Estate of Christopher J. Davis v. Juan Ortiz

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-3355
ESTATE OF C HRISTOPHER J. D AVIS , et al.,
Plaintiffs-Appellees,
v.
J UAN ORTIZ ,
Defendant-Appellant.
____________________
Appeal from United States District Court for the
Eastern District of Wisconsin.
Case No. 18-CV-1846-JPS — J.P. Stadtmueller, Judge.
____________________
A RGUED SEPTEMBER 21, 2020 — D ECIDED FEBRUARY 5, 2021
____________________
Before WOOD, BRENNAN, and SCUDDER , Circuit Judges.
W OOD, Circuit Judge. Deputy Juan Ortiz shot Christopher
Davis in the head on February 24, 2016, during a drug bust
that went awry. Arguing that Ortiz unreasonably seized Da-
vis in violation of the Fourth Amendment, Davis’s Estate sued
Ortiz for money damages under 42 U.S.C. § 1983. Ortiz re-
sponded with an assertion of qualified immunity, but the

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2 No. 19-3355
district court rejected it, holding that disputes of material fact
on which immunity depended had to be resolved by the trier
of fact.
Ortiz has appealed from the denial of qualified immunity.
But our appellate jurisdiction is secure only if the relevant ma-
terial facts are undisputed or (what amounts to the same
thing) when the defendant accepts the plaintiff’s version of
the facts as true for now. See Johnson v. Jones, 515 U.S. 304
(1995). Neither condition is present here, and so we must dis-
miss Ortiz’s appeal for want of jurisdiction.
I
The underlying facts of the case are depressingly familiar.
Police from the Village of East Troy, Wisconsin, were conduct-
ing an operation designed to nab drug dealers. Officer Jeffrey
Price hoped to conduct a “sting” operation, using a confiden-
tial informant (CI) to lure Roberto Juarez-Nieves into deliver-
ing cocaine. The CI arranged to meet Nieves at Roma’s, a local
restaurant. Nieves showed up in a Pontiac Bonneville, along
with Davis and Jose Lara, who was driving. Lara parked the
Bonneville in the crowded restaurant lot, next to an empty
Grand Marquis. Just as the police arrived in their marked
squad car and started to park behind the Grand Marquis, Lara
began slowly to pull out of his parking spot. Officer Craig
Knox had to step aside to avoid the car. As Lara headed for
the exit, Deputy Juan Ortiz, who was standing 50 feet away to
participate in the drug bust, fired four shots into the car. One
of those shots hit Davis. Lara kept driving for a brief time, but
he crashed the car. The police apprehended both Lara and
Nieves as they fled on foot, and medical personnel pro-
nounced Davis dead.

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No. 19-3355 3
This lawsuit followed on behalf of Davis’s Estate. The Es-
tate argued that Ortiz’s use of deadly force was unreasonable
for purposes of the Fourth Amendment and sought damages.
See California v. Hodari D., 499 U.S. 621, 625–26 (1991) (a per-
son is seized if police use physical force to bring him under
control). It accepted Ortiz’s statement that he did not intend
specifically to shoot Davis, but it disputed Ortiz’s assertion
that he meant to shoot only the driver, Lara. The district court
found that Ortiz’s testimony was not enough to establish as a
matter of law that Ortiz was aiming exclusively for the driver.
Christopher v. Ortiz, No. 18 CV 01846, 2019 WL 6310559 (E.D.
Wis. Nov. 25, 2019) (“Dist. Ct.”). Instead, Ortiz said that his
“intent was to stop the threat that was coming at [him],” and
he agreed that “firing into the vehicle was the way to stop that
threat[.]” Based on that account, the district court found, “a
jury could conclude that Ortiz was shooting at the car gener-
ally to make it stop, rather than at the driver or any other par-
ticular area of the vehicle.” The court also found that a rea-
sonable jury could conclude that deadly force was excessive
in the circumstances presented, if one were to accept the Es-
tate’s evidence over that of the police. It thus denied Ortiz’s
motion for qualified immunity. Relying on cases such as Har-
low v. Fitzgerald, 457 U.S. 800 (1982), and Behrens v. Pelletier,
516 U.S. 299 (1996), Ortiz filed an interlocutory appeal from
the district court’s order.
II
A
The Supreme Court has long recognized the private and
social costs of dragging government officials into civil litiga-
tion. See Harlow, 457 U.S. at 816 (discussing liability and liti-
gation costs, but also the “distraction of officials from their

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4 No. 19-3355
governmental duties, inhibition of discretionary action, and
deterrence of able people from public service”). To strike a
balance between addressing constitutional injuries commit-
ted by state actors and limiting the costs of section 1983 suits,
it has held that the common-law doctrine of “qualified im-
munity” applies in most cases against executive officials, in-
cluding the police. Id. at 807.
As the Court recently put it, “officers are entitled to quali-
fied immunity under § 1983 unless (1) they violated a federal
statutory or constitutional right, and (2) the unlawfulness of
their conduct was clearly established at the time.” District of
Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quotation marks
omitted); see also Pearson v. Callahan, 555 U.S. 223 (2009).
Qualified immunity is meant to protect “all but the plainly in-
competent or those who knowingly violate the law.” Mullenix
v. Luna, 577 U.S. 7, 8 (2015). It is essential to evaluate the public
official’s conduct at the correct level of granularity. See id.; An-
derson v. Creighton, 483 U.S. 635, 640 (1987). The unlawfulness
of challenged conduct is “clearly established” for this purpose
only if it is “dictated by controlling authority or a robust con-
sensus of cases of persuasive authority,” such that it would be
“clear to a reasonable officer that his conduct was unlawful in
the situation he confronted.” Wesby, 138 S. Ct. at 589–90 (quo-
tation marks omitted).
Once a government official invokes qualified immunity in
a section 1983 suit, the burden shifts to the plaintiff to defeat
the defense by showing (1) that a trier of fact could conclude
that the officer violated a federal right, and (2) that the unlaw-
fulness of the conduct was clearly established at the time the
officer acted. Id. at 589. If the plaintiff cannot do so, the motion
for summary judgment must be granted. See Thompson v.

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No. 19-3355 5
Cope, 900 F.3d 414, 420 (7th Cir. 2018). This reflects the fact that
the entitlement that qualified immunity protects is, in the first
instance, “an immunity from suit rather than a mere defense to
liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Defend-
ants are authorized to, and often do, invoke qualified immun-
ity in a summary-judgment motion.
B
Collateral orders, such as an order denying a motion for
qualified immunity, are immediately appealable “final deci-
sions” under 28 U.S.C. § 1291 if they conclusively determine
the disputed question, resolve an issue completely separate
from the merits, and are effectively unreviewable on appeal
from a final judgment. Forsyth, 472 U.S. at 530; see Cohen v.
Beneficial Industrial Loan Corp., 337 U.S. 541 (1949).
In Forsyth, the Supreme Court held that a denial of a public
official’s summary-judgment motion asserting qualified im-
munity was immediately appealable under Cohen “to the ex-
tent” that the denial turned “on an issue of law.” 472 U.S. at
530. For example, a court of appeals might review “whether
the legal norms allegedly violated by the defendant were
clearly established at the time of the challenged action,” or
“whether the law clearly proscribed the actions the defendant
claims he took.” Id. at 528. Such issues, the Court reasoned,
satisfy Cohen’s requirements for a conclusive and unreviewa-
ble determination, because an order denying qualified im-
munity settles the question and forces the public official to
stand trial. Once the trial has taken place, the official has in-
curred the very costs the doctrine is designed to avoid, and
thus any review that can occur at the end of the case is limited
at best. Id. at 525–27. The Court concluded that if “qualified
immunity is in part an entitlement not to be forced to litigate

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6 No. 19-3355
the consequences of official conduct,” then a “a claim of im-
munity is conceptually distinct,” and therefore separate,
“from the merits of the plaintiff’s claim that his rights have
been violated.” Id. at 527–28.
But when the district court’s denial stems from a finding
that genuine issues of material fact remain to be resolved, and
thus summary judgment is unavailable, the order denying the
motion is not immediately appealable. Johnson, 515 U.S. at
313. In these cases, unlike in cases involving “abstract issues
of law,” the “fact-related legal issues” pertaining to the im-
munity defense may collapse into the merits of the plaintiff’s
claim, violating Cohen’s separability requirement. Id. at 314,
317.
The only qualification occurs when the officer seeking im-
munity is willing to take the factual issues off the table and
accept (for purposes of the qualified immunity motion) the
factual account plaintiff has presented. Johnson does not pre-
clude appellate review in that situation. Jones v. Clark, 630 F.3d
677, 680 (7th Cir. 2011); Thompson, 900 F.3d at 419. We are thus
entitled to “consider[] the abstract legal question of whether
a given set of undisputed facts demonstrates a violation of
clearly established law. … In reviewing this purely legal ques-
tion, we take the facts as the district court assumed them
when denying summary judgment, Johnson, 515 U.S. at
319, or in [the] light most favorable to the plaintiff, the non-
movant … .” Gutierrez v. Kermon, 722 F.3d 1003, 1009 (7th Cir.
2013). Nonetheless, if we “detect a back-door effort to contest
the facts,” we will dismiss the appeal for want of jurisdiction.
Clark, 630 F.3d at 680; see, e.g., Stinson v. Gauger, 868 F.3d 516,
525–26 (7th Cir. 2015) (dismissing on jurisdictional grounds
where defendant’s briefs contradicted the district court’s

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No. 19-3355 7
factual findings and failed to construe the evidence in the
light most favorable to the plaintiff).
III
The district court identified a number of genuine issues of
fact in the summary-judgment record before it. Among other
things, the court found it unclear from the record “what Ortiz
was actually shooting at when he fired towards the [Bonne-
ville.]” Dist. Ct. at *7. As we pointed out earlier, while Ortiz
contended that “he was aiming at Lara to the exclusion of an-
yone else,” the district court found this assertion undermined
by Ortiz’s own statement that “his ‘intent was to stop the
threat that was coming at [him]’ and that ‘firing into the vehi-
cle was the way to stop that threat[.]’” Dist. Ct. at *5. A rational
jury could find, based on that statement, that he intended to
hit either the moving Bonneville or any of the people in it. Or
the jury might believe him when he said that he was targeting
only the driver (although even that much might not resolve
the legal issues). This leaves a critical disputed issue of mate-
rial fact on the question whether Ortiz acted in an objectively
reasonable way as he was firing. For purposes of the qualified-
immunity inquiry, these facts, taken in the light most favora-
ble to the Estate, suffice to allege a constitutional violation.
See, e.g., Leaf v. Selnutt, 400 F.3d 1070, 1081 (7th Cir. 2005).
Ortiz has not fully accepted the Estate’s version of the
facts, and so he cannot defend our appellate jurisdiction on
that basis. Indeed, he comes closer to asking us to accept his
version of the facts over the Estate’s. He characterizes the dis-
trict court and the parties as “unequivocally agree[ing] that
Deputy Ortiz did not intend to shoot Davis, but instead
that [Ortiz] was focused on the driver of the vehicle.” Pet.
Brief at 13. That is not what the record shows. The district

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8 No. 19-3355
court specifically found that at “no time did Ortiz state that
he was aiming his weapon solely at [the driver] in such a man-
ner as to eliminate all potential inferences otherwise.” Dist.
Ct. at *5. And Davis maintains that Ortiz “intended to shoot
at the vehicle to stop it,” without regard to any particular oc-
cupant. Ortiz replies that these competing accounts are not
“mutually exclusive” because when Ortiz fired his gun, he
“‘was focused on Lara as the driver,’ and he intended to stop
the vehicle.”
Given the fact that this is a Fourth Amendment case, all
this talk of intent is largely beside the point. The Supreme
Court has made it clear that “Fourth Amendment reasonable-
ness is predominantly an objective inquiry.” See, e.g., Ashcroft
v. al-Kidd, 563 U.S. 731, 736 (2011) (quotation marks omitted).
The pertinent question is whether a jury could find that
Ortiz’s actions—firing repeatedly at a moving vehicle as it
was leaving the parking lot—were objectively unreasonable
under all the circumstances, and thus amount to a Fourth
Amendment violation. There is evidence to support a finding
that Ortiz was aiming at the car as a whole. As part of that
effort, he discharged four bullets, one of which fatally injured
Davis. At trial, Ortiz will have an opportunity to convince the
jury that his actions were objectively reasonable, but we can-
not resolve that question at this stage.
IV
Just as in Johnson, the record on summary judgment in this
appeal reveals issues that must be resolved by the trier of fact.
Ortiz has not raised “a question that is significantly different
from the questions underlying plaintiff’s claim on the merits,”
515 U.S. at 314; rather, he raises the same fact-based question

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No. 19-3355 9
about the objective reasonableness of his seizure of Davis that
the jury must resolve.
We D ISMISS the appeal for lack of jurisdiction.

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