Summary
certifying appeal as frivolous because it does not rest on a question of law
Summary of this case from Heenan v. City of MadisonOpinion
No. 00 C 6739
October 2, 2002
MEMORANDUM OPINION AND ORDER
Plaintiff, Jeffery J. Vladic ("Vladic"), filed a two-count complaint against two Glen Elly, Illinois police officers, James Hamann ("Hamann") and Kathy Breen ("Breen"). Vladic's Second Amended Complaint alleges that the Defendants violated 42 U.S.C. § 1983 and the United States Constitution when they falsely arrested him following an unlawful entry and scarch of the premises where he was arrested. On June 6 2002, this Court denied Defendants' Motions for Summary Judgment. Trial was scheduled to begin on September 9, 2002.
In the June 6th Memorandum Opinion and Order, this Court considered disputed accounts of the conduct of the Defendants and Stuart Rose ("Rose"), who resided at the apartment. Plaintiff contends that Rose expressly denied consent to the Defendants to enter his apartment; Defendants contend that Rose said nothing and "backed up". The Court held that this established issues of material fact whether a reasonable officer would believe that Rose consented to search his apartment. These same issues of material fact prevented a finding of qualified immunity as to Breen's argument that she was merely following orders when she entered the apartment pursuant to the purported consent.
The Plaintiff's version of the entry, including the averments that Rose told the police officers he was a law school graduate and denied entry, is set out in the Court's Memorandum Opinion and Order of June 6, 2002.
As to Plaintiff's illegal arrest claim, the Court found that the undisputed facts that no drugs or drug paraphernalia were found on Plaintiff and the absence of undisputed facts as to the proximity of Plaintiff to the drugs and drug paraphernalia or how they were discovered precluded a finding that no reasonable jury could find that the Defendants did not have probable cause to arrest Plaintiff. Defendants' qualified immunity claim was denied because issues of material fact existed whether no reasonably competent officer would have believed that there was probable cause to arrest Plaintiff based on these facts.
On July 3, 2002, Defendants filed a notice of appeal, appealing the denial of summary judgment as to their qualified immunity defense. On July 10, 2002, the Seventh Circuit ordered the Defendants to file a brief memorandum addressing why the appeal should not be dismissed for lack of jurisdiction in light of this Court's determination that disputed facts control the answer to Defendants' claim of qualified immunity.
On July 23, 2002, Defendants filed their respective Jurisdictional Memorandum with the Seventh Circuit. Defendants argue that the Seventh Circuit has jurisdiction of the appeal because the appeal is based upon the assertion that, even on the Plaintiff's version of the facts, Defendants are entitled to qualified immunity as a matter of law. In her Jurisdictional Memorandum, Breen cites several facts in support of her argument. However, Breen treats the facts as undisputed when, in fact, they are disputed. For example, Breen alleges that she entered the apartment at the direction of her supervisor — with the apparent assent of a resident of the apartment. (Emphasis added). Breen's statement ignores Plaintiff's averments that Rose informed the police officers that they did not have permission to enter the apartment. The Defendants' and Plaintiff's different accounts of the entry by the Defendants into the apartment was the basis, in part, of this Court's finding that issues of material fact existed, requiring the denial of the Defendants' Motions for Summary Judgment.
Hamann also glosses over the Plaintiff's testimony, stating that the "officers have admitted that Rose did not make a verbal statement as to consent . . ." Hamann ignores Plaintiff's contrary testimony that Rose specifically denied consent to enter the apartment.
On August 20, 2002, at a status hearing before this Court, Defendants orally indicated that they believed that this Court lacked jurisdiction to proceed to trial in light of their interlocutory appeal. At that time, the Court requested that Defendants present any jurisdictional issues in a written motion to this Court. Defendants did not file any motions raising any jurisdictional issues. instead, on August 28, 2002, Defendants filed a Motion to Stay with the Seventh Circuit.
The Seventh Circuit stayed the trial, pending either resolution of the appeal or until this Court certified that the appeal was frivolous or that the Defendants forfeited their right to stay. Subsequently, Plaintiff filed a Motion to Certify Defendants' Attempted Interlocutory Appeal as Frivolous. Plaintiff's motion is presently pending before the Court.
Plaintiff does not argue that Defendants forfeited their right to a stay. A party may forfeit its right to a stay if they wait too long after the denial of summary judgment or if they use claims of immunity in a manipulative fashion. See Apostol v. Gallion, 870 F.2d 1335, 1339 (7th Cir. 1989).
The defense of qualified immunity is considered an immunity from suit, and a district court's denial of qualified immunity is immediately appealable to the Court of Appeals. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Generally, a notice of appeal divests the district court of jurisdiction. However, a district court maintains jurisdiction and may proceed with the case, including trial, if it finds that an interlocutory appeal is frivolous. See Apostol v. Gallion, 870 F.3d 1335, 1339 (7th Cir. 1989) ( Apostol). If a claim of qualified immunity "is a sham", the notice of appeal does not transfer jurisdiction to the appellate court, and the district may proceed. See Apostol, 870 F.2d at 1339. However, this power of the district court must be used with restraint. See Apostol, 870 F.2d at 1339.
Defendants argue that the appellate court may, by looking at the uncontested facts and making a determination based on only those uncontested facts, find that the officers acted objectively reasonably thereby entitling them to qualified immunity. However, Defendants do not set out those undisputed facts. Nor is this Court able by conjecture to determine what undisputed facts the court should consider in making the determination of qualified immunity. The parties present two diametrically opposed accounts of the actions of the officers and Rose as to the issue of consent to enter the apartment. This question of consent is highly relevant to the question of whether the Defendants acted objectively reasonably and were legally inside the apartment. Accordingly, Defendants' argument that the present appeal presents only questions of law is meritless, and the present appeal must be deemed frivolous.
For the reasons stated above, Plaintiff's Motion to Certify Defendants' Attempted Interlocutory Appeal as Frivolous is granted.