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,
Plaintiff,
OPINION & ORDER
v.
THE CITY OF MADISON, WISCONSIN, and
MATTHEW KENNY,
15-cv-502-jdp
Defendants.
Defendant Matthew Kenny seeks immediate review by the court of appeals of this
court’s denial of his motion for summary judgment on qualified immunity. Dkt. 258. Kenny
is entitled to this immediate review unless the court certifies that his appeal is frivolous.
Plaintiff has asked the court to do so, Dkt. 259, and the parties promptly briefed the matter,
Dkt. 260 and Dkt. 271. The court concludes that Kenny’s appeal is frivolous, because it
relies on a fact—that Robinson attacked Kenny in the stairwell—that is genuinely disputed.
The trial will proceed as scheduled on February 27, 2017, unless the Seventh Circuit Court of
Appeals overrules this order.
ANALYSIS
An interlocutory appeal of a decision denying qualified immunity usually stays
proceedings in the district court; the “appeal divests the district court of jurisdiction (that is,
authority) to require the appealing defendants to appear for trial.” Apostol v. Gallion, 870 F.2d
1335, 1338 (7th Cir. 1989). The principle underlying this rule is that an officer entitled to
qualified immunity should be shielded not only from ultimate liability but from the hardships
of the litigation itself. But there is a risk of abuse: the rule could be used to delay and
frustrate meritorious claims. So if the defendant’s qualified immunity claim is without even
arguable merit, or is otherwise an unwarranted manipulation of the process, the district court
may certify the appeal as frivolous and proceed to trial. Id. at 1339.
Deeming the appeal to be frivolous is not a decision to be made lightly. The Seventh
Circuit instructs district courts to exercise this particular power sparingly. Id. And the district
courts in this circuit appear to have heeded that warning. See Estate of Heenan ex rel. Heenan v.
City of Madison, No. 13-cv-606, 2015 WL 3539613, at *2 & n.2 (W.D. Wis. June 5, 2015)
(collecting cases and noting that “the court found but a handful of examples of district courts
certifying an interlocutory appeal from the denial of qualified immunity to the Seventh
Circuit as frivolous or a sham”).
The purpose of an interlocutory appeal of a decision denying qualified immunity is
limited. Such an appeal may challenge only the district court’s legal determinations
pertaining to the immunity; it is not an opportunity to ask the appellate court to decide
factual disputes or to apply the qualified immunity doctrine to disputed facts. “[A]
defendant, entitled to invoke a qualified immunity defense, 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 v. Jones, 515 U.S. 304, 319-20 (1995).
Kenny’s appeal is meritorious only if he presents a legal issue for the Seventh Circuit’s
consideration. See Weinmann v. McClone, 787 F.3d 444, 447 (7th Cir. 2015).
Kenny contends that his appeal has arguable merit because he seeks “appellate review
of the qualified immunity determination based on the fact-pattern outlined by this Court” in
its summary judgment opinion. Dkt. 260, at 2. “Kenny has been and continues to be
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prepared to have his claim for qualified immunity evaluated on the version of genuine and
supportable facts that most favors the plaintiff’s position.” Id. at 8. In Kenny’s view of the
court’s summary judgment opinion, the court determined that it is undisputed that Robinson
attacked Kenny, and the only genuinely disputed facts concern Kenny’s location when he fired
the shots. And, Kenny contends, the disputes about how far Kenny was from Robinson when
he fired are immaterial.
But Kenny misreads the court’s opinion, which held that what happened in the
stairwell between Kenny and Robinson is sharply and genuinely disputed. Dkt. 236, at 2.
The genuinely disputed facts include whether Robinson attacked Kenny at all. The court’s
determination that a fact is genuinely disputed (or not) is itself a legal conclusion, which
might properly be challenged on appeal. Weinmann, 787 F.3d at 447. But Kenny does not
argue that any of the court’s determinations regarding disputed and undisputed facts are
incorrect: Kenny says that he accepts the version of the disputed facts most favorable to
plaintiff, and he simply assumes that the fact that Robinson attacked him is undisputed. But
plaintiff has not conceded that fact. See Dkt. 149, ¶¶ 113, 118 (plaintiff disputes the facts
concerning the encounter between Kenny and Robinson).
Kenny is, of course, the only surviving eyewitness to the events in the stairwell. But
that does not compel the conclusion that Kenny’s version of those events is undisputed.
Plaintiff has adduced ample evidence that undermines Kenny’s version of events and calls his
credibility into question. Kenny’s story about what happened in the stairwell has changed: he
recanted his “snapshot” statement made immediately after the incident. Dkt. 236, at 9.
Kenny’s memory of the events is impaired: he concedes that he does not remember how he
got to the bottom of the stairs, id. at 7, and he has submitted expert evidence that trauma of
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the type he experienced may impair memory, id. at 38. The gunshot evidence and the dash
cam video undermine aspects of Kenny’s story: the distance from which he fired undermines
his claim that he was in close combat or imminent danger when he fired. Id. at 41.
“A motion for summary judgment cannot be defeated merely by an opposing party’s
incantation of lack of credibility over a movant’s supporting affidavit.” Walter v. Fiorenzo, 840
F.2d 427, 434 (7th Cir. 1988). In other words, the non-moving party cannot stave off
summary judgment merely by asserting that a witness might not stand up to crossexamination. But “specific attacks on an affiant’s credibility with regard to central issues in a
case can be sufficient to deny a motion for summary judgment.” Reich v. McManus, 883 F.
Supp. 1144, 1148 (N.D. Ill. 1995), on reconsideration (Apr. 26, 1995) (citing In the Matter of
Guglielmo, 897 F.2d 58, 63 (2d Cir. 1990)); see also Giannopoulos v. Brach & Brock Confections,
Inc., 109 F.3d 406, 411 (7th Cir. 1997) (explaining that a non-moving party cannot
withstand summary judgment “with an unadorned claim that a jury might not believe”
certain testimony; the non-moving party must point to specific evidence that would
undermine a witness’s credibility). This is not a case where Kenny’s testimony stands refuted
only by a generic contention that a jury might not believe him. Plaintiff has adduced specific
evidence that undermines Kenny’s credibility about the central issues in the case. The record
would easily allow a reasonable juror to disregard Kenny’s testimony that Robinson punched
him at the top of the stairs. Any argument to the contrary would be frivolous.
Kenny conceded that if Robinson did not attack him, then he is not entitled to
summary judgment on the merits of the Fourth Amendment claim. “[I]f 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
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he was more than three or four feet away from him on the stairwell, summary judgment is
not appropriate.” Dkt. 150, at 10. And in response to plaintiff’s motion to certify Kenny’s
interlocutory appeal as frivolous, Kenny offers no argument that he would be entitled to
qualified immunity even if Robinson had not attacked him.
The court has considered plaintiff’s motion with appropriate caution, recognizing that
the question is not whether Kenny’s appeal is meritorious, but whether it has at least
arguable merit so that the court of appeals ought to consider it before trial. The court
concludes that it does not have arguable merit, because Kenny’s appeal depends precisely on
a genuinely disputed fact. Accordingly, the court certifies that Kenny’s interlocutory appeal is
frivolous. The case will proceed to trial as scheduled, unless the court of appeals orders
otherwise.
At the final pretrial conference, the court will ask the parties whether a one-week
delay in the start of trial would accommodate plaintiff’s interest in getting the case resolved
and Kenny’s interest in seeking relief from the court of appeals.
Entered February 16, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
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