th Cir.

1987), we declined to accept jurisdiction over an interlocutory appeal from the denial of a motion to amend the

answer to include the defense of qualified immunity. In that

case, the trial judge did not address the merits of the

qualified immunity defense, but instead denied the motion

because of the lengthy delay between the filing of the

defendant’s answer and the motion to amend. We think

the case before us is analogous: Wheeler never appealed

from Judge Dillin’s denial of his claim of qualified immunity and instead waited nearly a year before seeking leave
No. 01-3825 9

to renew that claim (notwithstanding the fact that the

facts of the case had not changed). The Federal Rules of

Appellate Procedure allot 30 days time for Wheeler to

have filed a notice of appeal, and the time for Wheeler to

appeal Judge Dillin’s denial of his qualified immunity

motion has long since passed. See Fed. R. App. P. 4(a). Given Wheeler’s tardiness in renewing his motion for summary judgment (he waited nearly ten months after it

was denied and nearly two months after Saucier was issued to renew it), we think that this appeal does not fall

within the ambit of the collateral order doctrine allowing

for appeals from the denials of qualified immunity. As

Judge Young astutely commented, “this case is old and

needs to be tried.”

But there is another reason to decline to exercise jurisdiction over Wheeler’s appeal. Mitchell held that a “district court’s denial of a claim of qualified immunity, to

the extent that it turns on an issue of law, is an appealable

‘final decision’ within the meaning of 28 U.S.C. § 1291

notwithstanding the absence of a final judgment.” (emphasis added). 472 U.S. at 530. In other words the collateral

order doctrine does not permit an immediate appeal of

a trial court’s denial of qualified immunity when the

court’s summary judgment order rests on a determination

that there are genuine issues of fact requiring a trial.

Johnson v. Jones, 515 U.S. 304, 319-320 (1995); see also

Taboas v. Mlynczak, 149 F.3d 576, 579; Bakalis, 125 F.3d

at 578; Rambo, 68 F.3d at 207. “If the district court’s order

rests on the existence of disputed factual issues, rather

than on issues of law, the collateral order doctrine does

not permit an immediate appeal from that decision.”

Talboas, 149 F.3d at 579.

Wheeler suggests that his appeal turns upon an issue

of law and that there are no disputed facts. Wheeler’s

characterization that his dispute is legal, rather than

factual, is less than accurate. In the underlying denial
10 No. 01-3825

of summary judgment, Judge Dillin clearly held that “if

the finder of fact believes that no struggle took place and

that [Garvin] never drew a gun, the reasonableness of

Officer Wheeler’s use of deadly force becomes questionable.” Judge Dillin went on to rule that issues regarding

Wheeler’s credibility made it possible that a fact finder

could believe the plaintiffs’ version of events, in which

Wheeler resorted to the use of deadly force on a suspect

who had not committed or threatened any act of violence.

Wheeler does not contend, nor could he, that under the

plaintiffs’ version of the facts his actions could be considered objectively reasonable. Tennessee v. Garner clearly

does not allow police officers to use deadly force on unarmed burglary suspects who have neither threatened the

officer with a weapon nor committed a crime involving

the infliction of serious physical harm. 471 U.S. 1, 11

(1985). The essential dispute, therefore, concerns whether

Officer Wheeler’s or the plaintiffs’ version of the facts is

true.

In short, if the factfinder were to accept Officer Wheeler’s

version of the events, he would be entitled to qualified

immunity, for it is objectively reasonable for a police officer to defend himself when a suspect aims a weapon at

him. But under the plaintiffs’ version of the facts, where

no struggle occurred, Officer Wheeler shot a suspect

who was neither armed nor resisting. As Judge Dillin

found, there were a number of inconsistencies in Wheeler’s

recitation of events, which in turn called into question

his credibility. For example, police, after a thorough

inspection, failed to find even a single partial print on the

gun Garvin allegedly aimed at him. Wheeler’s deposition testimony, which conflicted with that of other officers reporting to the scene of the crime (particularly

with respect to the direction Wheeler claimed Garvin had

been heading), dealt another blow to his credibility. Finally and perhaps most damaging to Wheeler’s credibility,
No. 01-3825 11

the entry and exit wounds on Garvin’s body were inconsistent with Wheeler’s description of the shooting according to the IPD’s forensic scientists. Judge Dillin correctly observed that this is a factual, not a legal, dispute.

We have consistently held that a cry of “I didn’t do it” does

not present any distinctly legal issue or seek protection

from legal uncertainty, and therefore cannot be raised in

an interlocutory appeal from the denial of qualified immunity. Taboas, 149 F.3d at 579; Gorman v. Robinson, 977

F.2d 350, 354-55 (7th Cir. 1992); Elliott v. Thomas, 937

F.2d 338, 342-43 (7th Cir. 1991). Mitchell does not allow

us to hear disputes on interlocutory appeal regarding

which facts the parties might be able to prove at trial. 472

U.S. at 530; see also Johnson, 515 U.S. at 319-20

Wheeler had a thirty-day window in which to file a notice

of appeal challenging Judge Dillin’s legal conclusions

regarding his motion for summary judgment and he

failed to do so. We are without jurisdiction to hear his

belated appeal. For the foregoing reasons, we DISMISS the

appeal for lack of jurisdiction.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-97-C-006—8-28-02