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)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

THE ESTATE OF TONY ROBINSON, JR.,
ex. rel. Personal Representative ANDREA IRWIN,
Plaintiff,

Case No: 15-cv-502-jdp

v.
MADISON POLICE OFFICER MATTHEW KENNY,
Defendant.

MADISON POLICE OFFICER MATTHEW KENNY’S BRIEF IN OPPOSITION TO
PLAINTIFF’S MOTION TO CERTIFY APPEAL AS FRIVOLOUS

Officer Matthew Kenny, by his attorneys, Crivello Carlson, S.C., hereby submits this
brief in opposition to the plaintiff’s motion to certify Officer Kenny’s appeal as frivolous. For
the reasons detailed further below, Officer Kenny respectfully requests that the Court not certify
the appeal as frivolous and to allow Kenny to obtain appellate review of the denial of qualified
immunity in advance of trial.
INTRODUCTION
On February 13, 2017, the Court entered its Opinion and Order denying the motion for
summary judgment filed by Officer Kenny. [Docket 236.] Officer Kenny had sought dismissal
of the Fourth Amendment claim against him based, inter alia, on the defense of qualified
immunity. The Court denied summary judgment and concluded that Officer Kenny was not
entitled to qualified immunity. In doing so, the Court stated that “[t]he same factual disputes that
preclude summary judgment on plaintiff’s Fourth Amendment claim against Kenny also
preclude summary judgment on Kenny’s qualified immunity defense.” [Dkt. 236, p. 43.]

The Court noted the facts in dispute which it decided precluded summary judgment in
favor of Officer Kenny on either the Fourth Amendment claim or the qualified immunity
defense:
Plaintiff disputes Kenny’s account and offers an alternative one, relying
on the dash cam video and testimony by forensic experts. The dash cam video
shows that Kenny fired all seven shots from the bottom of the stairs; if Robinson
did attack Kenny at the top of the stairs, Kenny did not shoot him then or there.
According to plaintiff’s forensics experts, Kenny likely fired three shots at
Robinson from the bottom of the stairs, as Robinson came down the stairs. Kenny
likely hit Robinson with three non-fatal shots first, from more than three to four
feet away. According to plaintiff, the dash cam video demonstrates that Kenny
was not flailing or falling down the stairs as he fired his weapon; he was perfectly
controlled and on his feet, until he lunges to avoid tripping on Robinson as
Robinson falls. Kenny fired his fourth, fifth, and sixth shots close to Robinson’s
body, within three to four feet. Kenny continued to back out of the door and fired
his seventh and final shot from the front porch, as Robinson was lying on the
stairs.
[Dkt. 236, p. 7] (emphasis added).
Officer Kenny filed his Notice of Appeal seeking appellate review of the denial of
qualified immunity on February 15, 2017, [Dkt. 258], thereby divesting this Court of jurisdiction.
See Mitchell v. Forsyth, 472 U.S. 511, 525-526 (1985). Officer Kenny filed his appeal intending
to seek appellate review of the qualified immunity determination based on the fact-pattern
outlined by this Court.
While the ink was still drying on Officer Kenny’s Notice of Appeal, the plaintiff filed its
motion to certify Officer Kenny’s appeal as frivolous. [Dkt. 259.] In its motion the plaintiff
asserts that Officer Kenny’s appeal is frivolous because the Court denied Officer Kenny
qualified immunity on the basis of disputed facts, which necessarily implicates the question of
whether the Seventh Circuit Court of Appeals has jurisdiction over this appeal. See [Dkt. 259, p.
3.]

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However, it is well settled that the mere existence of disputed facts is not a sufficient
basis for the denial of qualified immunity or appellate review of the denial of qualified
immunity. See, e.g. Behrens v. Pelletier, 516 U.S. 299, 312-313 (1996) (“[d]enial of summary
judgment often includes a determination that there are controverted issues of material fact and
Johnson surely does not mean that every such denial of summary judgment is non-appealable.”).
Just last month, the Supreme Court of the United States held:
In the last five years, this Court has issued a number of opinions reversing federal
courts in qualified immunity cases. The Court has found this necessary both
because qualified immunity is important to society as a whole and because as an
immunity from suit, qualified immunity is effectively lost if a case is erroneously
permitted to go to trial.
White v. Pauly, 580 U.S. ---, 137 S.Ct. 548, 551-552 (Jan. 9, 2017) (internal quotations and
citations omitted) (per curiam).
For the reasons detailed below, Officer Kenny’s appeal is not frivolous and the Seventh
Circuit Court of Appeals has jurisdiction of this appeal. While a court may be asked to revisit
the question of qualified immunity at the close of evidence at trial, the defense of qualified
immunity is lost once a trial begins. Id. (“like an absolute immunity, [qualified immunity] is
effectively lost if a case is erroneously permitted to go to trial.”); see also Apostol v. Gallion, 870
F.2d 1335, 1338 (7th Cir. 1989) (“it makes no sense for trial to go forward while the court of
appeals cogitates on whether there should be one.”).
ARGUMENT
I.

LEGAL STANDARD FOR CONSIDERING WHETHER AN APPEAL IS
FRIVOLOUS.
With the filing of the Notice of Appeal and pursuant to the protocols of the Seventh

Circuit Court of Appeals, jurisdiction of the claim against Officer Kenny has been transferred to
the Seventh Circuit Court of Appeals and the underlying matter should be stayed until the

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Seventh Circuit’s mandate is issued. Apostol, 870 F.2d at 1339. In order to transfer jurisdiction
back to this Court, it is the Plaintiff’s burden to obtain a determination that the appeal is
frivolous. Id.
In Apostol, the Seventh Circuit Court of Appeals held that district court judges could
certify a Forsyth collateral order appeal as frivolous only if the defendant’s “claim of immunity
is a ‘sham’” and the “disposition is so plainly correct that nothing can be said on the other side.”
Id. Recognizing the extraordinary nature of such a certification, the Seventh Circuit cautioned
district courts that this “power must be used with restraint.” Id. at 1339. The Seventh Circuit has
also recognized that a defendant’s right to appeal a qualified immunity defense under Forsyth
“would be eviscerated if district courts, cloaked with the authority of Apostol, could too easily
certify even potentially meritorious appeals as frivolous.” McGrath v. City of Gary, 976 F.2d
1026, 1030 (7th Cir. 1992).
II.

LEGAL STANDARD FOR APPELLATE JURISDICTION OVER AN APPEAL
BASED ON THE DENIAL OF QUALIFIED IMMUNITY.
In cases where a summary judgment motion based on a claim for qualified immunity is

denied, such denials “generally fall within the collateral order doctrine.” Plumhoff v. Rickard,
134 S.Ct. 2012, 2019 (2014) (citing Ashcroft v. Iqbal, 556 U.S. 662, 671-672 (2009)). The
general rule that only final orders pursuant to 28 U.S.C. § 1291 are immediately reviewable does
not apply to the denial of qualified immunity because “qualified immunity is an immunity from
suit rather than a mere defense to liability.” Id. (quoting Pearson v. Callahan, 555 U.S. 223, 231
(2009)). If qualified immunity applies to an officer’s conduct, “the officer should not be subject
to liability or, indeed, even the burdens of litigation.” Brosseau v. Haugen, 543 U.S. 194, 198
(2004).

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There are limits to appellate review of the denial of qualified immunity. In Johnson v.
Jones, the Supreme Court held that appellate courts did not have jurisdiction to review denials of
qualified immunity to decide questions of “evidence sufficiency.” 515 U.S. 304, 309, 313
(1995). Stated differently, appellate courts do not have jurisdiction to determine “which facts a
party may, or may not, be able to prove at trial.” Id. at 313.
However, since Johnson, both the Supreme Court and the Seventh Circuit Court of
Appeals have correctly recognized that a district court’s finding that factual disputes prevented
summary judgment “does not always preclude appellate review.” Behrens, 516 U.S. at 312-313;
Sallenger v. Oakes, 473 F.3d 731, 738 (7th Cir. 2007).
In Behrens, the United States Supreme Court granted certiorari after a district court
certified an appeal as frivolous and the Ninth Circuit Court of Appeals dismissed the appeal for
want of jurisdiction. Behrens, 516 U.S. at 305. The Supreme Court explained its ruling in
Johnson and held that the “[d]enial of summary judgment often includes a determination that
there are controverted issues of material fact, and Johnson surely does not mean that every such
denial of summary judgment is non-appealable. Johnson held, simply, that determinations of
evidentiary sufficiency at summary judgment are not immediately appealable merely because
they happen to arise in a qualified immunity case.” Id. at 312-313.
There is also well-established precedent of the courts of appeals deciding appeals even if
the court ultimately concludes that issues of material fact prevent a finding of qualified
immunity. In Weinmann, the Seventh Circuit Court of Appeals ultimately concluded that the
“existence of a factual dispute about the circumstances surrounding McClone’s decision to fire
on Jerome precludes a ruling on qualified immunity at this point.” 787 F.3d at 451. However,
despite that finding, the Seventh Circuit did not indicate that the appeal was frivolous or even

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that it lacked jurisdiction. In fact, the Seventh Circuit ruled the opposite: “He [the officer] has
taken an interlocutory appeal from [the summary judgment] order, as he is permitted to do.” Id.
at 446, citing Forsyth, 472 U.S. at 525-526. Despite the existence of factual disputes, the Seventh
Circuit went on to describe its jurisdiction as follows:
[W]e have jurisdiction pursuant to 28 U.S.C. § 1291 over this
appeal only insofar as we may review the district court’s
determination that genuine issues of fact preclude the resolution of
[the officer’s] qualified immunity defense; if we were to find no
such factual issues, we would also be entitled to review the denial
itself.
Weinmann, 787 F.3d at 447.
Through this appeal, Officer Kenny seeks appellate review of purely legal issues. In
considering this appeal, the Seventh Circuit will not be asked to and will not need to weigh any
questions of evidence sufficiency. For purposes of the appeal, Officer Kenny acknowledges, as
he must under the law, the disputes of fact identified by this Court. Contrary to the Plaintiff’s
argument in its most recent Motion, Officer Kenny has argued that summary judgment was
appropriate, even when resolving factual disputes in the Plaintiff’s favor. See, e.g. Docket No.
259, pp. 8-10.
As indicated by the Court in its recitation of those disputed facts, while the parties may
dispute the location of Kenny when he fired shots at Tony Robinson and the trajectory and
distance from Kenny upon firing, even when assuming these facts in the plaintiff’s favor on
summary judgment, as the summary judgment standard requires, this case warrants appellate
review on the question of qualified immunity.

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III.

THE APPEAL IS NOT FRIVOLOUS BECAUSE THE SEVENTH CIRCUIT
COURT OF APPEALS HAS JURISDICTION OVER THE DENIAL OF
QUALIFIED IMMUNITY IN THIS CASE.
A district court’s conclusion that an appeal is frivolous is an extraordinary finding. In

Apostol, the Seventh Circuit Court of Appeals held that district court judges could certify a
Forsyth collateral order appeal as frivolous only if the defendant’s “claim of immunity is a
‘sham’” and the “disposition is so plainly correct that nothing can be said on the other side.” Id.
The appeal filed by Officer Kenny is in no way a sham. While Kenny does not anticipate that
this Court will reconsider its summary judgment ruling, Kenny does have viable legal arguments
on the appeal of the denial of qualified immunity. Moreover, his arguments certainly do not
amount to a “sham.”
A.

Qualified Immunity Standard

The question of whether immunity attaches is a question of law and is always one for
judicial determination, even though pertinent facts may be in dispute. Rakovich v. Wade, 850
F.2d 1180, 1202 (7th Cir. 1998), (en banc), cert. denied, 488 U.S. 968 (1998). Qualified
immunity shields government officials from civil liability unless the official violated a statutory
or constitutional right that was clearly established right at the time of the challenged conduct.
Pearson v. Callahan, 555 U.S. 223, 235 (2009). To be “clearly established,” a right must be
sufficiently clear “that every reasonable official would [have understood] that what he is doing
violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). In other words, existing
precedent must have placed the statutory or constitutional question beyond debate. Ashcroft v. alKidd, 563 U.S. 731, 741 (2011). A plaintiff most commonly may demonstrate the existence of a
clearly established right by identifying a closely analogous case that had decided that the conduct
was forbidden. Forman v. Richard Police Department, 104 F.3d 950, 958 (7th Cir. 1997). The

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Seventh Circuit Court of Appeals ultimately reviews the denial of qualified immunity de novo.
Rakovich v. Wade, 850 F.2d 1180, 1204 (7th Cir. 1993).
The Seventh Circuit Court of Appeals recently reiterated the need to identify the relevant
constitutional right in a fact-specific context to avoid “convert[ing] the rule of qualified
immunity…into a rule of virtually unqualified liability simply by alleging a violation of
extremely abstract rights.” White v. Stanley, 745 F.3d 237, 241 (7th Cir. 2014) (quoting
Anderson, 483 U.S. at 639). The Seventh Circuit also recognized that “[q]ualified immunity is
supposed to protect officers in the close case, and it therefore must apply to the officer’s snap
judgment in a legally hazy area.” White, 745 F.3d at 241 (citing Stanton v. Sims, 134 S.Ct. 3, 7,
(2013) (per curiam)).
The qualified immunity defense was described in Weinmann as involving a “double
deference” in favor of the officer: “the substantive constitutional standard protects [the officer’s]
reasonable factual mistakes and qualified immunity protects [the officer] from liability where
[the officer] reasonably misjudge[d] the legal standard.” Weinmann, 787 F.3d at 450 (quoting
Catlin v. City of Wheaton, 574 F.3d 361, 369 (7th Cir. 2009).
B.

The Appeal is Meritorious

Officer Kenny’s appeal is not frivolous for several reasons. First, Kenny has been and
continues to be prepared to have his claim for qualified immunity evaluated on the version of
genuine and supportable facts that most favors the plaintiff’s position. In that regard, if the
qualified immunity defense is evaluated using the competent evidentiary record that best
supports the plaintiff’s claims, there are no factual disputes that inhibit a ruling on qualified
immunity. 1 Throughout the summary judgment briefing and decision, no authority has been
1

The Supreme Court in Behrens recognized that an officer may “claim on appeal that all of the conduct
which the District Court deemed sufficiently supported for purposes of summary judgment met the

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presented that renders the use of deadly force in the scenario that unfolded before Kenny, even as
factually described by the plaintiff, “beyond debate.”
Disputes of fact like those between the parties regarding the location of Officer Kenny
(including the trajectory and distance from Tony Robinson when shots were fired) have not
before prevented the question of qualified immunity from being reviewed on appeal. In City and
County of San Francisco v. Sheehan, the United States Supreme Court reversed a Ninth Circuit
ruling that denied qualified immunity in a deadly force case based on perceived disputes of
material fact. 135 S.Ct. 1765 (2015). Importantly, for its part, the Ninth Circuit Court of Appeals
denied qualified immunity and pointed to various disputes of fact regarding Sheehan’s actions
immediately prior to shooting, including where Sheehan was located as she was shot. Sheehan v.
City and County of San Francisco, 743 F.3d 1211, 1219-1220 (9th Cir. 2014) (overruled).
Notably, despite finding these perceived disputes of fact, the Ninth Circuit Court of Appeals still
exercised jurisdiction over the appeal.
However, on review, the Supreme Court found some of those disputes to be immaterial to
the Fourth Amendment claim and otherwise concluded that qualified immunity should be
granted “because these officers had no ‘fair and clear warning of what the Constitution
requires.’” Sheehan, 135 S.Ct. at 1778 (quoting al-Kidd, 563 U.S at 746).
Further, the Supreme Court in Sheehan again cautioned courts “not to define clearly
established law at a high level of generality.” Sheehan, 135 S.Ct. at 1776. In its Opinion here,
the Court acknowledged several factual disputes regarding the bullet trajectory and distance, but
did not identify (because it was not provided any by the plaintiff) any closely analogous case law

[qualified immunity] standard…” Behrens, 516 U.S. at 313. Officer Kenny intends to offer the same
argument on this appeal. Even assuming the facts in the light most favorable to what the plaintiff can
prove, the law that existed on March 6, 2015, did not place the alleged unconstitutionality of the use of
deadly force by Kenny “beyond debate.”

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that held Officer Kenny use of deadly force was unlawful in the wake of a physical attack,
regardless of whether Kenny began shooting at the top of the stairs or at the bottom of the stairs.
Instead, the Court concluded that
whether 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. Robinsons 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).
[Dkt. 236, p. 44.]
The Defendant respectfully believes that the foregoing general conclusion by the Court is
similar to what the Supreme Court cautioned against in Sheehan, and should not prevent Officer
Kenny from exercising his legal right to obtain appellate review prior to incurring the expense,
risk and disruption of trial.
CONCLUSION
This appeal is not a sham or without viable support.

Accordingly, Officer Kenny

respectfully requests that the Court not certify the appeal as frivolous and instead stay all trial
proceedings to allow Kenny to obtain appellate review of the denial of qualified immunity in the
Seventh Circuit Court of Appeals.

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Dated this 15th day of February, 2017.

By: _s/ _Samuel C. Hall, Jr._______
SAMUEL C. HALL, JR.
State Bar No. 1045476
TIMOTHY M. JOHNSON
State Bar No. 1052888
Attorneys for Madison Police Officer
Matthew Kenny
CRIVELLO CARLSON, S.C.
710 N. Plankinton Avenue, Suite 500
Milwaukee, WI 53203
Phone: [phone]
Fax: [phone]
E-mail: [e-mail]
[e-mail]

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