In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3574
C HRISTINA JONES,
Plaintiff-Appellee,
v.
C RAIG C LARK and D ONN K AMINSKI,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 4612—Wayne R. Andersen, Judge.
A RGUED A PRIL 7, 2010—D ECIDED JANUARY 14, 2011
Before W OOD , E VANS, and SYKES, Circuit Judges.
W OOD , Circuit Judge. 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
2 No. 09-3574
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 out-
lined their positions in cross-motions for summary judg-
ment, 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 dis-
putes 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.
I
We begin, as we must, with our jurisdiction to con-
sider this appeal. Appellate jurisdiction is limited to
“final decisions of the district courts.” 28 U.S.C. § 1291.
No. 09-3574 3
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 conclu-
sively 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 rep-
resents an interest entirely independent of the under-
lying 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
4 No. 09-3574
there is no separation between the merits of the
underlying lawsuit and the subject matter of the col-
lateral 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 under-
score that a qualified-immunity appeal must focus ex-
clusively 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 “determina-
tions 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
No. 09-3574 5
defendant who appeals from a denial of qualified immu-
nity must limit himself to “abstract issues of law.”
Johnson, 515 U.S. at 317.
The official’s right to immunity turns on two ques-
tions: 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 fed-
eral 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 im-
munity does not itself deprive the court of appeals of
6 No. 09-3574
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 de-
cided 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
No. 09-3574 7
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 in this case.” These statements, we con-
clude, are enough to take the disputed facts off the table
for jurisdictional purposes. We therefore turn to the
merits of the qualified immunity defense, presenting the
facts as Jones recounts them.
II
August 16, 2005, promised to be a busy day for Jones.
She had 500 electrical meters to read for ComEd before
the end of her shift, and by 8 a.m. she was hard at work
in Braidwood. Like many ComEd meter readers, Jones
carried a pair of binoculars with her so that she could
take readings from a distance, in the event that a gate
was locked or a dog was left guarding a yard. A concerned
citizen saw Jones using her binoculars, confused her for
a construction worker photographing houses along the
street, and called the Braidwood Police.
Officers Clark and Kaminski, who were patrolling
separately, responded. Officer Clark drove straight to
8 No. 09-3574
the scene, where he found Jones walking across the
street, dressed in a hat, shirt, pants, and a reflective vest,
all emblazoned with ComEd’s logo. From his car, Officer
Clark asked Jones whether she was reading meters, and
she said that she was. Within three minutes of responding
to the 911 call, Officer Clark radioed Officer Kaminski
and his dispatcher to explain that Jones was a ComEd
worker. Thirty seconds later, Officer Kaminski radioed in.
He had stopped to talk with the person who had called
the police, and Officer Kaminski too confirmed that Jones
was reading meters.
Surprisingly, that did not end the investigation.
Officer Clark asked Jones whether she would speak
with him for a moment. Jones agreed to do so. Officer
Clark parked his car, approached Jones, and explained
that there had been a complaint. Jones gave Officer Clark
two ComEd identification cards. Each displayed the
ComEd logo and Jones’s photograph on the front; one
gave Jones’s full name and her ComEd employee
number; and the other said “FIELD IDENTIFICATION”
and “Christina A.” Jones commented that her driver’s
license was in her car, which was parked a few blocks
away. After Officer Clark explained that a resident was
concerned that someone was taking photographs of
houses, Jones realized that her binoculars must have
caused the confusion and she showed them to Officer
Clark, explaining why she used them.
Then Jones turned to walk away. Officer Clark stopped
her, asking, “What’s the rush?” Jones explained that she
was in a hurry because she had a tremendous amount of
No. 09-3574 9
work to finish before the end of the day. Officer Clark, still
unsatisfied, asked Jones for her date of birth. As the
defendants ultimately conceded at oral argument, during
the course of this exchange Jones was not free to leave.
Jones asked why Officer Clark needed the additional
information and accused him of harassing her. Then
she took a few steps away from Officer Clark, took out
her cell phone, and dialed her supervisor. Officer Clark
radioed to Officer Kaminski that Jones was refusing
to cooperate.
Moments later, Officer Kaminski arrived and saw Jones
standing with her phone to her ear, three feet away
from Officer Clark. Officer Kaminski was irate. He
screamed at Jones as he approached and demanded to
know whether she had given Officer Clark the informa-
tion he needed. Jones said that she had, and Officer
Kaminski responded, “No, you didn’t. Do you want to
go to jail?” Jones naturally said no, but it was too late.
Officer Kaminski knocked Jones’s cell phone from
her hand, pulled her arms behind her back, put her in
handcuffs, and then threw her against Officer Clark’s
police car. As Officer Kaminski patted Jones down,
Jones said, “[T]his is harassment . . . . [T]his is happening
because I am black in Braidwood.”
Officers Clark and Kaminski took Jones to the police
station for booking. Officer Kaminski continued to act
abusively toward Jones once they arrived there. At one
point, he mocked Jones’s actions and things she had
said, mimicking her voice and adding, “[Y]ou wanted to
make it racial out there . . . . [N]ow it’s racial.” Jones was
10 No. 09-3574
charged with obstructing a peace officer. She was
released on bond that day. The charge had been pending
for more than two years when it was terminated with a
directed verdict for Jones.
III
As we mentioned, Officers Clark and Kaminski are
entitled to immunity if their conduct did not violate
clearly established constitutional rights of which a rea-
sonable person would have known. Harlow, 457 U.S. at
818. The Supreme Court has broken this down into
two central questions: whether the officers violated
Jones’s constitutional rights and whether the rights they
allegedly violated were clearly established at the time
the incident occurred. We may address these questions
in any order. Pearson, 129 S. Ct. at 818-22. This case is
somewhat unusual in that there is no serious dispute
about the second question. The contours of the constitu-
tional right that the officers allegedly violated here—
the right to be free from arrest without probable cause—
were clearly established when the events in question
took place. Sornberger v. City of Knoxville, 434 F.3d 1006,
1013 (7th Cir. 2006) (citing Beck v. Ohio, 379 U.S. 89, 91
(1964)). In addition, it was well known at the time that
an officer’s decision to perform an investigatory stop
must be justified by reasonable suspicion—that is, “by
some objective manifestation that the person stopped is,
or is about to be, engaged in criminal activity.” United
States v. Cortez, 449 U.S. 411, 417 (1981). Accordingly,
the only question before us is whether, under Jones’s
No. 09-3574 11
version of the facts, Officers Clark and Kaminski
violated these clearly established rights.
A
Officer Clark did not violate the Constitution by asking
Jones what she was doing. So long as communication
between an officer and a citizen remains consensual,
the Fourth Amendment is not implicated. Florida v.
Bostick, 501 U.S. 429, 433-34 (1991); Gentry v. Sevier, 597
F.3d 838, 846-47 (7th Cir. 2010). But the officers concede
that their stop went beyond consensual questioning and
that Jones was not free to go. When an encounter shifts
from consensual dialogue to an investigatory stop, the
officer must be able to point to specific facts that give
rise to a reasonable suspicion that the person stopped is
involved in criminal activity. Terry v. Ohio, 392 U.S. 1, 30
(1968); United States v. Vega, 72 F.3d 507, 515 (7th Cir.
1995). The investigatory stop must be “justified at its
inception, and . . . reasonably related in scope to the
circumstances which justified the interference in the
first place.” Hiibel v. Sixth Judicial Dist. Court of Nevada,
542 U.S. 177, 185 (2004) (internal quotation marks omitted).
The fatal flaw in Officers Clark and Kaminski’s argu-
ment is that they cannot point to a single circumstance
that could have led them to believe that Jones was
engaged in criminal activity. See Brown v. Texas, 443
U.S. 47, 51-52 (1979). When we asked counsel for the
defendants at oral argument what crime Jones might
have committed, he responded that the officers “thought
she was casing the place.” The officers were thinking, he
12 No. 09-3574
continued, that “crooks occasionally pose as utility
workers to try and get into someone’s home.” While that
may be true, Officer Clark encountered Jones on the
street dressed top to bottom in ComEd gear; she immedi-
ately confirmed that she was reading electrical meters;
and Officer Clark relayed that information to his col-
leagues. Officer Kaminski promptly confirmed this fact
with the very resident who had placed the 911 call. Jones
also forthrightly showed Officer Clark multiple pieces
of identification from her employer and explained why
she had binoculars. None of this would lead any reason-
able person to believe that criminal activity was afoot.
Nor does any federal or state law justify the stop or
support the view that Jones was committing a crime. It
is not a crime to take pictures on the street, and it is not
an offense for a ComEd worker to read electrical meters
using binoculars. This case therefore bears no resem-
blance to one in which an officer responds to a call about
a domestic dispute and detains a person matching the
description of the perpetrator. See Hardick v. City of
Bolingbrook, 522 F.3d 758, 763 (7th Cir. 2008). Objectively
viewed, Jones’s behavior provided no basis for even a
reasonable suspicion that unlawful activity was taking
place, and so it cannot be the basis of a Terry stop. Moya
v. United States, 761 F.2d 322, 325-26 (7th Cir. 1984).
The defendants invoke the Illinois “stop and identify”
statute, 725 ILCS 5/107-14, and the Supreme Court’s
decision in Hiibel, 542 U.S. 177, but neither helps them.
Under the Illinois statute, an officer may request a
person’s name and address “when the officer reasonably
No. 09-3574 13
infers from the circumstances that the person is commit-
ting, is about to commit or has committed an offense . . . .”
725 ILCS 5/107-14. We have recognized that a person
refusing to comply with this law can be arrested for
obstructing a peace officer. Cady v. Sheahan, 467 F.3d 1057,
1063 n.8 (7th Cir. 2006). In Hiibel, the Supreme Court
held that it did not violate the Fourth Amendment for
an officer to stop a citizen, request identification, and
arrest the citizen for failing to comply with Nevada’s
stop and identify statute after the citizen refused to
identify himself. 542 U.S. at 185-89. Integral to Hiibel’s
holding, however, was that there was “no question that
the initial stop was based on reasonable suspicion.” Id. at
184. Indeed, the premise of the Illinois law, just like the
Nevada law at issue in Hiibel, is that the initial stop is
justified under Terry v. Ohio. Where an initial stop is not
based on specific, objective facts that establish rea-
sonable suspicion, Brown controls rather than Hiibel, and
the existence of a stop-and-identify statute is irrelevant.
The facts as Jones describes them demonstrate that
Officers Clark and Kaminski violated Jones’s Fourth
Amendment rights when they stopped and detained
her, and so the officers are not entitled to qualified im-
munity on that claim.
B
Jones also complains that her arrest violated the
Fourth Amendment. Here, the officers are entitled to
qualified immunity only if they had probable cause to
arrest her or if a reasonable officer in their position could
14 No. 09-3574
mistakenly have believed that probable cause existed.
Humphrey v. Staszak, 148 F.3d 719, 725 (7th Cir. 1998).
Our conclusion that the officers had no reason to be
suspicious of Jones in the first place forecloses almost
any attempt they might make to show that they had
arguable probable cause to arrest Jones. Nonetheless,
the officers claim that they had (or were reasonably
mistaken in their belief that they had) probable cause to
arrest Jones for both obstructing a peace officer, the
crime Jones was ultimately charged with, and disorderly
conduct. Probable cause depends on state criminal law,
Michigan v. DeFillippo, 443 U.S. 31, 36 (1979), and it exists
when a reasonable officer with all the knowledge of
the officers on the scene would have believed that the
suspect committed an offense defined by state law,
Wagner v. Washington County, 493 F.3d 833, 836 (7th Cir.
2007) (per curiam).
Officers Clark and Kaminski’s argument that they
had probable cause to arrest Jones for disorderly conduct
is so underdeveloped that it could be considered waived
or at least forfeited. See Spath v. Hayes Wheels Int’l-Ind.
Inc., 211 F.3d 392, 397 (7th Cir. 2000). Forfeited or not,
however, it is impossible to conclude from Jones’s
version of events that any police officer could have
thought that Jones “knowingly . . . [did] any act in such
unreasonable manner as to alarm or disturb another and
to provoke a breach of the peace,” which is the defini-
tion of disorderly conduct in Illinois. 720 ILCS 5/26-1(a).
To the contrary, Jones handled herself professionally at
every step. Even when she felt she was being harassed, her
response was to step a short distance away from Officer
No. 09-3574 15
Clark to call her supervisor. The only disorderly conduct
evident in this case came from Officers Clark and
Kaminski.
The officers’ argument that they had probable cause
to arrest Jones for obstructing a peace officer deserves
more attention, but it fails as well. A person is guilty
of obstructing a peace officer when she “knowingly
resists or obstructs the performance by one known to
the person to be a peace officer . . . of any authorized act
within his official capacity . . . .” 720 ILCS 5/31-1(a). As
we noted, after Hiibel an officer may arrest a person
for obstructing a peace officer if that person fails to
comply with the Illinois stop and arrest statute, but only
if the initial stop was justified by reasonable suspicion
of criminal activity. We have already explained why
Officers Clark and Kaminski had no reason to be suspi-
cious of Jones, and so the Illinois stop and identify
statute cannot be the source of arguable probable cause
for Jones’s arrest. Moreover, our past cases show why
actions like Jones’s do not supply probable cause to
arrest a suspect for obstructing a peace officer. See
Williams v. Jaglowski, 269 F.3d 778, 781-83 (7th Cir. 2001).
The Supreme Court of Illinois explained in People v.
Raby, 240 N.E.2d 595, 599 (1968), that the Illinois statute
prohibiting the obstruction of a peace officer does not
criminalize “mere argument with a policeman”; instead,
there must be “some physical act which imposes an
obstacle which may impede, hinder, interrupt, prevent or
delay the performance of the officer’s duties,” id. Jones’s
case is indistinguishable from the situation we con-
fronted in Williams:
16 No. 09-3574
The defendants do not point to any physical act [the
plaintiff] committed that would satisfy the require-
ment set out in Raby. Moreover . . . [the plaintiff] did
not engage in any physical act that in any way hin-
dered or impeded [the police]. Her only offense
was . . . to refuse to supply . . . her date of birth, which
would not constitute obstruction as the Illinois Su-
preme Court defined that offense in Raby.
269 F.3d at 782. On the record as it now stands, Jones’s
actions did not supply arguable probable cause to
arrest her for obstructing a peace officer. Accordingly,
Officers Clark and Kaminski are not entitled to quali-
fied immunity from Jones’s false arrest claim.
IV
The doctrine of qualified immunity draws a balance
between the desire to compensate those who have
been injured by official misconduct and the need to
protect public officials who are exercising discretion
in their day-to-day jobs. Harlow, 457 U.S. at 819. By pro-
tecting officials from the disruption that could result
from fear of liability or insubstantial lawsuits, qualified
immunity “acts to safeguard government, and thereby
to protect the public at large, not to benefit its agents.”
Wyatt v. Cole, 504 U.S. 158, 168 (1992). The need to protect
an official’s ability to carry out important duties is the
driving force behind the Supreme Court’s recognition of
qualified immunity as an entitlement to avoid trial and
its corresponding decision to make denials of qualified
immunity immediately appealable. See Mitchell, 472 U.S.
No. 09-3574 17
at 525-30. Officers Clark and Kaminski took advantage
of this framework in their appeal. Playing by the rules,
they accepted Jones’s version of events. But that version
of events (to which they will not be bound as the case
progresses) reveals nothing but a blatant and embar-
rassing abuse of police power. The district court correctly
concluded that Jones’s suit is not blocked by qualified
immunity; we therefore A FFIRM its order.
1-14-11