Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 07 C 4612-Wayne R. Andersen, Judge.
The opinion of the court was delivered by: Wood, Circuit Judge.
Before WOOD, EVANS, and SYKES, Circuit Judges.
Christina Jones is an employee of Commonwealth Edison ("ComEd"), which is the major electricity provider in the Chicago area. One day, while working in her job as a meter reader in Braid-wood, Illinois, she was stopped and then arrested by Officers Craig Clark and Donn Kaminski. The officers were responding to a report that a "person of color" was taking pictures of houses in Braidwood. (Jones is an African-American, and Braidwood is almost entirely white. According to the U.S. Census Bureau, Braid-wood's population in 2000 was over 97% white. See http://www.census.gov.) Jones sued the officers, alleging among things that the stop and arrest violated her Fourth Amendment rights. The defendant officers took the position that no constitutional violation had occurred because they reasonably suspected that Jones was involved in criminal activity at the time of the stop and they had probable cause to arrest her. The parties outlined their positions in cross-motions for summary judgment, and Officers Clark and Kaminski added that they were entitled to qualified immunity from suit, which allows public officials to avoid trial " 'insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' " Mitchell v. Forsyth, 472 U.S. 511, 517 (1985) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The district court concluded that factual disputes required a trial on the merits and similarly made it impossible to resolve the immunity question. In this appeal, Officers Clark and Kaminski urge that the undisputed facts entitle them to immunity. We conclude that the district court correctly saw that this case is not suitable for summary disposition, and we thus affirm.
We begin, as we must, with our jurisdiction to consider this appeal. Appellate jurisdiction is limited to "final decisions of the district courts." 28 U.S.C. 1291.
Generally, a lower court's order cannot be reviewed until all claims of all parties have been resolved. Johnson v. Jones, 515 U.S. 304, 309 (1995). The key is finality, how-ever, and there are some narrow circumstances in which finality is possible even though the primary law-suit has not yet been resolved. One such circumstance, established in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), is for "collateral orders," which are understood to be final and immediately appealable even though they issue before final judgment. An order falls within Cohen's class of collateral orders when it conclusively determines a disputed question that is separate from the merits of the case and is effectively unreviewable on an appeal from the final judgment. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978).
Mitchell v. Forsyth, 472 U.S. 511, 528-30 (1985), extended this framework to an order denying a motion for summary judgment based on a public official's claim of qualified immunity. There, the Court instructed that such an order is immediately appealable to the extent that it turns on an issue of law. Id. at 530. In some respects, it is easy to see how a summary decision denying qualified immunity fits Cohen's model. Qualified immunity is an entitlement to avoid trial (in addition to other burdens of litigation), and that represents an interest entirely independent of the underlying subject matter of the suit. Moreover, a decision denying immunity is effectively unreviewable on an appeal from the final judgment-the damage, by that time, has been done. See Mitchell, 472 U.S. at 526-27. On the other hand, the Cohen framework breaks down if there is no separation between the merits of the underlying lawsuit and the subject matter of the collateral order being appealed. The order must be separable from the primary suit; otherwise, there would be nothing final about its resolution and jurisdiction could not be supported under § 1291. The problem, as the Court has recognized, is that a great number of orders denying qualified immunity at the pretrial stage are linked closely to the merits of the plaintiff's claim. See Johnson, 515 U.S. at 311-12; Mitchell, 472 U.S. at 527-29. The order from which Officers Clark and Kaminski now seek relief is no exception.
This conundrum led the Court in Mitchell to underscore that a qualified-immunity appeal must focus exclusively on legal questions about immunity, rather than factual disputes tied up with the merits of the case. 472 U.S. at 527-30. That principle is at work in the cases that follow Mitchell. Johnson holds that a defendant denied qualified immunity at summary judgment "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." 515 U.S. at 319-20. To similar effect, Behrens v. Pelletier, 516 U.S. 299, 313 (1996), warns that "determinations of evidentiary sufficiency at summary judgment are not immediately appealable merely because they happen to arise in a qualified-immunity case[.]" Even if we think that the district court's reading of the summary judgment record is incorrect, a collateral-order appeal is not the time to resolve such a factual dispute. Via v. LaGrand, 469 F.3d 618, 623 (7th Cir. 2006). Instead, a defendant who appeals from a denial of qualified immunity must limit himself to "abstract issues of law." Johnson, 515 U.S. at 317.
The official's right to immunity turns on two questions: first, whether the facts presented, taken in the light most favorable to the plaintiff, describe a violation of a constitutional right, and second, whether the federal right at issue was clearly established at the time that the alleged violation occurred. Pearson v. Callahan, 129 S. Ct. 808, 818-22 (2009); Saucier v. Katz, 533 U.S. 194, 201 (2001). The way that the first inquiry is phrased is reminiscent of the approach to dismissals under Federal Rule of Civil Procedure 12(b)(6) or rulings on summary judgment: the reviewing court takes the record in the light most favorable to the opponent of the motion and asks whether the case can proceed. This avoids the need to resolve disputed issues of fact. The second inquiry even more obviously involves pure questions of law. The trick there is to ensure that we are evaluating the situation at the correct level of specificity. See Anderson v. Creighton, 483 U.S. 635, 639-40 (1987). When the district court denies qualified immunity at summary judgment because the plaintiff's evidence, if believed by a trier of fact, would suffice to show a constitutional violation, and the court concludes that the governing rule is well established, any appeal must be limited to the legal underpinnings of the court's ruling.
Behrens clarified that a district court's assertion that factual disputes preclude a defendant's claim of immunity does not itself deprive the court of appeals of jurisdiction. 516 U.S. at 312-13. An immediate appeal on stipulated facts may still be possible, or the defendant may concede for purposes of the appeal that the plain-tiff's version of the facts is correct, or he may accept the district court's view that there are factual disputes but take each disputed fact in the light most favorable to the plaintiff. See Viilo v. Eyre, 547 F.3d 707, 711 (7th Cir. 2008); Sain v. Wood, 512 F.3d 886, 891 (7th Cir. 2008); Sallenger v. Oakes, 473 F.3d 731, 738 (7th Cir. 2007); Knox v. Smith, 342 F.3d 651, 656 (7th Cir. 2003); Coady v. Steil, 187 F.3d 727, 730-31 (7th Cir. 1999).
In a collateral-order appeal like this one, where the defendants say that they accept the plaintiff's version of the facts, we will take them at their word and consider their legal arguments in that light. If, however, we detect a back-door effort to contest the facts, we will reject it and dismiss the appeal for want of jurisdiction. By the same token, an appeal from a denial of qualified immunity cannot be used as an early way to test the sufficiency of the evidence to reach the trier of fact. In such a case, where there really is no legal question, we will dismiss the appeal for lack of jurisdiction. See Viilo, 547 F.3d at 712; McKinney v. Duplain, 463 F.3d 679, 690 (7th Cir. 2006); Via, 469 F.3d at 623-25 & n.2.
Here, as we have already noted, the district court decided that factual disputes prevented resolution of the officers' qualified immunity claim. It said, "[A] factual dispute exists as to whether defendants Officers Clark and Kaminski had probable cause to arrest plaintiff," and it added that "the disputed facts include . . . whether Officer Clark had reasonable suspicion to stop Jones." Jones v. Clark, 2009 WL 3055366, at *5 (N.D. Ill. Sept. 21, 2009). To a large extent, these conclusions represent factual determinations that cannot be disturbed in a collateral-order appeal. Aware of this problem, the officers now insist that their appeal raises only legal questions. In their briefs, they have said that they "concede Plaintiff's version of the facts of this case" and they "have adopted the Plaintiff's version of the facts." At argument they repeated, "We're asking your honors to accept everything [Jones] says. That's what we're asking ...