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Friday, July 12, 2013

Ind. Decisions - 7th Circuit decides one Indiana case, a dismissal

In MIGUEL GUTIERREZ v. MICHAEL R. KERMON (SD Ind., Pratt), a 24-page opinion, Judge Tinder writes:

Miguel Gutierrez brought this action under 42 U.S.C. § 1983 against Indianapolis Metropolitan Police Officer Michael R. Kermon (and others not involved in this appeal), alleging, among other things, that Kermon trampled his fourth amendment rights by seizing him without reasonable suspicion or probable cause. Officer Kermon moved for summary judgment, arguing that he had not violated Gutierrez’s rights or, if he had, that he was nevertheless entitled to qualified immunity. The district judge concluded that Kermon had reasonable suspicion to make an investigative detention but that genuine issues of material fact precluded a finding of qualified immunity on the issue of probable cause. Officer Kermon brought this interlocutory appeal challenging the district court’s denial of qualified immunity on the issue of probable cause. Because Kermon’s argument depends on a disputed fact, we dismiss this appeal for want of jurisdiction. * * *

Here, the district court found that the issue of whether Gutierrez was swaying or walking with an unsteady gait is a genuine factual dispute in need of a jury’s attention. Officer Kermon’s unabashed reliance on that disputed fact in support of his plea for qualified immunity deprives us of jurisdiction over this interlocutory appeal. We therefore DISMISS this appeal for want of jurisdiction.

Posted by Marcia Oddi on July 12, 2013 11:18 AM
Posted to Ind. (7th Cir.) Decisions