The Estate of Tony Robinson, Jr., ex rel. Personal Representative Andrea Irwin v. The City of Madison, Wisconsin et al

Filing 279

Transmission of Notice of Appeal, Orders, Motion, Briefs and Docket Sheet to Seventh Circuit Court of Appeals re: 258 Notice of Appeal, (Attachments: # 1 Order No.: 236, # 2 Motion to Certify Appeal as Frivolous, # 3 Brief in Opposition to Motion, # 4 Brief in Reply to Motion, # 5 Order No.: 274 Granting Motion, # 6 Docket Sheet) (lak)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

THE ESTATE OF TONY ROBINSON, JR.,
Ex. Rel. Personal Representative
ANDREA IRWIN,

No. 15-CV-502

Plaintiff,
v.

Hon. Judge Peterson

THE CITY OF MADISON, WISCONSIN,
MADISON POLICE OFFICER MATTHEW KENNY,
Defendants.
PLAINTIFF’S MOTION TO CERTIFY
DEFENDANT KENNY’S QUALIFIED IMMUNITY APPEAL AS FRIVOLOUS
Plaintiff, Andrea Irwin, as personal representative of the Estate of Tony
Robinson Jr., by and through her undersigned counsel, respectfully moves this Court
for an order certifying Defendant Kenny’s qualified immunity appeal as frivolous and in
support states as follows:

Introduction
On February 13, 2017, the Court denied Defendant Officer Kenny’s motion
for summary judgment, finding that factual disputes precluded entry of judgment in
Kenny’s favor on Plaintiff’s Fourth Amendment claim and on Kenny’s affirmative
qualified immunity defense. Dckt. 236. Trial is scheduled to begin in less than two
weeks, and Plaintiff is looking forward to her day in court.
With trial looming, Kenny seeks to indefinitely postpone a jury’s
consideration of the claims against him by filing a notice of interlocutory appeal

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from this Court’s denial of summary judgment. Dckt. 258. The appeal is frivolous. It
is impossible to accept Plaintiff’s version of the facts, as Kenny must, and find that
he is entitled to qualified immunity. There is no doubt that this is Kenny’s burden.
See Scott v. Harris, 550 U.S. 372, 378 (2007) (At summary judgment, “courts are
required to view the facts and draw reasonable inferences “in the light most
favorable to the party opposing the [summary judgment] motion.” In qualified
immunity cases, this usually means adopting . . . the plaintiff's version of the
facts.”); Weinmann v. McClone, 787 F.3d 444, 449 (7th Cir. 2015) (“Our task is to
determine, under [Plaintiff’s] version of the facts, if [the Defendant Officer] was
objectively reasonable in his belief that his life was in danger.”).
And, there is no doubt that Kenny’s motion for summary judgment fails to
accept Plaintiff’s facts, particularly about what happened in the stairwell. Kenny
claims he announced “Madison Police”; Plaintiff contends he did not. Kenny claims
he heard noises in the stairwell; Plaintiff contends it was quiet when he was in the
stairwell. Kenny claims he was in “close combat” with Robinson at the top of the
stairs; Plaintiff claims, that Robinson fell down the stairs, as Kenny was at the base
of the stairs and started shooting from there. Kenny claims that Robinson was
“aggressing” toward him during all seven shots; Plaintiff claims, as the dash cam
video illustrates, Robison was not (and could not have been) so aggressing. Indeed,
Kenny’s has conceded that accepting Plaintiff’s facts means summary judgment
would be improper. Dkt. 150, at 10. At core, Kenny’s claim is that the Court must
accept his story of the events, and ignore (or exclude) all of the evidence

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undermining his account.
But, this sort of argument is not permissible for a narrow interlocutory
appeal in the federal courts. An argument about whose story to believe, and what
the evidence shows should be made to the jury, not the Court of Appeals. See
Johnson v. Jones, 515 U.S. 304 (1995); Whitlock v. Brueggemann, 682 F.3d 567, 574
(7th Cir. 2012) (rejecting the argument that the court of appeals should be allowed
to second guess whether the district court cited enough evidence in the summary
judgment record to conclude that a trial was warranted); Jones v. Clark, 630 F.3d
677, 680 (2011) (a qualified appeal can happen only where defendants accept
plaintiff’s version of the facts, but the court will reject “back-door effort[s] to contest
the fact,” and an appeal from a denial of qualified immunity cannot be used as an
early way to test the sufficiency of the evidence to reach the trier of fact”).
As such, this Court should certify the appeal as frivolous under Apostol v.

Gallion, 870 F.2d 1335, 1338-40 (7th Cir. 1989), because all the arguments Officer
Kenny can make on appeal involved a dispute about the facts, and the Seventh
Circuit lacks jurisdiction to consider such questions. Appellate jurisdiction over
interlocutory, qualified-immunity appeals is limited to purely legal arguments.
Under these circumstances, the Court can and should certify Kenny’s jurisdictionwanting appeals as frivolous so that this case may proceed to trial on February 27,
2017 as scheduled.

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Procedural Background
Defendant Madison Police Officer Matthew Kenny filed a motion for
summary judgment in this case, arguing that he was entitled to judgement as a
matter of law on Plaintiff’s Fourth Amendment claim. Dckt. 63. In support, Kenny
argued that there was no genuine issue of material fact as to what occurred in the
stairwell at 1125 Williamson Street when he fired seven shots and killed Tony
Robinson, Jr. Id. Kenny took the position that the Court must credit his story that
Robinson aggressively attacked him, which would make Kenny’s decision to use
deadly force reasonable as a matter of law. Id. at 8-9. Urging the Court to adopt his
version of the facts, Kenny also asked the Court to find that he was entitled to
judgement in his favor on qualified immunity. Id. at 16-21.
In response, Plaintiff set forth evidence amassed during discovery illustrating
that Kenny’s account of what happened was false and argued that fact issues
precluded the entry of summary judgment in Kenny’s favor, both on Plaintiff’s
Fourth Amendment claim and on Kenny’s qualified immunity defense. Dckt. 130.
Plaintiff Response to Kenny’s Proposed Findings of Fact, illustrated, at great
length, the numerous hotly contested facts. Dckt. 131. Plaintiff also proffered her
own version of events, though her facts, which Defendants hotly disputed. Dkt. 148.
One fact is undisputed: Kenny’s statements about what happened, and what he
observed in the stairwell, have changed overtime. All of the facts in Kenny’s
“snapshot” are false, for example. Nonetheless, in his reply brief on the summary
judgment motion, Kenny persisted in his argument that the evidence Plaintiff

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adduced was insufficient to create a genuine issue of material fact as to what
happened in the stairwell at 1125 Williamson Street. See e.g., Dckt. 150 at 1 (“[T]he
story told by the Plaintiff in response to summary judgment is pure fiction and not
supported by evidence in the record.”); id. at 2 (“The response brief tells a tale of a
police officer entering a stairwell and firing his weapon at an unarmed man without
provocation; however, that story is wholly lacking evidentiary support.”); id. at 7
(“The Plaintiff cannot genuinely dispute Officer Kenny’s testimony that prior to the
shooting, at or near the top of the stairs, Mr. Robinson violently assaulted him, to
the point that Officer Kenny lost his balance on the stairwell and feared that he
would lose consciousness and potentially be disarmed.”); id. at 15 (“In opposing
Officer Kenny’s qualified immunity defense, the Plaintiff relies entirely on the
assertion that qualified immunity should not be granted when there are disputes of
material fact. However, as addressed above, the disputes of fact in this case are not
genuine or material.”).
At no point in the summary judgment briefing did Kenny argue that he was
entitled to qualified immunity on Plaintiff’s version of the facts. See Dckt. 63
(Kenny’s opening brief); 150 (Kenny’s reply brief). Instead, he actually conceded
that if Plaintiff’s facts were accepted, summary judgment would be improper. Dckt.
150, at 10.
The Court denied Kenny’s motion, finding that Plaintiff had adduced
sufficient evidence to create a genuine issue of material fact as whether Kenny’s use
of deadly force was reasonable. Dckt. 235 at 41-43. As to Kenny’s assertion of

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qualified immunity, the Court observed, “Kenny’s motion for summary judgment on
his qualified immunity defense depends on facts that are far from undisputed and
asks the court to draw inferences in his favor.” Id. at 43. As the Court explained,
Kenny sought qualified immunity based on his version of the facts, but Plaintiff had
presented an alternative version of facts, under which Kenny would not be entitled
to qualified immunity. Id. at 43-44. The Court went on to reason:
[W]hether Robinson had a clearly established Fourth Amendment right not
to be seized through the use of deadly force depends on what happened
between him and Kenny in the stairwell. Robinson had “a constitutional right
not to be shot on sight if he did not put anyone else in imminent danger or
attempt to resist arrest for a serious crime.” Weinmann v. McClone, 787 F.3d
444, 448 (7th Cir. 2015). Factual disputes preclude a determination of
whether a clearly established constitutional right was at stake at the time of
the shooting. See id. at 451 (affirming denial of summary judgment on
qualified immunity issue where there was “a factual dispute about the
circumstances surrounding [the officer’s] decision to fire on [the victim]”). The
court must deny Kenny summary judgment on his qualified immunity
defense.

Id. at 44. Defendant Kenny subsequently filed a notice of appeal.
Argument
Under Apostol v. Gallion, district courts should protect the “legitimate
interests of other litigants and the judicial system” from doomed, qualified
immunity appeals by certifying them as frivolous. 870 F.2d 1335, 1338-40 (7th Cir.
1989). That certification allows the case to proceed while, absent certification, the
notice of appeal would deprive the district court of jurisdiction and, in effect,
postpone the upcoming trial indefinitely. Id.

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This Court should deem Kenny’s appeal frivolous because the Seventh Circuit
lacks jurisdiction to hear it. When it comes to appeals of orders denying summary
judgment based on qualified immunity, appellate jurisdiction is limited to
arguments raising legal issues. See Johnson v. Jones, 515 U.S. 304, 313 (1995);

Jones v. Clark, 630 F.3d 677, 679-80 (7th Cir. 2011) (“a qualified-immunity appeal
must focus exclusively on legal questions about immunity, rather than factual
disputes tied up with the merits of the case”); see also Huff v. Reichert, 744 F.3d
999, 1004-05 (7th Cir. 2014) (holding that the court lacked jurisdiction to even
consider the defendant’s arguments about the factual record during qualifiedimmunity appeal); Whitlock v. Brueggemann, 682 F.3d 567, 574 (7th Cir. 2012)
(rejecting the argument that the court of appeals should be allowed to second guess
whether the district court cited enough evidence in the summary judgment record to
conclude that a trial was warranted); Hill v. Coppelson, 627 F.3d 601 (7th Cir. 2010)
(dismissing immunity appeal for lack of jurisdiction where resolution of legal issues
required revisiting district court’s determination of the facts); Levan v. George, 604
F.3d 366 (7th Cir. 2010) (dismissing immunity appeal that presented both “factual
determinations” and “the legal issue of qualified immunity” because it was “nearly
impossible to sever the two questions”); Villo v. Eyre, 547 F.3d 707, 711-12 (7th Cir.
2008) (dismissing immunity appeal for lack of jurisdiction and explaining that the
Court “ha[s] not hesitated to dismiss interlocutory appeals where the defendant
interposes factual issues in the appeal”). Practically speaking, this means that
Kenny can make only two types of qualified immunity arguments on appeal. He can

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argue (1) that, even if everything went down how the plaintiff says it did, there was
no constitutional violation as a matter of law or (2) that, even if the plaintiff’s
version of events adds up to a constitutional violation, the right violated was not
clearly established. See Jones, 630 F.3d at 680–81. Those are the only appealable
legal questions properly up for grabs on an interlocutory appeal, and Kenny can
make neither of them on appeal.
Fact-driven arguments are off limits. Id. As the authorities above, and others
additionally, have explained, Kenny cannot argue that Plaintiff’s evidence is
insufficient to allow a reasonable trier of fact to find a constitutional violation. See

e.g., Gutierrez v. Kermon, 722 F.3d 1003, 1009 (7th Cir. 2013) (appellate court can
consider only abstract legal questions on appeal from denial of defense of qualified
immunity; it may not decide whether district court erred in finding that genuine
dispute of material fact existed); Via v. LaGrand, 469 F.3d 618, 624 (7th Cir. 2006)
(“[T]his court lacks interlocutory jurisdiction to review the record to determine
whether the district court erred in finding that a genuine issue of material fact
exists.”). And, critical here, Kenny cannot dodge the jurisdictional bar by couching
factual arguments in legal terms: “where the defendants say that they accept the
plaintiff's version of the facts, we will take them at their word and consider their
legal arguments in that light. If, however, we detect a back-door effort to contest the
facts, we will reject it and dismiss the appeal for want of jurisdiction.” Jones, 630
F.3d at 680. The hallmark of this back-door maneuver is a defendant arguing
qualified immunity without accepting the plaintiff’s version of events. See id.

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That’s exactly what we have here. Officer Kenny must attempt to make
backdoor arguments on appeal because backdoor arguments are all he made to this
Court, meaning all other arguments are waived. Officer Kenny argued qualified
immunity to this court by arguing that, under his version of the facts, no clearly
established right was violated. None of Officer Kenny’s arguments genuinely
accepted the plaintiff’s version of the facts or made other arguments. Accordingly,
the back-door arguments Kenny made to this court are the only arguments that
would not be deemed waived if made on appeal. Hutt v. AbbVie Products LLC, 757
F.3d 687, 695 (7th Cir. 2014) (arguments not made below are waived on appeal). In
short, Kenny’s appeal is frivolous because the only arguments for which appellate
jurisdiction obtains are waived and the only arguments that aren’t waived fail on
jurisdiction.
District courts in this circuit have granted motions like this one, to certify
such baseless interlocutory appeals as frivolous. See e.g., O'Keefe v. Schmitz, No.
14-C-139, 2014 WL 1816922, at *2 (E.D. Wis. May 8, 2014) (qualified immunity
frivolous when based upon defendants’ view of the facts); Lanza v. City of Chicago,
No. 08 C 5103, 2010 WL 5313483, at *2 (N.D. Ill. Dec. 20, 2010) (certifying
defendant’s immunity appeal as frivolous, disputed facts divest Seventh Circuit of
jurisdiction); Engel v. Buchan, No. 10 C 3288, 2010 WL 5014156, at *2 (N.D. Ill.
Dec. 3, 2010) (finding appeal frivolous because defendant was bound by other
decision denying him qualified immunity); Vladic v. Hamann, No. 00 C 6739, 2002
WL 31248544, at *2 (N.D. Ill. Oct. 4, 2002) (appeal frivolous because it does not rest

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on a question of law); Vidmar v. Chicago Bd. of Educ., No. 98 C 0951, 1999 WL
409929, at *5 (N.D. Ill. June 7, 1999) (appeal is “so thin on the merits that it is
‘frivolous”); Carter v. O'Sullivan, 924 F. Supp. 903, 908 (C.D. Ill. 1996) (district
court certified Plaintiff’s appeal as frivolous).1
Finally, it should also be noted that the parties are now less than two weeks
away from trial. Plaintiff, her counsel, and her experts, have spent considerable
time and effort ramping up for a February 27, 2017 trial date. Plaintiff’s counsel has
confirmed expert’s availability, and they have adjusted their travel plans and even
given up other work to be in Madison the week of the 27th. If the trial date is
vacated, those efforts will have been wasted, and Plaintiff and her family will have
to summon up their painful memories once again several months or years in the
future, after Kenny loses his appeal.
“Courts are not helpless in the face of manipulation. District judges lose
power to proceed with trial because the defendants' entitlement to block the trial is
Plaintiff acknowledges cases in this district where courts have occasionally
been reluctant to use the authority granted to them in Apostol. See Estate of
Heenan ex rel. Heenan v. City of Madison, No. 13-CV-606-WMC, 2015 WL 3539613,
at *2 (W.D. Wis. June 5, 2015) (citing Jones v. Wilhelm, No. 03-C-0025-C, 2004 WL
420147, at *2 (W.D. Wis. Feb. 24, 2004)). Nevertheless, Plaintiff submits that the
circumstances of this case differ sharply from Heenan and Jones. Here, there is no
possible way to invoke jurisdiction of the Court of Appeals and Kenny has conceded
that acceptance of Plaintiff’s facts would make summary judgment improper. By
contrast, Heenan and Jones involved factual scenarios where, even crediting the
Plaintiff’s account, it was conceivably possible in some universe that defendants
could convince the Seventh Circuit to find in their favor on qualified immunity
(though the district found it exceedingly unlikely that would happen). But this case
is different. Defendant Kenny cannot raise argument on appeal that he is entitled to
immunity on Plaintiff’s set of facts because he never raised it below. Kenny has
forfeited that argument.
1

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the focus of the appeal. If the claim of immunity is a sham, however, the notice of
appeal does not transfer jurisdiction to the court of appeals, and so does not stop the
district court in its tracks.” Apostol, 870 F.2d at 1339. This Court can and should
certify Defendant Kenny’s appeal as frivolous.
Conclusion
WHEREFORE, Plaintiff respectfully requests that this Court certify Officer
Kenny’s appeal as frivolous and proceed with trial on February 27, 2017.
Respectfully Submitted,
By: /s/Elizabeth Mazur

.

Jon Loevy
Elizabeth Mazur
Anand Swaminathan
David B. Owens
LOEVY & LOEVY
311 N. Aberdeen Street, 3rd Floor
Chicago, IL 60607
Phone: [phone]

Dated: February 15, 2017.

CERTIFICATE OF SERVICE
I, Elizabeth Mazur, an attorney, certify that on February 15, 2017, I filed the
foregoing response via the Court’s CM/ECF system and thereby served a copy on all
counsel of record.

/s/ Elizabeth Mazur

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