### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 18-1287
A NTHONY G ANT, Plaintiff-Appellee ,

v.

D ANIEL H ARTMAN , Defendant-Appellant

.

____________________ Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 1:16-CV-380 — Theresa L. Springmann , Chief Judge

.

____________________
A RGUED F EBRUARY 7, 2019

— D ECIDED M AY 14, 2019

____________________

Before B AUER , H AMILTON , and B RENNAN , Circuit Judges

. H AMILTON , Circuit Judge . Anthony Gant brought this action against three police o ffi cers and the City of Fort Wayne for injuries he sustained as he fl ed from an armed robbery. Gant’s operative First Amended Complaint alleges several constitutional violations and seeks damages under 42 U.S.C. § 1983. The defendants moved fo r summary judgment, asserting claims of quali fi ed immunity for O ffi cers Daniel Hartman, Bradley Gri ffi n, and Jason Palm.2 No. 18-1287

The district court granted su mmary judgment for all defendants except O ffi cer Hartman, who Gant alleges violatedhis Fourth Amendment rights by using unconstitutional excessive force in shooting him. O ffi cer Hartman now appeals the district court’s denial ofsummary judgment. Because Offi cer Hartman’s argument depends upon and is inseparable from the disputed facts identi fi ed by the district court, we must dismiss this appeal for lack of appellate jurisdiction.

I. The Robbery and Shooting On August 23, 2015, just before sunset, O ffi cers Hartman, Gri ffi n, Palm, and others responded to a report of an ongoingarmed robbery at a Dollar General store in Fort Wayne, Indiana. Police dispatch told O ffi cer Hartman that a female caller was on the phone with her frie nd, an employee of Dollar General, when the employee screamed and exclaimed several times that she could not open the register because it was on a timer. Hartman and the other responding o ffi cers knew that there had been a series of armed robberies at various DollarGeneral stores in the Fort Wayne area. The police had not arrested any suspects in associat ion with these ro bberies. In the previous robberies, two men wo uld enter the store, display handguns, con fi ne or zip-tie employees, wait for the registers to open, and depart after collecting cash, cigare tt es, and employees’ cell phones. Arriving at the scene of the robbery, O ffi cer Hartman crouched ten to fi fteen feet from the front entrance of the store. He could not see clearly into the store because shelving units blocked his view. O ffi cers Gri ffi n and Palm arrived and positioned themselves respective ly on the west and east sides of the store’s front entrance. Two more o ffi cers (Edward Black and Mark Bieker) went to the backof the store. By this time,No. 18-1287 3

the dispatcher had told the o ffi cers that the 911 caller had lost phone contact with the employ ee, who had continued to yell that she could not open the register. While O ffi cers Hartman, Gri ffi n, and Palm were discussing how to proceed, the two

o ffi cers at the back of the store radioed that they had observed suspects start to try to escape out the back but then retreat into the store. O ffi cer Palm then reported that he saw two people inside approaching the front entrance of the store. What happened next was reco rded by the cameras of two patrol cars facing the store entrance. The video recordings were subject to frame-by-frame analysis by O ffi cer Hartman’sexpert witness. The following events happened in rapid succession, all occurring with in a single second. O ffi cer Hartman started to approach the front entrance. As he started toward the doors, two men appeared in the front entrance. The fi rst suspect, later identi fi ed as Christopher Johnson, ran out of the front entrance. All three o ffi cers shouted to the suspects to get down on the ground. O ffi cer Hartman started to run toward Johnson, but then turned to see plainti ffAnthony Gant standing in the doorway. Gant had his left arm extended, holding the door open. Hartman then fi red two shots. One struck Gant in the abdomen.

O ffi cer Hartman explained afterward that he feared for his life because he believed Gant was holding a handgun, and Hartman had no cover from a potential shot. At the moment he fi red his weapon, O ffi cer Hartman estimates, he was less than twenty feet away from Gant. O ffi cer Hartman reported later that Gant showed no signs of surrendering or obeying commands to get down on the ground. O ffi cer Hartman believed Gant was holding a gun in his left hand and was preparing to shoot.4 No. 18-1287

It was later determined that Gant had not been holding a handgun, nor any object, in his hand when O ffi cer Hartman fi red. Gant argues that he was either a tt empting to surrender or that he was given no opportunity to respond to the orders because he was shot immediately as he was exiting the store. On July 25, 2016, Gant pleaded guilty to the charge of armed robbery under Indiana Code § 35-42-5-1(1).

II. District Court Proceedings After pleading guilty, Gant fi led this § 1983 action against Hartman and others for violating his Fourth Amendment rights by using excessive forc e. The defendants moved for summary judgment, asserting the defense of quali fi ed immunity for O ffi cers Hartman, Gri ffi n, and Palm. The district court granted summary judgment for all defendants except O ffi cer Hartman. The court found that, when viewing the evidence in the light reasonably most favorable to the plainti ff
, that claim presented genuine issues of material fact for a jury to decide. The court found that a jury would need to decide whether it was reasonable for an o ffi cer in Hartman’s position to believe that plainti ff Gant had a gun. The court also found that “a reasonable juror could conclude either that Plainti ffwas in the process of obeying Defendant Hartman’s commands or that he did not have the opportunity to obey Defendant Hartman’s commands.” Because of these factual disputes, the district court deni ed Hartman’s motion for summary judgment based on quali fi ed immunity. Hartman has appealed.

III. Appellate Jurisdiction A denial of summary judgmentis generally an unappealable interlocutory order because it is not a “ fi nal decision” forNo. 18-1287 5

purposes of 28 U.S.C. § 1291. Ortiz v. Jordan , 562 U.S. 180, 188 (2011). There is an exception fo r appeals based on the denial of quali fi ed immunity. Mitchell v. Forsyth , 472 U.S. 511, 530 (1985). An order denying quali fi ed immunity on summary judgment can be appealed immediately as a collateral order that amounts to a fi nal decision on the defendant’s right not to stand trial. See Plumho ff

v. Rickard, 572 U.S. 765, 771–72 (2014); Gutierrez v. Kermon , 722 F.3d 1003, 1009 (7th Cir. 2013) (dismissing interlocutory appeal of denial of quali fi ed immunity because appellant’s argument depended on disputed fact), citing Mitchell , 472 U.S. at 524–30. A denial of quali fi ed immunity can be appealed, however, only “to the extent that it turns on an issue of law.” Mitchell , 472 U.S. at 530. The Supreme Court held in Johnson v. Jones that a defendant cannot appeal an order denying immunity “insofar as that order determines whether or not the pretrial record sets forth a ‘genuine’ i ssue of fact for trial.” 515 U.S.304, 319–20 (1995). When the district court concludes that factual disputes prevent the resolution of a quali fi ed immunity defense, “these conclusions re present factual determinations that cannot be disturbed in a collateral-order appeal.” Jones v. Clark , 630 F.3d 677, 681 (7thCir. 2011); see also Gutierrez , 722 F.3d at 1010 (“[A]n appellant ch allenging a district court’s denial of quali fi ed immunity e ff ectively pleads himself out ofcourt by interposing disputed factual issues in his argument.”). An appellate court may not “make conclusions about which facts the parties ultimately might be able to establish attrial,” nor may it “reconsider the district court’s determination that certain genuine issues of fact exist.” McKinney v. Duplain , 463 F.3d 679, 688 (7th Cir. 2006), quoting Leaf v. Shelnu tt, 400 F.3d 1070, 1078 (7th Cir. 2005).6 No. 18-1287

To establish appellate jurisdiction, therefore, the party seeking review must invoke “a purely legal argument that does not depend on disputed facts.” White v. Gerardot, 509 F.3d 829, 833 (7th Cir. 2007) (dismissing interlocutory appeal from denial of quali fi ed immunity because defendant failed to base legal arguments either on facts assumed by district court or alleged by plainti ff ). Appellate jurisdiction is also improper when the appellant’s supposedly legal arguments “are dependent upon, and inseparable from, disputed facts.” Id. at 835.
White illustrates this rule in a very similar case (except that the suspect in that case died from the o ffi cer’s shot). In White the defendant o ffi cer claimed that he feared for his life because he believed the suspect had a gun and, despite the offi cer’s commands to raise his ha nds, moved his hands in front of him “as if he were reloading his gun.” Id. at 834. The plainti ff , however, o ff ered testimony that the suspect was neither armed nor disobeying orders when the o ffi cer shot him. The district court denied summary judgment based on quali fi ed immunity because of the disputed factual issues

. We dismissed the defendant’s interlocutor y appeal of that denial because the defendant’s argument necessarily depended on and was inseparable from his version of the facts. Id. at 836–37. The defendant’s reliance on disputed facts in White barred appellate jurisdiction. To appeal a denial of quali fi ed immunity, an appellant must “refrain[] from contesting any fact that a reasonable jury coul d resolve against him.” Rainsberger v. Benner, 913 F.3d 640, 643 (7th Cir. 2019) (a ffi rming denial of quali fi ed immunity). The appellant’s argument therefore must accept the facts and reason able inferences favorable to the plainti ff or the facts assumed by the district court’sNo. 18-1287 7

decision. Johnson , 515 U.S. at 319; Gutierrez , 722 F.3d at 1009; see also Jackson v. Curry, 888 F.3d 259, 263 (7th Cir. 2018) (dismissing interlocutory appeal because appellant did not raisea pure legal issue). The line between appealable and non-appealable orders established by Johnson can often be di ffi cult to apply. See Gutierrez , 722 F.3d at 1011. The key is that the legalargument cannot depend entirely on disputed facts. An appeal making an otherwise purely legal argument may, however, survive “the mere mention” of disputed facts. Id.There is also a narrow, pragmatic exception allowing appellants to contest the district court’s determination that material facts are genuinely disputed. In Sco tt v. Harris , the Supreme Court found the defendant police o ffi cer could dispute the district court’s fi nding that a genuine factual dispute existed because a video reco rding of the incident “u tt erly discredited” the plainti ff ’s testimony that he was driving carefully. 550 U.S. 372, 380–81 (2007). The video recording of the plainti ffdriving erratically during a high-speed chase was irrefutable evidence that he “posed an actual and imminent threat to the lives” of others and that, as a ma tt er of pure law in light of that incontestable fact, the defendant used reasonable force to stop him. Id. at 383–84. We recently applied this reasoning in Dockery v. Blackburn , fi nding that the plainti ff ’s version of the facts was discredited by video evidence. 911 F.3d 458, 466 (7th Cir. 2018) (reversing denial of quali fi ed immunity because, despite con fl icting versions of the facts, video evidence showed there was no genuine issue of material fact). The plainti ff in Dockeryargued that the video of his arrest was subjec t to multiple interpretations and that he did not intend to resist the o ffi cers. We found, however, that the video plainly showed that Dockery was8 No. 18-1287

“uncooperative and physically aggressive” toward the o ffi cers and “wildly kicked” in their direction as they a tt empted to handcu ffhim. Id. at 467. Other courts applying this narrow Sco tt exception have stressed that it applies only in th e rare case at the “outer limit” of the principle established by Johnson . E.g., Bishop v. Hackel , 636 F.3d 757, 769 (6th Cir. 2011); Blaylock v. City of Philadelphia , 504 F.3d 405, 414 (3d Cir. 2007). “ Sco tt does not hold that courts should reject a plainti ff ’s account on summary judgment whenever documentary evidence, such as a video, o ff ers
some support for a governmental o ffi cer’s version of events.” Wi tt v. West Virginia State Police, Troop 2 , 633 F.3d 272, 276 (4th Cir. 2011). Instead, Sco tt holds that “where the trial court’s determination that a fact is subjec t to reasonable dispute is blatantly and demonstrably false, a court of appeals may say so, even on interlocutory review.” Blaylock, 504 F.3d at 414 (dismissing appeal in relevant part where video did not blatantly and demonstrably contradict plainti ff ’s version); accord, Wi tt, 633 F.3d at 276–77 (same). While the video in Dockerydemonstrated facts reaching this outer limit, it should be considered a rare case. It does not apply wh ere the video record is subject to reasonable dispute. In this case, O ffi cer Hartman has not satis fi ed any of the routes to interlocutory appellate jurisdiction under § 1291. He accepts neither the facts most favorable to the plainti ff nor the facts assumed by the district cour t; in fact, he has openly contested the facts throughout his briefs and oral argument. 1

1 See, e.g., Appellant’s Reply Br. at 3 (“Contrary to the district court’sopinion, a reasonable juror could not conclude that Gant was in the process of obeying Hartman’s commands.”); id . (“[T]he district court did not set forth a single disputed material issue of fact.”); Oral Arg. 4:05 (“TheNo. 18-1287 9

O ffi cer Hartman has consistently relabeled certain facts as “undisputed,” and he asks this court to challenge the districtcourt’s determination that material facts are genuinely disputed. O ffi cer Hartman has asserted repeatedly that it is undisputed that Gant was not a tt empting to surrender. That is correct, but Gant contends that he was not resisting arrest when he was shot and that he was either a tt empting to comply with orders or did not have time to respond to those orders when O ffi cer Hartman shot him in that critical second, as we described above. O ffi cer Hartman cannot pursue an interlocutory appeal by arguing that the evidence is insu ffi cient to support the district court’s conc lusion or by relabeling the disputed facts as “undisputed.” These add up to “a back-door

e ff ort to contest the facts.” Jones v. Clark , 630 F.3d 677, 680 (7th Cir. 2011); see also Thompson v. Cope , 900 F.3d 414, 420 (7th Cir. 2018).Absent irrefutable evidence, we may not use an interlocutory appeal to second-guess th e district court’s conclusion that material facts are disputed. We have watched the videos of Gant’s shooting and arrest, and we have reviewed the frame-by-frame analysis by Hart man’s expert witness. Unlike the footage in Sco tt and Dockery, the videos in this case do not “u tt erly discredit” Gant’s contentions that he was trying to comply with orders or did not have time to respond to O ffi cer Hartman’s commands. The recordings show Gant standing in the doorway, his arm extended holding the door, and then his arm lowering slightly before O ffi cer Hartman fi red. All of this

undisputed facts show that [Gant] was not surrendering when he was shotand that he posed a threat of serious bodily harm or death to Officer Hartman at the time he discharged his firearm.”); id . at 6:40 (“The district court was wrong and there are no disputed facts.”).10 No. 18-1287

occurs within a single second. This is not comparable to Dockery where the plainti ffactively pushed and kicked at o ffi cers, thus “u tt erly discrediting” his claim that he had not resisted arrest. Nor do the videos here provide irrefutable proof that it was reasonable for O ffi cer Hartman to believe Gant washolding a gun when he was shot. Outside of irrefutable evidence like that in Sco tt and Dockery, an appellate court is not in the position to decide on interlocutory appeal what factsmay eventually be established at trial by a reasonable factfi nder. See McKinney v. Duplain , 463 F.3d 679, 688 (7th Cir. 2006).
O ffi cer Hartman claims that he is entitled to quali fi ed immunity because his actions did not violate Gant’s constitutional rights and, even if th ey did, those rights were not clearly established on or before August 23, 2015. To make this argument, however, O ffi cer Hartman asks in e ff ect that we resolve facts that the district court treated as disputed. O ffi cer Hartman relies on several cases, such as Ford v. Childers , 855 F.2d 1271 (7th Cir. 1988), and Tom v. Voida , 963 F.2d 952 (7th Cir. 1992), to support his claim thathis use of deadly force was reasonable. However, the facts of those police-action shootings were not comparable to the district court’s version of the evidence here most favorable to plainti ff Gant. The armed suspect in Ford was a tt empting to fl ee when he was shot. 855 F.2d at 1275. The suspect in Tom was actively engaged in a violent struggle with the o ffi cer when she used deadly force. 963 F.2d at 955. Our decisions show that it is unreasonable to use deadly force against a suspect who is not resisting arrest and who is genuinely a tt empting to surrender. See, e.g., Miller v. Gonzalez , 761 F.3d 822, 829 (7th Cir. 2014) (“This prohibition against signi fi cant force against a subdued suspect applies notwithstanding a suspect’s previous behavior—includingNo. 18-1287 11

resisting arrest, threatening o ffi cer safety, or potentially carrying a weapon.”); see also Alicea v. Thomas , 815 F.3d 283, 292 (7th Cir. 2016) (It is “clearly established that using a signi fi

cant level of force on a non-re sisting or a passively resisting individual constitutes excessive force.”). To answer the question of reasonableness as a ma tt er of law, we would need to resolve disputed issues of material fact about that critical one second.

Because O ffi cer Hartman’s appellate argument relies on disputed facts and he has not presented su ffi cient evidence to “u tt erly discredit” the district court’s fi ndings, this court lacks jurisdiction over this interlocutory appeal. The appeal is

DISMISSED.