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 REPLY IN SUPPORT OF HER 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 replies in support of
her motion to certify, Dkt. 259, and states:

Kenny’s qualified immunity appeal is frivolous; it is plainly barred by

Johnson v. Jones, 515 U.S. 304 (1997). Indeed, Defendant Kenny has made
extraordinary admissions in pleadings and in testimony that make this case
uniquely suited for certification as frivolous.
First, Kenny claims in his response —as he must—that he is entitled to
summary judgment on Plaintiff’s facts. Dkt. 260 at 6. But this is simply false.
Kenny’s own summary judgment reply brief plainly conceded that he is not entitled
to summary judgment on Plaintiff’s facts:

1

At the outset, Officer Kenny will acknowledge what he must: while he
maintains that it is an entirely unsupported narrative, if the Court
believes that a reasonable jury could conclude that Officer Kenny
simply walked into the stairwell, was never struck or punched by Mr.
Robinson and simply opened fire at Mr. Robinson while he was more
than three or four feet away from him on the stairwell, summary
judgment is not appropriate.
Dkt. 150, at 10 (emphasis added).This is precisely what Plaintiff contends
happened. And, as explained in the motion, this Court’s finding that disputed issues
of material facts that preclude summary judgment is not a reviewable in a narrow
interlocutory qualified immunity appeal. That should end this altogether.
Put another way, an appeal would be non-frivolous only if Kenny could in
good faith argue that qualified immunity would be warranted even if Robinson
never struck or punched him. To his credit, nowhere in his response to Plaintiff’s
motion to certify does Kenny attempt to make that argument. It was of course
clearly established in 2015 that Kenny could not use deadly force against an
unarmed individual without a reasonable basis to be in fear of great bodily harm or
injury. See Tennessee v. Garner, 471 U.S. 1, 11-12 (1985); Sallenger v. Oakes, 473
F.3d 731, 740 (7th Cir. 2007) (affirming denial of qualified immunity where parties
disputed the extent and justification for blows administered to the head); Sherrod v.
Berry, 856 F.2d 802, 805-06 (7th Cir. 1988) (en banc).
Kenny could not possibly dispute that it was clearly established, since he
himself admits that his shooting would be unjustified if Plaintiff’s facts were
adopted. For example, at his deposition the testimony was:

2

Q: So if you take out the punches and he just comes around the corner
and he’s moving forward, are you justified in shooting?
A: No. I would not have shot then.
Q: Would you have been justified in shooting?
A: You’re asking me to speculate. No, I don't believe that I would have
been justified in shooting.
Dkt. 40, at 87-88.
So, in pleadings and testimony, Kenny has admitted that both summary
judgment and qualified immunity are unavailable on Plaintiff’s facts. Rather than
acknowledge as much, Kenny’s response to Plaintiff’s motion to certify rests on the
assumption of his facts. Kenny’s entire anticipated appeal about whether a right
was clearly established presupposes the idea that he was in “close combat” and
physically attacked before he started shooting. Kenny argues:
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 that held Officer Kenny[‘s] 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.
Dkt. 260, at 9-10 (emphasis added). Here again, Kenny has illustrated that he is
absolutely not entitled to a qualified immunity appeal by his own admission,
because the factual scenario he suggests entitles him to qualified immunity is one in
which Kenny fired at Robinson “in the wake of a physical attack.” Id. That is
obviously at the heart of the dispute here and illustrates that it is really a “factual”
dispute, not one even arguably about the law or a “legal question.”
Put simply, just as he did at summary judgment, Kenny has built his
argument in response to this motion off of his own facts, not Plaintiff’s. In its

3

summary judgment ruling, the Court recognized this, highlighted it, and rejected it.
See Dkt. 236, at 42 (“Kenny’s motion depends on the court accepting his very
specific version of events, in which Robinson attacks him with such force and
persistence that any objective, reasonable officer in Kenny’s position would have
feared for his life.”). The Court should reject it a second time as frivolous.
The point of Apostol certification is to prevent litigants from being forced to
endure unnecessary litigation where it is plain that the qualified immunity appeal
is improper. Cf. Dufour-Dowell v. Cogger, 152 F.3d 678, 680 (7th Cir. 1998)
(“Raising a defense of qualified immunity in the face of disputed facts that control
the answer to the question is a waste of everybody’s time.”). The rule is about
judicial economy, as well as cost and expense to the parties. The Seventh Circuit is
therefore vigilant about rejecting “back door” efforts to contest the facts under the
guise of a qualified immunity appeal. Jones v. Clark, 630 F.3d 677, 680 (2011).
Thus, rather than forcing Plaintiff to go through the time and expense of filing a
motion to dismiss the appeal, the cost of completely changing expert schedules, and
the risk of witness unavailability, the Court should deny the motion so the parties
can prepare for trial.1
Conclusion
For the foregoing reasons, Plaintiff’s motion should be granted.
The arguments made by Kenny in his summary judgment briefing illustrate that this case is really
just like McKinney v. Duplain, 463 F.3d 679 (7th Cir. 2006) (“As Johnson made clear, a defendant
‘may not appeal a district court’s summary judgment order insofar as that order determines whether
or not the pretrial record sets forth a ‘genuine’ issue of fact for trial.’” Johnson, 515 U.S. at 319-20.
Yet that is exactly what Officer Duplain is seeking to do: Officer Duplain maintains that the record
does not support the district court's conclusion that a genuine issue of fact exists as to whether
McKinney charged Officer Duplain, because the only evidence that supports the view that McKinney
did not charge comes from the inadmissible opinions of the proffered experts.”).
1

4

Respectfully Submitted,
By: /s/David B. Owens
.
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, David B. Owens, 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.

/sDavid B. Owens

5