Blake Stewardson v. Cameron Biggs

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-3118
BLAKE S TEWARDSON ,
Plaintiff-Appellee,
v.
C AMERON BIGGS ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:18-cv-00958-DRL-MGG – Damon R. Leichty, Judge.
____________________
A RGUED M AY 25, 2022 — DECIDED A UGUST 5, 2022
____________________
Before R IPPLE, R OVNER , and JACKSON -A KIWUMI , Circuit
Judges.
JACKSON -A KIWUMI , Circuit Judge. We have explained many
times that we do not have jurisdiction to review qualified im-
munity denials on interlocutory appeal when the district
court’s decision, or the appellant’s arguments, turn on dis-
putes of material fact. See, e.g., Bayon v. Berkebile, 29 F.4th 850,
856 (7th Cir. 2022); Ferguson v. McDonough, 13 F.4th 574, 584
(7th Cir. 2021); Day v. Wooten, 947 F.3d 453, 459 (7th Cir. 2020),

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2 No. 21-3118
cert. denied sub nom. Shanika Day v. Wooten, 141 S. Ct. 1449
(2021); Gant v. Hartman, 924 F.3d 445, 451 (7th Cir. 2019); Dock-
ery v. Blackburn, 911 F.3d 458, 465–66 (7th Cir. 2018). Yet we
continue to receive appeals from officers who challenge dis-
trict court orders denying them qualified immunity because
of disputed facts. So, we repeat: we may review district court
orders denying qualified immunity on interlocutory appeal
only when the appellant brings “a purely legal argument that
does not depend on disputed facts.” Ferguson, 13 F.4th at 580
(quotation omitted).
The interlocutory appeal before us does not meet this cri-
terion. Rather, Deputy Cameron Biggs’s argument is “insepa-
rable from the questions of fact identified by the district
court” and presents no purely legal issue. Koh v. Ustich, 933
F.3d 836, 838 (7th Cir. 2019). We therefore dismiss this appeal
for lack of jurisdiction.
I
We recount the facts in the light most favorable to Blake
Stewardson, the nonmoving party. Smith v. Finkley, 10 F.4th
725, 729 (7th Cir. 2021). Around midnight on January 1, 2018,
a City of Logansport officer arrested and transported Stew-
ardson to the Cass County, Indiana, jail for operating a motor
vehicle while intoxicated and resisting law enforcement. At
the jail, Stewardson argued with officers, yelled obscenities at
them, and resisted their efforts to control him. Stewardson al-
leges that five incidents of excessive force took place that
morning; three are relevant to this appeal. First, Biggs’s sub-
ordinate, Deputy Christopher Titus, slammed Stewardson’s
face into a wall while Stewardson was handcuffed behind his
back. Biggs witnessed the face slam but failed to admonish
Titus not to use additional excessive force on Stewardson or

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No. 21-3118 3
restrict Titus’s access to Stewardson. One minute later, after
Titus and Biggs escorted Stewardson to a cell, Titus per-
formed a “leg sweep” on handcuffed Stewardson and caused
Stewardson to hit the ground. Biggs also witnessed this inci-
dent. Lastly, later that morning, Titus entered Stewardson’s
cell and used a “hip toss” to take Stewardson to the ground.
Biggs did not witness the hip toss.
Stewardson brought suit under 42 U.S.C. § 1983 against
the City of Logansport, Biggs, Titus, and other officers alleg-
ing violations of his Fourteenth Amendment rights stemming
from the alleged excessive force incidents. The district court
interpreted Stewardson’s complaint as alleging failure to in-
tervene claims against Biggs for not intervening when Titus
used excessive force, although he did not explicitly label these
claims in his complaint.
After discovery, Biggs sought summary judgment based
on qualified immunity. The district court concluded that
Biggs was entitled to qualified immunity for not intervening
when Titus performed the hip toss (which Biggs did not see),
but it denied Biggs qualified immunity for not intervening
when Titus performed the leg sweep. The court explained that
“it is clearly established that officers have a duty to intervene
when a realistic opportunity would prevent use of excessive
force on handcuffed individuals, individuals who are not or
have stopped resisting arrest, and even individuals resisting
law enforcement.” Stewardson v. Cass Cnty., No. 3:18-CV958
DRL-MGG, 2021 WL 4806373, at *3 (N.D. Ind. Oct. 14, 2021)
(citing Miller v. Smith, 220 F.3d 491, 495 (7th Cir. 2000); Yang v.
Hardin, 37 F.3d 282, 285-86 (7th Cir. 1994); Byrd v. Brishke, 466
F.2d 6, 9-11 (7th Cir. 1972); Byrd v. Clarke, 783 F.2d 1002, 1007
(11th Cir. 1986); and Webb v. Hiykel, 712 F.2d 405, 408 (8th Cir.

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4 No. 21-3118
1983)). The court reasoned that “[o]nly moments before Dep-
uty Titus tripped and slammed a handcuffed Mr. Stewardson
onto the ground, Deputy Biggs witnessed him slam Mr. Stew-
ardson into a wall. Deputy Biggs was present and witnessed
both uses of excessive force.” Id. It concluded that “construing
the facts in the light most favorable to Mr. Stewardson, Dep-
uty Titus’[s] conduct would have been obvious as a violation
to Deputy Biggs by mere observation that his fellow deputy
was using excessive force.” Id.
Biggs appeals this denial of qualified immunity.
II
Biggs argues that he is entitled to qualified immunity be-
cause he did not have sufficient time or opportunity to pre-
vent Titus from leg sweeping Stewardson. Before considering
the merits of Biggs’s argument, we must first determine
whether we have jurisdiction to review this appeal. We con-
clude that we do not.
Generally, “a district court’s denial of summary judgment
is an unappealable interlocutory order because it is not a ‘final
decision’” under 28 U.S.C. § 1291. Bayon, 29 F.4th at 853 (cita-
tions omitted). A narrow exception applies to this rule when
a district court denies a defendant’s request for qualified im-
munity. Id. at 854. An interlocutory appeal of a qualified im-
munity denial is appealable to the extent that it turns on issues
of law. Id. (citation omitted). “[O]ur review is therefore con-
fined to abstract issues of law” at this interlocutory stage, and
our “appellate jurisdiction is secure only if the relevant mate-
rial facts are undisputed or (what amounts to the same thing)
when the defendant accepts the plaintiff’s version of the facts

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No. 21-3118 5
as true for now.” Id. at 854, 856 (citations and quotation omit-
ted).
To determine whether Biggs’s qualified immunity argu-
ments turn on legal issues only, we “closely examine”
whether: (1) the district court “identifie[d] factual disputes as
the reason for denying qualified immunity;” and (2) Biggs
“make[s] a back-door effort to use disputed facts” to support
his arguments. Smith, 10 F.4th at 736 (citations and quotation
omitted). When we answer yes to both questions, as we do
here, we lack jurisdiction over the appeal.
First, the district court denied Biggs qualified immunity
based on a factual dispute: whether Biggs had a realistic op-
portunity to intervene to prevent Titus from leg sweeping
Stewardson. It is clearly established that “[a]n officer who is
present and fails to intervene to prevent other law enforce-
ment officers from infringing the constitutional rights of citi-
zens is liable under § 1983 if that officer had reason to know
… excessive force was being used,” and “the officer had a re-
alistic opportunity to intervene to prevent the harm from oc-
curring.” Yang, 37 F.3d at 285 (citations omitted). See also Gill
v. City of Milwaukee, 850 F.3d 335, 342 (7th Cir. 2017).1 A real-
istic opportunity to intervene may exist if an officer could
have “called for a backup, called for help, or at least cautioned
[the officer] to stop.” Yang, 37 F.3d at 285. The realistic oppor-
tunity analysis “almost always implicate[s] questions of fact
for the jury: Whether an officer had sufficient time to
1 This rule flows directly from this court’s 1972 holding in Byrd v. Brishke
that “it is clear that one who is given the badge of authority of a police
officer may not ignore the duty imposed by his office and fail to stop other
officers who summarily punish a third person in his presence or otherwise
within his knowledge.” 466 F.2d at 11.

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6 No. 21-3118
intervene or was capable of preventing the harm caused by
the other officer is generally an issue for the trier of fact un-
less, considering all the evidence, a reasonable jury could not
possibly conclude otherwise.” Abdullahi v. City of Madison, 423
F.3d 763, 774 (7th Cir. 2005) (emphasis omitted) (citation and
quotation omitted). The district court found the analysis in
this matter to be no different.
According to Stewardson, after Biggs witnessed Titus
slam him into a wall, but before the officers took Stewardson
to the cell where Titus performed the leg sweep, Biggs had a
realistic opportunity to intervene because he could have ad-
monished Titus or denied Titus further access to Stewardson.
Meanwhile, Biggs argued that he did not have sufficient time
and opportunity to intervene. The district court concluded
that whether Biggs had a realistic opportunity to prevent Ti-
tus from leg sweeping Stewardson was therefore a disputed
fact that precluded the court from granting Biggs qualified
immunity at summary judgment.
Second, Biggs’s arguments on appeal are “dependent
upon, and inseparable from” that disputed fact we just iden-
tified. Smith, 10 F.4th at 736 (citations and quotation omitted).
Biggs acknowledges for purposes of this appeal that he
“could have verbally admonished Titus not to use any addi-
tional excessive force” after he slammed Stewardson’s head
against the wall and he “could have restricted Titus’[s] access
to Stewardson and gotten other law enforcement officers …
[to] escort Stewardson.” But he argues that he did not have
“sufficient time or opportunity to intervene” because the leg
sweep happened moments after they entered the cell, he did
not know Titus was going to employ a leg sweep, and Stew-
ardson was on the ground quickly after Titus initiated and

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No. 21-3118 7
completed the leg sweep. Essentially, Biggs asks us to recon-
sider the district court’s conclusion that a jury could find that
the timing of events gave him enough time to reasonably in-
tervene. We will not do so. See Bayon, 29 F.4th at 853–54. His
appeal illuminates that his arguments are “inseparable from
the questions of fact identified by the district court.” Koh, 933
F.3d at 838. We thus lack jurisdiction to review this appeal.
Separately, we note that although the district court found
that a factual dispute precluded granting Biggs qualified im-
munity at summary judgment, Biggs is not foreclosed from
asserting qualified immunity at trial. See Ferguson v.
McDonough, 13 F.4th 574, 584 (7th Cir. 2021). “At trial, a jury
may resolve disputed facts in [Biggs’s] favor, and the district
court could then determine he is entitled to qualified immun-
ity as a matter of law.” Id. (citations omitted).
III
For the reasons above, we DISMISS this appeal for lack of
jurisdiction.

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