The doctrine of qualified immunity is one of the most significant and powerful defenses that a police officer has to a federal civil rights claim. Qualified immunity applies when the officer’s use of force does not violate any clearly established rights. This defense should be asserted prior to trial, usually on a motion for summary judgment. If the officer loses the motion, he has the right to an immediate appeal. The U.S. Supreme Court and the Seventh Circuit Court of Appeals have been very deferential to this defense and more often than not will side with the officer. Occasionally, though, the courts, in particular the Seventh Circuit, will find that it cannot decide the appeal (and therefore lacks jurisdiction) because the case turns entirely on disputed facts.
A recent decision from Indiana illustrates this circumstance. In Martin v. Wentz, 2020 WL 883374 (7th Cir. 2020), the police pursued a suspect by vehicle and then on foot based on a suspicion of armed robbery. The suspect late filed a federal civil rights lawsuit pursuant to 42 U.S.C. § 1983, alleging that excessive force was used in the arrest. He claimed that, even though he remained passive and did not resist arrest, the officers tackled him, kicked and punched him, pressed his “pressure points” behind the ears, and tased him several times. Later, during an interrogation, he claimed the officers hit him in the head and choked him. The officers had a different version, denying the plaintiff’s accusations. The district court denied the officers’ motion for summary judgment on qualified immunity grounds, and the officers appealed. The officers argued on appeal that, even accepting the suspect’s version, the law was no clearly established that they violated the suspect’s rights, because it was undisputed that the suspect fled in his vehicle and then on foot. The Seventh Circuit disagreed because the officers’ version depended entirely on disputed facts, and the material facts concerned what happened after the suspect was apprehended. In other words, the parties disagreed whether the suspect was beaten and tased while on the ground and again in the interrogation room. Thus, the court could not decide the immunity doctrine issue given these disputed facts.
In our view, the court’s decision was correct. Whether an officer can win a case on qualified immunity depends on whether the officer used force while the suspect was undisputedly still resisting, not yet under control, or where the officer is trying to regain control. Compare the Martin case with several cases where the officers prevailed on the immunity defense: City of Escondido v. Emmons, 139 U.S. 500 (2019) (takedown of suspect was suspect who brushed past officer in apparent attempt to flee house where suspected domestic battery took place); Dockery v. Blackburn, 911 F.3d 458 (7th Cir. 2018) (use of a Taser on an actively resisting suspect in booking room), and Johnson v. Rogers, 944 F.3d 966 (7th Cir. 2019) (leg sweep technique used on handcuffed suspect who tried to flee).