United States District Court, E.D. Wisconsin
J.M. and ESTATE OF DONTRE HAMILTON, Plaintiffs,
CITY OF MILWAUKEE and CHRISTOPHER E. MANNEY, Defendants.
Stadtmueller U.S. District Judge
April 12, 2017, the Court denied Defendants' motion for
summary judgment on, inter alia, their qualified
immunity defense. (Docket #94 at 45-48). Defendants are
entitled to take an immediate appeal of the Court's
ruling on that issue, without seeking leave, because
“it is a final decision on the defendant's right
not to stand trial and, as such, a collateral order.”
Gutierrez v. Kermon, 722 F.3d 1003, 1009 (7th Cir.
2013); see Mitchell v. Forsyth, 472 U.S. 511,
524-530 (1985) (describing collateral orders). Defendants
gave notice of such an appeal on April 24, 2017. (Docket
that day, Plaintiffs filed a motion “to certify
Defendants' appeal as frivolous and/or forfeited.”
(Docket #100 at 1) (capitalization altered). They cite the
Seventh Circuit's Apostol opinion, which permits
a district court to certify an appeal as frivolous if it
finds a claim of qualified immunity “is a sham.”
Apostol v. Gallion, 870 F.2d 1335, 1339 (7th Cir.
1989). Plaintiffs argue that the Court found disputed issues
of fact on the qualified immunity issue, which normally
precludes appellate review. Guiterrez, 722 F.3d at
push this principle too far, as Guiterrez explains:
A district court's finding that there are genuine issues
of material fact does not always preclude appellate review.
[The Supreme Court's opinion in Johnson v.
Jones, 515 U.S. 304 (1995)] prohibits us from reviewing
the record to determine whether the district court erred in
finding that a genuine issue of material fact exists, . . .
and so we may not make conclusions about which facts the
parties ultimately might be able to establish at trial[.] But
Johnson does not prohibit us from considering 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, . . . or in a light most favorable to the
plaintiff, the nonmovant[.]
Id. Defendants may not contest the Court's
determinations regarding disputes of fact. They are free,
however, to assert that even when the facts are viewing
favorably to Plaintiffs, they warrant qualified immunity.
Whatever the likelihood of success in this endeavor, it is no
further contend that Defendants have forfeited an appeal of
qualified immunity. They rely on Behrens v.
Pelletier, 516 U.S. 299 (1996), stating that
“[w]hen a defendant seeks to immediately appeal a
qualified immunity summary judgment decision on a question of
law as authorized by Behrens, the defendant must
have based their argument to the district court upon the
version of the facts that the district court found
sufficiently supported for purposes of summary judgment. 516
U.S. at 313.” (Docket #100 at 4). The Court finds no
such distinct holding in Behrens. Rather, it simply
echoes the Guiterrez discussion quoted above.
Id. at 312-13. Plaintiffs are free to present their
forfeiture argument to the Court of Appeals, but the Court
will not rely on it here to deny an otherwise valid appeal.
instant motion must be denied; Defendants' appeal will
continue. Additionally, the Court will grant a stay of this
matter in this Court, as Defendants have requested. (Docket
#103). There is no logic in proceeding to trial, currently
scheduled in less than three weeks, if the Court of Appeals
ultimately finds any merit in Defendants' appeal. See
Allman v. Smith, 764 F.3d 682, 685-86 (7th Cir. 2014).
This stay will be lifted when the mandate is issued by the
Court of Appeals. If a trial is still required, it will be
completed within 90 days following remand. The parties and
their counsel should be guided accordingly.
IT IS ORDERED that Plaintiffs' motion to certify
Defendants' appeal as frivolous or forfeited (Docket
#100) be and the same is hereby DENIED;
FURTHER ORDERED that this matter's May 9, 2017 final
pretrial conference, May 15, 2017 jury trial, and all other
related deadlines (Docket #17) be and the same are hereby
FURTHER ORDERED that Defendants' motion to stay
proceedings in the district court (Docket #103) be and the
same is hereby GRANTED;
FURTHER ORDERED that the joint motion to amend the deadline
for submitting hard copies of exhibits for trial (Docket
#104) be and the same is hereby DENIED as moot; and
FURTHER ORDERED that these proceedings be and the same are
hereby STAYED until the mandate of the Court of Appeals is