United States District Court, E.D. Wisconsin
ESTATE OF DEREK WILLIAMS, JR., TANIJAH WILLIAMS, DEREK WILLIAMS III, and TALIYAH S. WILLIAMS, Plaintiffs,
CITY OF MILWAUKEE, JEFFREY CLINE, RICHARD TICCIONI, PATRICK COE, JASON BLEICHWEHL, ROBERT THIEL, TODD KAUL, ZACHARY THOMS, GREGORY KUSPA, CRAIG THIMM, and DAVID LETTEER, Defendants.
STADTMUELLER, U.S. DISTRICT JUDGE.
August 4, 2017, the Court denied Defendants' motion for
summary judgment on, inter alia, the Officer
Defendants' qualified immunity defense. (Docket #74 at
48-51). The Officer 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 August 7, 2017. (Docket #75).
next day, Plaintiffs filed a motion asking that the Court
certify Defendants' appeal as frivolous. (Docket #78).
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 1009. They also contend that
Defendants have waived the basis of a qualified immunity
appeal because their summary judgment argument did not rest
on the facts as viewed in Plaintiffs' favor.
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 viewed
favorably to Plaintiffs, they warrant qualified immunity.
Whatever the likelihood of success in this endeavor, it is no
Court recently addressed this same issue in the case
concerning the death of Dontre Hamilton. See J.M., et al.
v. City of Milwaukee, et al., No. 16-CV-507-JPS (E.D.
Wis. May 1, 2017) (Docket #106). The Court agrees with
Plaintiffs that Defendants' qualified immunity appeal
appears to be even less meritorious than that from the
Hamilton case. Nevertheless, the Court believes it is most
prudent to allow Defendants' appeal to proceed. As
Apostol instructs, the power to declare an appeal
frivolous “must be used with restraint[.]” 870
F.3d at 1339. Plaintiffs are free to seek appropriate relief
in the Court of Appeals regarding any perceived frivolousness
or waiver. The Court of Appeals has, of course, its own power
to apply sanctions to Defendants if it believes them
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
#77). 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 60 days following remand. The parties and
their counsel should be guided accordingly.
IT IS ORDERED that Plaintiffs' motion to
certify Defendants' appeal as frivolous (Docket #78) be
and the same is hereby DENIED;
IS FURTHER ORDERED that this matter's August 22,
2017 final pretrial conference, August 28, 2017 jury trial,
and all other related deadlines (Docket #17) be and the same
are hereby VACATED;
IS FURTHER ORDERED that Defendants' motion to
stay proceedings in the district court (Docket #77) be and
the same is hereby GRANTED; and
IS FURTHER ORDERED that these proceedings be and the
same are hereby STAYED until the mandate of
the Court of Appeals is ...