Appeal from the United States District Court for the Eastern District of Wisconsin. No. 04 C 867-Charles N. Clevert, Jr., Judge.
The opinion of the court was delivered by: Ripple, Circuit Judge
ARGUED SEPTEMBER 27, 2007
Before BAUER, RIPPLE and KANNE, Circuit Judges.
Terrance Jewett filed this action under 42 U.S.C. § 1983 against Officer Dale Anders, a Milwaukee police officer. He alleges that Officer Anders unlawfully arrested him and used excessive force in effectuating the arrest in violation of the Fourth Amendment, as made applicable to the states by the Fourteenth Amendment. He also alleges that Officer Anders deprived him of liberty without due process of law in violation of the Fourteenth Amendment. Officer Anders filed a motion for partial summary judgment on the unlawful arrest and deprivation of liberty claims. He also asserted qualified immunity with respect to these allegations. The district court denied his motion. Officer Anders then timely filed an interlocutory appeal in this court.
For the reasons set forth in this opinion, we reverse the judgment of the district court.
In this interlocutory appeal from a denial of qualified immunity on summary judgment, we have jurisdiction to consider only the purely legal question of whether, for purposes of Officer Anders' qualified immunity defense, a given set of facts demonstrates a violation of clearly established constitutional law. Leaf v. Shelnutt, 400 F.3d 1070, 1078 (7th Cir. 2005). Accordingly, we must rest our analysis on the facts asserted by the plaintiff, Mr. Jewett, see Knox v. Smith, 342 F.3d 651, 656 (7th Cir. 2003) (noting that, where "one side concedes the other's facts as to what happened," the qualified immunity question becomes a question of law), or assumed by the district court in its denial of summary judgment, Washington v. Haupert, 481 F.3d 543, 549 n.2 (7th Cir. 2007) (explaining that we may "take, as given, the facts that the district court assumed when it denied summary judgment" (quoting Johnson v. Jones, 515 U.S. 304, 319 (1995))); McKinney v. Duplain, 463 F.3d 679, 688 (7th Cir. 2006); Leaf, 400 F.3d at 1078-79.
On December 21, 2003, the Milwaukee Police Department was investigating an attempted homicide that had occurred the previous day. In connection with this investigation, Officer Dale Anders was ordered to meet several other officers at the Wal-Mart store on Capitol Drive and 60th Street. The officers were under instructions to apprehend Andre Thompson, who worked in the automotive department of the Wal-Mart. The Milwaukee police suspected that Thompson had been the perpetrator of the previous day's shooting; the officers had been advised that Thompson was armed.*fn1
Officer Anders and his partner, both of whom were in full police uniform, arrived at the Wal-Mart in a marked police vehicle. Officer Anders parked the squad car in a position west of the store.While in the Wal-Mart parking lot, he observed an individual peer out of a door located at the south side of the Wal-Mart building. Shortly thereafter, he observed a young black male exit the Wal-Mart through a door located on the north side of the building; this individual subsequently was identified as Terrance Jewett. This sequence of events caused Officer Anders to become suspicious. Believing that Mr. Jewett might be Thompson, Officer Anders started following him in the marked police car. As Officer Anders neared, Mr. Jewett turned and ran back toward the Wal-Mart.
Upon seeing Mr. Jewett run, Officer Anders exited his vehicle and ordered him to stop. Officer Anders claims that he identified himself as a police officer; Mr. Jewett maintains that he heard someone yelling for him to stop but that the individual did not identify himself as a police officer.
Mr. Jewett continued running until he reached the Wal-Mart door and then started to pound frantically on it.
Having caught up with Mr. Jewett, Officer Anders claims that he believed that he and his partner were in a dangerous situation. Mr. Jewett had failed to obey his commands. Moreover, the Officer believed that Mr. Jewett was Thompson and, on the basis of the earlier briefing, that he was armed. Consequently, Officer Anders sought to bring Mr. Jewett within his physical control by performing a "wall stun" on Mr. Jewett: he placed his hands against the middle of Mr. Jewett's back and pushed his chest against the door. R.26 ¶ 31. Officer Anders then put his forearms under Mr. Jewett's armpits and pulled him toward the ground. When he had Mr. Jewett face down on the ground, Officer Anders grabbed Mr. Jewett's hands, brought them behind his back and handcuffed him.
Once he had secured Mr. Jewett in handcuffs, Officer Anders conducted a search of his person. The Officer retrieved Mr. Jewett's identification from his pocket, which identified him as Terrance Jewett rather than Andre Thompson. Officer Anders placed Mr. Jewett inside the squad car. At this point, Sergeant Pamela Holmes arrived on the scene and spoke briefly with Mr. Jewett. Officer Anders confirmed Mr. Jewett's identification and issued him a municipal citation for obstructing a police officer based on Mr. Jewett's failure to obey his commands to stop.*fn2 Officer Anders then released Mr. Jewett. ...