Duran, Alejandro v. Sirgedas, Rudy

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604

Argued September 14, 2006
Decided May 1, 2007

Before

Hon. RICHARD D. CUDAHY, Circuit Judge

Hon. DANIEL A. MANION, Circuit Judge

Hon. ILANA DIAMOND ROVNER, Circuit Judge

Nos. 05-4278 & 05-4590 Appeal from the United States
District Court for the Northern
ALEJANDRO DURAN, MARIA C. District of Illinois, Eastern Division
DURAN, JAQUELIN DURAN, et al.,
Plaintiffs-Appellees, No. 01 C 6858

v. John F. Grady, Judge.

RUDY SIRGEDAS, ANTHONY
LEWANDOWSKI, THOMAS
KRATOCHVIL, et al.,
Defendants-Appellants.

ORDER

Nearly eighty plaintiffs sued the Town of Cicero and seventeen Town of
Cicero police officers for alleged injuries arising out of a September 2, 2000, incident
between the police and the plaintiffs. The district court granted summary judgment
in favor of several defendants, but denied other defendants’ motions for summary
judgment. Some of the defendants who were denied summary judgment bring this
interlocutory appeal arguing that the district court impermissibly considered
affidavits filed by the plaintiffs and that they were entitled to qualified immunity.
Nos. 05-4278 & 05-4590 Page 2

We lack jurisdiction to consider the evidentiary challenges, and affirm in part and
reverse in part on the claims of qualified immunity.

I.

On September 2, 2000, Alejandro and Maria Concepcion Duran hosted a
party to celebrate their daughter’s baptism. Guests began arriving in the late
afternoon, and by about 8:00 p.m., there were as many as seventy people at the
party. The Durans provided their guests with food and beverages, including beer
and wine, and some of the guests brought their own beer as well. Around 9:30 p.m.,
the Cicero Police Department received a telephone call complaining about the party.
Officers Waldemar Cruz and Robert DeCianni responded to the complaint. After
asking that cars be moved from the alley by the Durans’ home and the music turned
down, the officers left. A little later, the Cicero Police Department received a second
telephone complaint about the party. Officer DeCianni responded to the call from
the police dispatcher, returning to the Durans’ home.1 When Officer DeCianni

1
On appeal, the plaintiffs claim that Officer DeCianni returned to the Durans’
party on his own initiative and had not been dispatched. Before the district court,
however, the plaintiffs did not respond to the defendants’ Statement of Material
Facts. The district court therefore treated “those facts asserted in defendants’
statement of material facts that have been properly supported with evidence [as]
deemed admitted.” District Court Opinion at 12. Among other facts, the district
court concluded, based on the Statement of Material Facts, that “the Town received
a second telephone call from a neighbor of the Durans complaining about the party”
and that Officer “DeCianni responded to the call from the police radio dispatcher by
returning to the Durans’ home.” Given the plaintiffs’ failure to respond, the
plaintiffs cannot now challenge those facts. See Dade v. Sherwin-Williams Co., 128
F.3d 1135, 1140 (7th Cir. 1997). Accordingly, this opinion relies on the facts set
forth by the district court, irrespective of the plaintiffs’ challenges to those facts.
Because the district court did not consider facts the plaintiffs now attempt to insert
on appeal, we too will not consider those facts. Id.

For their part, the defendants claim that notwithstanding the plaintiffs’
failure to respond to their Statement of Material Facts, the district court “borrowed
some facts plaintiffs had raised earlier, which . . . was unfair . . . .” Appellants’
Reply Brief at 2. The defendants then assert that this court should consider only
those facts contained in their Statement of Material Facts, and not any additional
facts set forth by the district court. However, on interlocutory appeal, this court
(continued...)
Nos. 05-4278 & 05-4590 Page 3

arrived the second time, there were about eighty or ninety people at the party.
“[P]eople in the front yard began arguing with” Officer Decianni. District Court
Opinion at 3. “Alejandro Duran argued that the music was not too loud and stated
that he had a right to have guests at his house.” District Court Opinion at 3.
Officer DeCianni radioed the dispatcher and requested assistance from additional
officers, stating that the homeowner was being uncooperative.

Officer Michael McMahon arrived as back-up and he also became involved in
arguments with the partygoers. Officer DeCianni again radioed the dispatcher,
asking for the department to send a supervisor and other officers because people
were “getting unruly.” District Court Opinion at 3. Several other officers arrived
and more verbal confrontations occurred between the officers and party guests. The
district court noted that “[t]here [was] no dispute that there was shouting and use
of profanities by both the officers and the party guests; however, it is disputed
whether the officers or the party guests were the aggressors.” District Court
Opinion at 3 - 4.

As the situation escalated, the officers called for more and more
reinforcements. The entire on-duty City of Cicero Police Department was
dispatched to the disturbance. Dispatch also requested back-up support from the
City of Chicago and another nearby city. The officers on the scene directed the party
guests into the house, and some of the officers sprayed various partygoers with
pepper spray. After additional officers arrived and police obtained control of the
situation, the officers arrested seven of the plaintiffs: Alejandro Duran, Armando
Duran, Adolfo Duran, Gonzalo Duran, Joel Uribe, Heriberto Uribe, and Juan Carlos
Uribe.

Juan Carlos Uribe was later released, apparently without being charged,
while a misdemeanor complaint was signed against Heriberto Uribe and Joel Uribe
for obstructing a peace officer, although those charges were not prosecuted.
However, the four Durans were prosecuted on charges of battery and obstructing or
resisting a peace officer. Following a jury trial, the Durans were found not guilty.

The Durans, along with approximately seventy other plaintiffs, filed suit
against seventeen Town of Cicero police officers and the Town of Cicero, alleging

(...continued)
lacks jurisdiction to second-guess the district court’s assessment of the record. See
Johnson v. Jones, 515 U.S. 304, 319-20 (1995). Therefore, the facts set forth in this
opinion come from the district court’s reading of the record.
Nos. 05-4278 & 05-4590 Page 4

numerous constitutional claims. The defendants filed several motions for summary
judgment. The district court granted summary judgment in favor of several of the
defendants, but denied other defendants’ motions for summary judgment. Some of
the defendants whose motions for summary judgment were denied filed this
interlocutory appeal, claiming they are entitled to qualified immunity. Additional
details relevant to the individual claims against the appealing defendants follow.

II.

As noted, some of the defendants who were denied qualified immunity filed
this interlocutory appeal.2 While generally this court lacks jurisdiction under 28
U.S.C. § 1291 to review a district court’s denial of summary judgment, “an exception
to this rule comes into play when a movant requests summary judgment based on
qualified immunity.” Jones v. Wilhelm, 425 F.3d 455, 466 (7th Cir. 2005). “Under
the collateral order doctrine the district court’s denial of [a] motion for summary
judgment based on qualified immunity is an immediately appealable ‘final decision’
within the meaning of 28 U.S.C. § 1291 to the extent that it turns on legal rather
than factual questions.” Wernsing v. Thompson, 423 F.3d 732, 741 (7th Cir. 2005).
However, a defendant “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.” Johnson, 515 U.S. at 319-20.

In this appeal, the defendants seek to challenge both legal and factual
conclusions reached by the district court. We lack jurisdiction to review the latter
challenges interlocutorily, but may consider legal challenges to the district court’s
denial of qualified immunity. Leaf v. Shelnutt, 400 F.3d 1070, 1078 (7th Cir. 2005).
For each claim appealed, because of the important distinction between legal
challenges and challenges to the district court’s factual conclusions for purposes of
this court’s jurisdiction, we elaborate in detail on the type of challenge presented by
the defendants.

A. Claims by individuals pepper sprayed inside the Duran house against Officers
DeCianni and Peslak.

2
The defendants’ Notice of Appeal was filed on behalf of all but one of the
defendants, and against all of the plaintiffs. However, in their opening brief, the
defendants state that “[o]n reflection, they have limited the claims as specified in
the particular arguments.” Appellant Brief at 3. Accordingly, this opinion
discusses only the specific claims challenged in this interlocutory appeal.
Nos. 05-4278 & 05-4590 Page 5

The first issue on appeal involves identical claims brought by thirty-four
plaintiffs who claim that while they were inside the Duran house, Officers Robert
DeCianni and William Peslak sprayed pepper spray inside the house, causing them
to suffer ill effects in violation of their Fourth Amendment rights.3 Before analyzing
the legal issues at play, we initially summarize the factual conclusions the district
court found the record could reasonably support.

In denying Officers DeCianni and Peslak qualified immunity on these claims,
the district court determined that the pretrial record supported the conclusion that
some of these thirty-four plaintiffs “were ordered or forced inside the house,” and
“that everyone who was inside the house was instructed to stay in the house.” The
district court also concluded that the pretrial record set forth a genuine issue of fact
about whether Officers DeCianni and Peslak sprayed pepper spray into the back
door of the Duran house. Additionally, the district court noted that “[a] reasonable
jury could conclude from the evidence that the spraying was for the purpose of
keeping the plaintiffs at bay inside the house.” Alternatively, the district court
stated that “[a]nother conclusion could be that it was a deliberate action intended to
cause harm; . . . .” Further, the district court found that “the facts could support a
finding that defendants used plainly excessive force by assaulting plaintiffs with
pepper spray without justification (when those plaintiffs were confined in the house
and not provoking the officers).” These were the district court’s conclusions as to
the facts the record could reasonably support and as to what genuine issues of fact
existed. Under Johnson, this court lacks jurisdiction to review those conclusions on
interlocutory appeal. Johnson, 515 U.S. at 319-20.

Nonetheless, on appeal, Officer Peslak seeks to challenge the district court’s
ruling that the record supported the conclusion that he sprayed pepper spray inside
the house. Specifically, Officer Peslak claims that the district court improperly
relied on an affidavit filed by Maria Alicia Moreno. In her affidavit, Moreno
attested to seeing Officer Peslak “open the door that enters on the kitchen and
spray mace into the kitchen.”4 District Court Opinion at 18. Officer Peslak claims

3
Technically, of course, this is a Fourteenth Amendment claim, as the
Fourth Amendment “was incorporated against the states by the Fourteenth
Amendment’s Due Process Clause.” Contreras v. City of Chicago, 119 F.3d 1286,
1290 (7th Cir. 1997). For simplicity, though, we refer to the defendants’ claims
alleging unreasonable seizures as Fourth Amendment claims.
4
Another plaintiff testified to seeing Officer DeCianni spray pepper spray in
(continued...)
Nos. 05-4278 & 05-4590 Page 6

that the district court should have stricken this affidavit because it contradicted the
previous testimony Moreno gave in her deposition. Officer Peslak maintains that
under Johnson, 515 U.S. at 319-20, this court has jurisdiction to analyze an
affidavit to determine if it was properly considered by the district court.

In McKinney v. Duplain, 463 F.3d 679 (7th Cir. 2006), this court rejected a
similar attempt to side-step the mandate of Johnson. In McKinney, the estate of
Michael McKinney sued Officer Duplain, alleging Officer Duplain violated
McKinney’s constitutional rights by using excessive force. In responding to a 911
burglary-in-progress call, Officer Duplain had shot and killed McKinney. Id. at
681-82. Officer Duplain argued that he was entitled to summary judgment because
the undisputed facts established that McKinney had charged him and that
therefore he was justified in shooting McKinney. Id. at 684. The district court
rejected Officer Duplain’s argument, concluding that the testimony presented by
McKinney’s experts created a factual issue as to whether McKinney had charged
Officer Duplain. Id. at 689. On appeal, this court noted that there were several
problems with the proffered expert opinions, but held that under Johnson, this
court lacked jurisdiction to consider a Daubert challenge. Id. at 691-92.
Specifically, we explained that

given the mandate of Johnson, we lack jurisdiction to conduct such a review
of the record. As Johnson made clear, a defendant “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.”

Id. at 690 (quoting Johnson, 515 U.S. at 319-20). We then explained that that was
exactly what Officer Duplain sought to do: “Officer Duplain maintains that the
record does not support the district court’s conclusion that a genuine issue of fact
exists as to whether McKinney charged Officer Duplain, because the only evidence
that supports the view that McKinney did not charge comes from the inadmissible
opinions of the proffered experts. . . .” McKinney, 463 F.3d at 690. Accordingly, in
McKinney, we held that “notwithstanding the numerous problems with the
proffered experts’ opinions that Officer Duplain identifies, we must dismiss Officer
Duplain’s appeal for lack of jurisdiction.” Id. at 691. Similarly, under Johnson, we
lack jurisdiction in this case to review the challenge to Moreno’s affidavit, as such a
challenge is, in essence, an attack on the district court’s conclusion as to whether or

4
(...continued)
the house. Thus, only Officer Peslak challenges the district court’s reliance on
Moreno’s affidavit.
Nos. 05-4278 & 05-4590 Page 7

not the pretrial record sets forth a “genuine” issue of fact for trial. Johnson, 515
U.S. at 319-20.

Although this court lacks jurisdiction under Johnson to assess the district
court’s review of the factual record, Officers DeCianni and Peslak also present a
legal challenge to the district court’s decision, namely they challenge the district
court’s legal conclusion that the facts, as found to exist by the district court, violate
clearly established constitutional norms. We have jurisdiction to review this purely
legal question. See Leaf, 400 F.3d at 1078. See also Via v. LaGrand, 469 F.3d 618,
623 n.2 (7th Cir. 2006) (“[I]f the defendant argues on appeal that he is entitled to
qualified immunity no matter how the genuine issue of material fact is resolved, we
would have jurisdiction to consider that purely legal question.”)

First, Officers DeCianni and Peslak challenge the district court’s legal
conclusion that the thirty-four plaintiffs located in the Duran house were “seized”
for purposes of the Fourth Amendment, claiming instead that the plaintiffs’ claims
fall under the Fourteenth Amendment’s “shock the conscience” standard. A seizure
for purposes of the Fourth Amendment can occur when an officer “by means of
physical force or show of authority has in some way restrained the liberty of a
citizen.” United States v. Mendenhall, 446 U.S. 544, 552 (1980) (internal quote
omitted). See Graham v. Connor, 490 U.S. 386, 395 n.10 (1989) (“A ‘seizure’
triggering the Fourth Amendment’s protections occurs only when government
actors have, by means of physical force or show of authority, . . . in some way
restrained the liberty of a citizen.”) (internal quotation omitted). A person is
“seized” under the Fourth Amendment “if, in view of all of the circumstances
surrounding the incident, a reasonable person would have believed that he was not
free to leave.” Mendenhall, 446 U.S. at 554. The Mendenhall court further
explained the circumstances that might indicate a seizure:

[E]ven where the person did not attempt to leave, . . . [for instance] the
threatening presence of several officers, the display of a weapon by an officer,
some physical touching of the person of the citizen, or the use of language or
tone of voice indicating that compliance with the officer’s request might be
compelled.

Id. at 554.

Based on the facts, as found to exist by the district court, we agree that a
reasonable jury could conclude that the thirty-four plaintiffs were “seized” for
purposes of the Fourth Amendment. As the district court explained, when the
officers arrived they told several of the plaintiffs to “get inside the house” and “get
Nos. 05-4278 & 05-4590 Page 8

the f[–] inside.” District Court Opinion at 23. Additionally, “[a]t the time, there
were numerous police officers in the yard, outside the yard, alongside the house,
and entering and exiting the house.” District Court Opinion at 23. Moreover, the
district court concluded that “[a] reasonable jury could conclude from the evidence
that the spraying was for the purpose of keeping the plaintiffs at bay inside the
house.” District Court Opinion at 26. Based on this view of the facts, a jury could
reasonably conclude that the individuals inside the house were seized.

Officers DeCianni and Peslak respond that some of the plaintiffs were
already inside the house and may not have wanted to leave. However, the district
court concluded that “there is evidence that everyone who was inside the house was
instructed to stay in the house, . . . [and] [t]he plaintiffs who had already been in
the house likely could hear what was going on outside and could see what was
happening with the plaintiffs who were ordered inside.” District Court Opinion at
24-25. We agree with the district court in its conclusion that based on this view of
the facts “a reasonable person in the plaintiff’s shoes would not have believed that
he or she was free to leave the house.” District Court Opinion at 25.

Officers DeCianni and Peslak counter that “trying to get partygoers to go
inside the Duran house, their own houses, or across the street and away from the
scene was a sensible safety precaution in the midst of a riot, not a seizure. Police
were trying to control the crowds so they would not be running back and forth,
getting involved, getting hurt.” Appellant Brief at 20. We agree that it was
eminently reasonable for the officers, when confronted with an escalating encounter
with some seventy to ninety individuals, to try to disperse and control the crowd by
ordering partygoers inside. However, that merely goes to the reasonableness of the
seizure, not the initial question of whether Officers DeCianni and Peslak seized the
thirty-four plaintiffs ordered to stay in the Duran house. Had the plaintiffs’ only
claim been that the officers violated their Fourth Amendment rights by restraining
them inside the Duran house, under the facts of this case, as set forth by the district
court, there would be no constitutional violation.

The facts, though, as found to exist by the district court, went further: The
district court concluded that the “facts could support a finding that defendants used
plainly excessive force by assaulting plaintiffs with pepper spray without
justification (when those plaintiffs were confined in the house and not provoking the
officers).” Thus, the reasonableness of directing and holding partygoers inside the
house is not the issue; rather, the issue is whether, in seizing the plaintiffs inside
the house, Officers DeCianni and Peslak used excessive force by spraying pepper
spray into the house.
Nos. 05-4278 & 05-4590 Page 9

Use of excessive force by police officers during a seizure constitutes a Fourth
Amendment violation that is actionable under § 1983. Clash v. Beatty, 77 F.3d 1045,
1047 (7th Cir. 1996) (citing Graham v. Connor, 490 U.S. 386, 394 (1989)). More
specifically, as the Supreme Court explained in Graham, if “as here, the excessive
force claim arises in the context of an arrest or investigatory stop of a free citizen, it
is most properly characterized as one invoking the protections of the Fourth
Amendment, which guarantees citizens the right ‘to be secure in their persons . . .
against unreasonable . . . seizures.’” Graham, 490 U.S. at 394. In such a
circumstance, the question is whether a reasonable officer in the same
circumstances would have concluded that a threat existed justifying the particular
use of force. Graham, 490 U.S. at 396-97.

The officers respond that even if the plaintiffs were seized for purposes of the
Fourth Amendment, they are still entitled to qualified immunity on the excessive
force claim. “To evaluate a claim of qualified immunity, we engage in a two-step
analysis. First, we determine whether the plaintiffs’ claim states a violation of
their constitutional rights. Then, we determine whether those rights were clearly
established at the time the violation occurred.” Jacobs v. City of Chicago, 215 F.3d
758, 766 (7th Cir. 2000). Unless the plaintiffs prove both prongs, the defendants
are entitled to qualified immunity. Id.

In arguing that they are entitled to qualified immunity, the officers maintain
that the plaintiffs failed to establish a constitutional violation because none of the
plaintiffs claimed to be a target of the pepper spray. However, contrary to the
officers’ argument, the thirty-four plaintiffs claim that they were all targets of the
pepper spray. In any event, if a police officer intends to inflict injury, without
justification, the fact that the officer intentionally targets a large group of
individuals, as opposed to a specific individual, is irrelevant.5 Of course, that might
not be what happened here, as under one reading of the facts, the officers only
intended to spray individuals who were attempting to leave the house after the
officers ordered them indoors. See District Court Opinion at 26 (“A reasonable jury

5
This case differs from the situation where an innocent bystander is
unintentionally injured as a result of an officer’s alleged excessive force. See Bublitz
v. Cottey, 327 F.3d 485, 489 (7th Cir. 2003) (rejecting a transferred intent theory to
liability under § 1983 and holding that because the plaintiffs were “simply not the
intended object of the defendant officers’ attempts to seize the fleeing [suspect] . . .
the Fourth Amendment is not implicated and cannot provide the basis for a § 1983
claim”). Here, instead, all of the individuals in the house claim they were targeted.
Nos. 05-4278 & 05-4590 Page 10

could conclude from the evidence that the spraying was for the purpose of keeping
the plaintiffs at bay inside the house.”). Given the need for the police to control the
increasingly dangerous situation, a reasonable officer could believe it reasonable to
use pepper spray to detain inside the house individuals refusing to obey a lawful
order. Thus, if it were undisputed that Officers DeCianni and Peslak had sprayed
only the individuals attempting to exit the house after they were directed to remain
inside, these officers would be entitled to qualified immunity, even if the spray
caused discomfort to others.6 See Bublitz, 327 F.3d at 489-91; cf. Clement v. Gomez,
298 F.3d 898, 903-04 (9th Cir. 2002) (holding that officers who sprayed pepper
spray into a cell to stop a fight between two inmates did not violate the Eighth
Amendment rights of other inmates who were allegedly injured by the pepper
spray).

As noted above, however, in this case, the district court concluded that the
“facts could support a finding that defendants used plainly excessive force by
assaulting plaintiffs with pepper spray without justification (when those plaintiffs
were confined in the house and not provoking the officers).” District Court Opinion
at 28. Assaulting citizens who are safely detained without any provocation violates
clearly established constitutional principles. See Clash, 77 F.3d at 1048 (stating
that “police officers do not have the right to shove, push, or otherwise assault
innocent citizens without any provocation whatsoever”); see also Payne v. Pauley,
337 F.3d 767, 780 (7th Cir. 2003) (holding that in 1998, it was clearly established
that “it was unlawful to use excessively tight handcuffs and violently yank the arms
of arrestees who were not resisting arrest, did not disobey the orders of a police
officer, did not pose a threat to the safety of the officer or others, and were
suspected of committing only minor crimes”).

Alternatively, Officers DeCianni and Peslak argue that they are entitled to
qualified immunity because none of the plaintiffs “claim to have been by the rear
door when either of these officers allegedly sprayed.” Whether the plaintiffs were
near the rear door, however, is irrelevant if the officers acted unreasonably in
spraying the pepper spray at the individuals inside the house and the plaintiffs
were injured by the pepper spray. It may well be that many of the plaintiffs did not

6
The district court also noted that several of the defendants who were inside the
house testified that pepper spray was sprayed under the back door. District Court
Opinion at 24. However, the district court did not find that the record evidence
supported the conclusion that Officers DeCianni and Peslak were the ones who
sprayed the pepper spray under the closed door. Therefore, for purposes of the
claims against Officers DeCianni and Peslak, that testimony is irrelevant.
Nos. 05-4278 & 05-4590 Page 11

suffer ill effects from the pepper spray, given that pepper spray may have a limited
dispersal range. However, we lack jurisdiction to review the record to determine
whether the thirty-four plaintiffs presented evidence that they were injured by the
pepper spray being discharged within the house because the district court concluded
that the evidence could support a finding that those plaintiffs were assaulted with
pepper spray. See Johnson, 515 U.S. at 319-20.

In conclusion, under the district court’s reading of the factual record, Officers
DeCianni and Peslak are not entitled to qualified immunity. Therefore, at this
stage, we must affirm the district court’s denial of summary judgment to defendants
DeCianni and Peslak on the claims brought by the thirty-four plaintiffs for injuries
allegedly caused by Officers DeCianni and Peslak spraying pepper spray into the
house.

Before considering the other issues on appeal, we pause to highlight that the
principles set forth above apply equally to the remaining claims. Specifically, under
Johnson, we lack jurisdiction to review the record to determine whether the genuine
issues of fact found to exist by the district court in fact exist. We also lack
jurisdiction to consider the defendants’ challenges to the district court’s evidentiary
rulings and consideration of later-filed affidavits. Rather, we may only consider the
legal question of whether the facts, as found to exist by the district court, could
violate clearly established constitutional norms. Because numerous plaintiffs
present distinct claims against multiple defendants, implicating different factual
findings by the district court, we discuss the claims, for the most part, individually,
even though the same law governs. While this results in some redundancy, given
the complexity of this case, for clarity purposes, we prefer to err on the side of
repetitiveness.

B. Arrest of Gonzalo Duran

Next, we consider Gonzalo Duran’s claims arising from his arrest. First,
Gonzalo alleged false arrest claims against Sergeant Krummick and Officers
Vitalo, Peslak and DeCianni. Second, Gonzalo claims that Sergeant Krummick and
Officers Sirgedas, Vitalo, Peslak and DeCianni used excessive force in arresting
him. The defendants respond that they had probable cause to arrest Gonzalo and
that they only used as much force as necessary to effectuate the arrest, and
accordingly were entitled to qualified immunity. We consider the false arrest and
excessive force claims in turn.

1. False Arrest
Nos. 05-4278 & 05-4590 Page 12

Gonzalo sued defendants Krummick, Vitalo, Peslak, and DeCianni for false
arrest under § 1983. To establish a constitutional claim for false arrest under §
1983, Gonzalo must prove that the defendants arrested him without probable cause.
Williams v. Jaglowski, 269 F.3d 778, 781 (7th Cir. 2001). However, even if the
defendants arrested Gonzalo without probable cause, “[i]f the officers can establish
that they had ‘arguable probable cause’ to arrest the plaintiff, then the officers are
entitled to qualified immunity. . . .” Id. In other words, a defendant is entitled to
qualified immunity on a false arrest claim if “a reasonable police officer in the same
circumstances and with the same knowledge . . . as the officer in question could
have reasonably believed that probable cause existed in light of well-established
law.” Humphrey v. Staszak, 148 F.3d 719, 725 (7th Cir. 1998) (emphasis in original)
(internal citations omitted).

a. Sergeant Krummick

In summarizing the facts relating to Sergeant Krummick, the district court
stated that Sergeant Krummick claimed that he “was told that Gonzalo Duran had
thrown a bottle or can at [DeCianni] and that [DeCianni] wanted him arrested.”
District Court Opinion at 70. The district court also stated that “Gonzalo denies
that he threw a bottle or can at DeCianni. He also denies that DeCianni ever
claimed at the time that he was struck by a bottle or can; rather, he states that
DeCianni merely told Krummick that the music was too loud.” District Court
Opinion at 70. The district court then concluded that “there are factual issues
involved in the reasonableness determination on the false arrest claim,” and that
therefore “Krummick’s motion for summary judgment is denied as to Gonzalo
Duran’s false arrest claim. . . .” District Court Opinion at 71.

As explained above, this court lacks jurisdiction to review the record to
determine whether the district court’s view of the facts is adequately supported by
the record evidence. See supra at 4. However, this court has jurisdiction to address
the legal question of whether the facts, as set forth by the district court, violate
clearly established constitutional norms. See supra at 6. In this case, as the
district court explained, there are some factual disputes, namely whether Gonzalo
threw a bottle or can at Officer DeCianni and whether Officer DeCianni told
Sergeant Krummick that Gonzalo had thrown a bottle or can at him, or merely told
him the music was too loud. These factual disputes are immaterial, though,
because Gonzalo (at least based on the facts set forth by the district court) did not
challenge Sergeant Krummick’s claim that Officer DeCianni told him that he
wanted Gonzalo arrested. An officer may reasonably rely on information provided
by other officers. Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000). Thus,
“[t]he police who actually make the arrest need not personally know all the facts
Nos. 05-4278 & 05-4590 Page 13

that constitute probable cause if they reasonably are acting at the direction of
another officer or police agency. United States v. Parra, 402 F.3d 752, 764 (7th Cir.
2005) (quoting Tangwall v. Stuckey, 135 F.3d 510, 517 (7th Cir.1998). Under those
circumstances, an “arrest is proper so long as the knowledge of the officer directing
the arrest, or the collective knowledge of the agency he works for, is sufficient to
constitute probable cause.” Parra, 402 F.3d at 764 (quoting Tangwall, 135 F.3d at
517. In this case there are factual disputes that prevent us from determining
whether probable cause supported Officer DeCianni’s directive to arrest Gonzalo.
Nevertheless, “where a police officer makes an arrest on the basis of oral
statements by fellow officers, an officer will be entitled to qualified immunity from
liability in a civil rights suit for unlawful arrest provided it was objectively
reasonable for him to believe, on the basis of the statements, that probable cause for
the arrest existed.” Rogers v. Powell, 120 F.3d 446, 455 (3d Cir. 1997). Under the
circumstances of this case, we conclude that it was objectively reasonable for
Sergeant Krummick to rely on Officer DeCianni’s statement as a basis for believing
probable cause existed to arrest Gonzalo. In other circumstances it might be
appropriate for an officer to first obtain additional information regarding the basis
for the arrest. But here Sergeant Krummick had no time to reflect. He was part of a
group of reinforcing officers who had just been dispatched to the already chaotic
scene. The officers were still mostly outnumbered by the partygoers, and the
situation was apparently escalating. Under these circumstances, Sergeant
Krummick could reasonably rely on Officer DeCianni’s statement that he wanted
Gonzalo arrested as a basis for that arrest. Accordingly, Sergeant Krummick was
entitled to qualified immunity. Therefore, we reverse the district court’s denial of
summary judgment to Sergeant Krummick on the false arrest claim brought by
Gonzalo.

b. Officer Vitalo

As to Gonzalo’s false arrest claim against Officer Vitalo, the district court
noted that Officer Vitalo claimed that “[t]he evidence is unrebutted that he was told
that Gonzalo Duran threw a can or bottle that hit Officer DeCianni.” However, the
district court found that an issue of fact existed because Gonzalo denies that Officer
“DeCianni ever claimed at the time that he was struck by a bottle or can; rather he
states that DeCianni merely told Krummick that the music was too loud.” District
Court Opinion at 76 - 77. In its summary of the facts, though, the district court also
noted that Officer Sirgedas stated that after he “arrived at the Durans’ home, he
heard Officer DeCianni tell Officer Vitalo that Gonzalo Duran had to be arrested.”
District Court Opinion at 37. As with the case of Sergeant Krummick, even if
Officer DeCianni had not told Officer Vitalo that Gonzalo had thrown an object at
him, under the limited circumstances of this case, Officer Vitalo could reasonably
Nos. 05-4278 & 05-4590 Page 14

rely on Officer DeCianni’s statement that he wanted Gonzalo arrested, as a basis to
arrest Gonzalo. Officer Vitalo did not have the luxury of time to obtain a full
briefing on the details; he had to act on what he knew at the time, and that included
dispatch calls for back-up because of problems with the homeowners. Under those
circumstances, a reasonable officer could believe there was probable cause to arrest
Gonzalo and, accordingly, Officer Vitalo was entitled to qualified immunity.
Therefore, we reverse the district court’s denial of summary judgment to defendant
Officer Vitalo on Gonzalo’s false arrest claim.

c. Officer Peslak

Officer Peslak similarly argued to the district court that he was entitled to
qualified immunity because “his involvement in the arrest was simply to help fellow
officers of whom he had no reason to suspect they [sic] were not entitled to arrest
someone.” District Court Opinion at 87 (quoting Peslak’s memorandum at 11). The
district court rejected this argument concluding that “Peslak points to no particular
evidence in support of his argument.” District Court Opinion at 87. From this
statement, it appears that the district court rejected Officer Peslak’s motion based
on his failure to properly cite to the record. A district court may deny a motion for
summary judgment because the movant did not provide record support for his
motion. However, in this case it would be a waste of judicial resources to allow
Gonzalo’s claim against Officer Peslak to proceed because the facts, as set forth by
the district court in other portions of its opinion, support Officer Peslak’s claim of
qualified immunity. Specifically, the facts as summarized by the district court
showed that Officer Peslak was not present at the scene when the initial dispute
between Officer DeCianni and the partygoers broke out, but rather that Officer
Peslak arrived in response to a call for back-up support. By the time Officer Peslak
arrived there were some eighty or ninety people at the party, and there were
several verbal confrontations occurring between the officers and partygoers.
Additionally, the district court noted that the record showed that Officer DeCianni
told at least two other officers that he wanted Gonzalo arrested. Even if Officer
DeCianni did not direct Officer Peslak to arrest Gonzalo, a reasonable officer
witnessing the scene and seeing other officers move to arrest Gonzalo could believe
that those officers were acting on probable cause, and assist in effectuating the
arrest. Although the other officers may not have expressly told Officer Peslak that
probable cause existed, their conduct implied as much. Under those circumstances,
a reasonable officer could believe there was probable cause to arrest Gonzalo, and
accordingly Officer Peslak was entitled to qualified immunity. Cf. Rogers, 120 F.3d
at 455. Therefore, we reverse the district court’s denial of summary judgment to
Officer Peslak on Gonzalo’s false arrest claim.
Nos. 05-4278 & 05-4590 Page 15

d. Officer DeCianni

Officer DeCianni also claims that he is entitled to qualified immunity on
Gonzalo’s false arrest claim. Because Gonzalo claims he did not throw a beer can or
bottle at Officer DeCianni, as Officer DeCianni claimed, a factual dispute exists as
to whether Officer DeCianni had probable cause for arresting Gonzalo on that basis.
Officer DeCianni, however, argues that he is nonetheless entitled to qualified
immunity because he “could have legally arrested Gonzalo for failing to shut down
the party (which was Gonzalo’s understanding as to why he was being arrested) and
causing a disturbance; he could also have arrested him for resisting a lawful police
order.” Appellant Brief at 31.

“Whether an officer has probable cause to arrest depends on the
requirements of the applicable state criminal law.” Pourghoraishi v. Flying J, Inc.,
449 F.3d 751, 761 (7th Cir. 2006). In his brief on appeal, Officer DeCianni did not
cite to the relevant Illinois statutory provisions that he claims justified his arrest of
Gonzalo. Officer DeCianni also did not identify the state law requirements
necessary to justify Gonzalo’s arrest on the proposed alternative grounds. Officer
DeCianni’s failure to develop this argument constitutes a forfeiture of those
arguments on appeal. J. S. Sweet Co., Inc., v. Sika Chem. Corp., 400 F.3d 1028,
1035 n.2 (7th Cir. 2005). Accordingly, we affirm the district court’s denial of
summary judgment to Officer DeCianni on Gonzalo’s false arrest claim.

2. Excessive Force

Gonzalo also claims that Sergeant Krummick and Officers Sirgedas, Vitalo,
Peslak, and DeCianni used excessive force in arresting him. As the Supreme Court
held in Graham, 490 U.S. at 396, “the right to make an arrest or investigatory stop
necessarily carries with it the right to use some degree of physical coercion or threat
thereof to effect it,” but the Fourth Amendment prohibits the use of excessive force
during the execution of a seizure. Id. at 396. “In order to decide whether the
amount of force used during a seizure is ‘excessive,’ we examine the totality of the
circumstances to determine whether the intrusion on the citizen’s Fourth
Amendment interests was justified by the countervailing government interests at
stake.” Jacobs v. City of Chicago, 215 F.3d 758, 773 (7th Cir. 2000). Specifically, we
consider factors such as “the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest by flight.” Id. Additionally,
we “consider whether the citizen was under arrest or suspected of committing a
crime, was armed, or was interfering or attempting to interfere with the officer's
execution of his or her duties.” Id. In the final analysis, the excessive force inquiry
Nos. 05-4278 & 05-4590 Page 16

“looks to whether the force used to seize the suspect was excessive in relation to the
danger he posed—to the community or to the arresting officers—if left unattended.”
Id. (internal quotation omitted).

To determine whether Sergeant Krummick and Officers Sirgedas, Vitalo,
Peslak and DeCianni used excessive force, we must first summarize the factual
conclusions the district court found the record could reasonably support. In denying
the defendants qualified immunity on Gonzalo’s claim of excessive force, the district
court summarized the record evidence, noting that Officer Sirgedas stated that after
he “arrived at the Durans’ home, he heard Officer DeCianni tell Officer Vitalo that
Gonzalo Duran had to be arrested.” The district court stated that it was difficult to
tell exactly what Officer Sirgedas saw or did next, but that when Officer Vitalo
“attempted to place Gonzalo Duran into custody,” Gonzalo “got on top of Officer
Vitalo and started kicking him, punching him.” District Court Opinion at 38.
Officer Sirgedas then tried to help Officer Vitalo by hitting Gonzalo’s leg once with
his asp (i.e., baton) and by punching Gonzalo once in the head with a closed fist
before handcuffing Gonzalo.

The district court also summarized Gonzalo’s version of the events, first
noting that “at his criminal trial, Gonzalo admitted that he was aware that certain
officers wanted to arrest him and that he ‘walked fast’ into the back yard [sic] to get
away from them.” District Court Opinion at 38. Gonzalo also “admitted that he
struggled with two officers (apparently Vitalo and DeCianni), but he denies that he
bit Vitalo and denies that he hit or kicked Vitalo.” District Court Opinion at 38.
Gonzalo, however, admits that he bit DeCianni but claims he did so because
DeCianni was choking him and he could not breathe. District Court Opinion at 38.
The district court also stated that “Gonzalo does not admit that he resisted arrest to
the extent described by the officers involved . . . .” District Court Opinion at 39. As
explained at length above, at the interlocutory appeal stage, we must accept the
facts as found to exist by the district court. See Johnson, 515 U.S. 319-20; see supra
at 4.

Against this factual backdrop, then, we consider the legal question of
whether the defendants sued by Gonzalo for excessive force are entitled to qualified
immunity. As noted above, a defendant is entitled to qualified immunity “even if
we conclude that the defendant’s alleged actions were improper to the point of being
unconstitutional, . . . unless the unconstitutionality of the actions was clearly
established at the time of their occurrence.” Board v. Farnham, 394 F.3d 469, 477
(7th Cir. 2005).

a. Defendant Officer Sirgedas
Nos. 05-4278 & 05-4590 Page 17

As to defendant Officer Sirgedas, the district court concluded that “[t]he
nature of Sirgedas’ use of force—in particular his admitted punching of Gonzalo in
the head with a closed fist—requires a jury determination of reasonableness.”
District Court Opinion at 40. However, as this court explained in Bell v. Irwin, 321
F.3d 637, 640 (7th Cir. 2003) “when material facts (or enough of them to justify the
conduct objectively) are undisputed, then there would be nothing for a jury to do
except second-guess the officers, which Graham held must be prevented.”
(emphasis in original). In this case, although there are many factual disputes, none
are material to the question of whether Officer Sirgedas violated Gonzalo’s Fourth
Amendment rights when he struck him with an asp and once in the head. This is a
question of reasonableness of force, which is a legal issue, id., and it is reviewable
on interlocutory appeal. See supra at 4.

Based on the facts as set forth by the district court, we conclude that Officer
Sirgedas did not use excessive force when he struck Gonzalo in the leg with an asp
and once in the head with a closed first. Specifically, as the district court laid out,
Gonzalo fled to the backyard to avoid arrest and resisted arrest. Gonzalo also
admitted to struggling with two officers, showing the difficulty they had in
subduing him. And while Gonzalo claimed he did not resist arrest to the extent the
officers claimed, he admitted resisting arrest by, among other things, biting an
officer. We add to those facts the explosive nature of the scene and the need to
quickly subdue Gonzalo before he injured the officers or attracted other party
guests to join in the struggle. Under the totality of the circumstances, we conclude
that Officer Sirgedas acted reasonably in striking Gonzalo on the leg with an asp
and once in the head with his fist.7 Accordingly, we reverse the district court’s
denial of summary judgment to defendant Sirgedas on the excessive force claim
brought by Gonzalo.

7
Given the unique circumstances of this case, there is a vacuum of analogous
case law. Nonetheless, the factors set forth in Graham support our conclusion. See
Graham, 490 U.S. at 396 (holding that whether the force used is reasonable
“requires careful attention to the facts and circumstances of each particular case,
including the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight”). Alternatively, given the
lack of analogous case law, even were we to conclude that Officer Sirgedas used
excessive force, he would be entitled to qualified immunity on Gonzalo’s claims
because it was not clearly established that his conduct was unreasonable.
Nos. 05-4278 & 05-4590 Page 18

b. Defendant Officer Vitalo

Gonzalo also alleged an excessive force claim against Officer Vitalo. The
district court set forth the facts related to Gonzalo’s claim against Officer Vitalo in
short order, noting only that: “As for Gonzalo Duran; Vitalo admits that he tackled
Gonzalo and, evidently, that he hit Gonzalo with his fists and with an asp when
attempting to subdue and arrest him.” District Court Opinion at 72. Based on
these facts, the district court denied Officer Vitalo’s motion for summary judgment
based on qualified immunity. Again, the question of reasonableness of force is a
legal issue, Bell, 321 F.3d at 640, and it is reviewable on interlocutory appeal. See
supra at 4.

As was the case with Officer Sirgedas, Officer Vitalo did not use excessive
force when he struck Gonzalo with an asp and with his fists. Gonzalo admitted to
fleeing to the backyard to avoid being arrested and to resisting arrest. Gonzalo also
admits that he struggled with at least two officers and that he bit one of those
officers. Given Gonzalo’s admission to resisting arrest, coupled with the escalating
situation, the number of partygoers and the presence of alcohol, we conclude that it
was reasonable for Officer Vitalo to strike Gonzalo with an asp and his fists while
attempting to subdue and arrest him.8 Accordingly, Officer Vitalo did not violate
Gonzalo’s Fourth Amendment’s rights. Therefore we reverse the district court’s
denial of summary judgment to defendant Vitalo on Gonzalo’s excessive force claim.

c. Defendant Sergeant Krummick

Gonzalo also sued Sergeant Krummick for excessive force. The district court
summarized the facts as related to this claim as follows: “There is evidence from
several plaintiffs that after officers pursued Gonzalo as he ‘walked fast’ from the
front yard to the back yard, Krummick participated in the scuffle and arrested of
Gonzalo (described in part in our discussion of Officer Sirgedas’s motion) by hitting
Gonzalo with an asp and kicking him.” District Court Opinion at 69-70. The
district court’s earlier description of the arrest noted that Gonzalo “admitted that he
struggled with two officers (apparently Vitalo and DeCianni), but he denies that he

8
Again, the uniqueness of this case leaves us without any analogous case
law, but the Graham factors nonetheless support our conclusion that Officer Vitalo
did not use excessive force in arresting Gonzalo. Alternatively, given the lack of
analogous case law, even were we to conclude that Officer Vitalo used excessive
force, he would be entitled to qualified immunity on Gonzalo’s claims because it was
not clearly established that his conduct was unreasonable.
Nos. 05-4278 & 05-4590 Page 19

bit Vitalo and denies that he hit or kicked Vitalo.” District Court Opinion at 38.
The district court also noted that Gonzalo admitted that he bit DeCianni. District
Court Opinion at 38.

As was the case with Officers Sirgedas and Vitalo, under the circumstances
facing the officers, striking Gonzalo with an asp and kicking him did not constitute
excessive force. Specifically, as noted above, Gonzalo admitted to fleeing to the
backyard to avoid being arrested and to resisting arrest and he admits that he
struggled with at least two officers and that he bit one of those officers. Gonzalo’s
admission to resisting arrest and the setting in which the resistance occurred (an
escalating situation in which partygoers outnumbered officers), we conclude it was
reasonable for Sergeant Krummick to strike Gonzalo with an asp and kick him so
as to try to subdue and arrest him.9 Accordingly, we reverse the district court’s
denial of summary judgment to defendant Sergeant Krummick on Gonzalo’s
excessive force claim.

d. Defendant Officer Peslak

As for the excessive force claim against Officer Peslak, the district court
stated that “Gonzalo Duran alleges that Peslak hit and kicked him in the attempt to
subdue and arrest him.” District Court Opinion at 83. The district court denied
Officer Peslak summary judgment concluding that a reasonable jury could find that
“Peslak either intended to cause [Gonzalo] harm or was deliberately indifferent to
the risk of causing [him] harm.” District Court Opinion at 85. While on
interlocutory appeal from the denial of qualified immunity we must accept the
district court’s version of the factual record, we review de novo legal conclusions.
See Leaf, 400 F.3d at 1077-78. And the question of reasonableness of force is a legal
issue. See Bell, 321 F.3d at 640.

In this case, as with Officers Sirgedas and Vitalo and Sergeant Krummick,
under the circumstances confronting the officers, it was reasonable for Officer
Peslak to hit and kick Gonzalo so as to effectuate the arrest.10 Therefore, Officer

9
As noted in our analysis of the claims against Officers Sirgedas and Vitalo,
the unique facts of this case leave us without analogous case law, but the Graham
factors support our conclusion. Alternatively, the lack of analogous case law would
entitle Sergeant Krummick to qualified immunity.
10
Again, the Graham factors support this conclusion, and the lack of
(continued...)
Nos. 05-4278 & 05-4590 Page 20

Peslak did not violate Gonzalo’s Fourth Amendment rights and we reverse the
district court’s denial of summary judgment to Officer Peslak on Gonzalo’s excessive
force claim.

e. Defendant Officer DeCianni

Gonzalo also alleged an excessive force claim against Officer DeCianni. As to
this claim, the district court noted that “Gonzalo alleged that DeCianni beat and
choked him in the attempt to subdue and arrest him.” District Court Opinion at 88.
The district court then concluded that Gonzalo Duran had an evidentiary basis for
his excessive force claim against Officer DeCianni. On appeal, Officer DeCianni
claims that he was entitled to qualified immunity on Gonzalo Duran’s excessive
force claim. However, in its order denying Officer DeCianni summary judgment,
the district court stated that “DeCianni argues that he is entitled to qualified
immunity on these [excessive force] claims (except as to the claims of Ruben Pineda
and Gonzalo Duran.)” District Court Opinion at 90. From this passage, it appears
that Officer DeCianni did not argue qualified immunity on the excessive force claim
Gonzalo presented. A claim not raised before the district court is waived on
appeal.11 See United States v. Hawk, 434 F.3d 959, 961-62 (7th Cir. 2006).
Accordingly, we affirm the district court’s denial of qualified immunity to Officer
DeCianni on Gonzalo’s excessive force claim.

C. Other Claims

In addition to the above claims, several individual plaintiffs sued for alleged
constitutional violations, and individual defendants sought qualified immunity on

10
(...continued)
analogous case law would in any event entitled Officer Peslak qualified immunity.
11
The defendants acknowledge as much as the claims against another
defendant, Officer Lewandowski, noting that because they mistakenly failed to
argue qualified immunity, they cannot ask this court to reverse the district court on
that basis. See Appellant Brief at 37 n.6. The defendants do not acknowledge the
same failure with respect to Officer DeCianni; but they also do not challenge the
district court’s conclusion that Officer DeCianni did not argue that he was entitled
to qualified immunity as to the excessive force claim Gonzalo Duran brought.
Accordingly, we take as undisputed the district court’s statement that Officer
DeCianni did not argue that he was entitled to qualified immunity on Gonclaim of
excessive force.
Nos. 05-4278 & 05-4590 Page 21

those claims. Again, select defendants appeal from the district court’s denial of
qualified immunity. We consider each of these individual claims in turn.

1. Claims by Amada Duran, Concepcion Duran, Jaime Duran, Kevin
Duran, and Alondra Paredes against Officers Krummick and/or
Officer DeCianni

Amada Duran, Concepcion Duran, Jaime Duran, and Kevin Duran sued
Sergeant Krummick and Officer DeCianni alleging that the defendants violated
their constitutional rights by spraying them with pepper spray. In addition, Alondra
Paredes sued Officer DeCianni, claiming that he also sprayed her with pepper spray
in violation of her constitutional rights. In considering Sergeant Krummick and
Officer DeCianni’s motion for summary judgment based on qualified immunity, the
district court relied on an affidavit Amada Duran filed with the court. In her
affidavit, Amada stated, “I was sprayed in the neck with pepper spray by Thomas
Krummick, then by Robert DeCianni,” and that “[m]y children, Jaime, Kevin, and
Concepcion, and my niece, Alondra Paredes, were with me and holding on to me
when I was sprayed and they were sprayed as well and were crying.” Based on this
affidavit, the district court concluded that the plaintiffs alleged sufficient facts that
“shocked the conscience” of the court so as to support a jury finding of a violation of
their Fourteenth Amendment due process rights.12

On appeal, Sergeant Krummick and Officer DeCianni first argue that the
district court erred in considering Amada Duran’s affidavit, claiming that Amada’s
affidavit contracted her prior sworn interrogatory answers. However, as explained
above, see supra at 5-6, this court lacks jurisdiction to review the challenge to
Amada Duran’s affidavit, as such a challenge is, in effect, an attack on the district
court’s conclusion as to whether or not the pretrial record sets forth a “genuine”
issue of fact for trial. McKinney, 463 F.3d at 690.

12
Given Amada Duran’s affidavit, it is unclear why Alondra Paredes only
alleged an excessive force claim against Officer DeCianni. However, the district
court’s opinion clearly states that only select plaintiffs asserted excessive force
claims against Sergeant Krummick, and then lists those plaintiffs. Absent from
that list is Alondra Paredes. Moreover, in its analysis of Sergeant Krummick’s
motion for summary judgment, the district court only analyzes Sergeant
Krummick’s alleged pepper spraying of Amada Duran and her children, and not
Alondra Paredes. Conversely, the district court listed Alondra Paredes as one of the
plaintiffs suing Officer DeCianni for excessive force based on his alleged pepper
spraying of her.
Nos. 05-4278 & 05-4590 Page 22

Sergeant Krummick and Officer DeCianni argue alternatively “that even if
the affidavit is considered the plaintiffs have not shown a Fourteenth Amendment
violation.” Appellant Brief at 35. This court has jurisdiction to consider this purely
legal question of whether the facts, as set forth by the district court, could be
sufficient to establish a violation of clearly established constitutional law. See Leaf,
400 F.3d at 1077-78.

Initially, we note that unlike the plaintiffs inside the house, these plaintiffs
were not “seized” within the meaning of the Fourth Amendment. Accordingly, their
claim is analyzed under the due process clause of the Fourteenth Amendment.
Conduct that violates the Fourteenth Amendment’s guarantee of substantive due
process must be so arbitrary that it “shocks the conscience.” County of Sacramento
v. Lewis, 523 U.S. 833, 846-47 (1998). Substantive due process is a most amorphous
doctrine that is a “difficult concept to pin down,” Tun v. Whitticker, 398 F.3d 899,
901 (7th Cir. 2005), but only “conduct intended to injure in some way unjustifiable
by any government interest” shocks the conscience. Lewis, 523 U.S. at 849.

In this case, the facts as set forth by the district court were that Sergeant
Krummick and Officer DeCianni sprayed pepper spray at Amada Duran and her
children, and Officer DeCianni also used excessive force by spraying Amada’s niece,
all while they were standing in the back yard. The district court did not find any
evidence that these plaintiffs were refusing to follow a police order or were resisting
arrest in any way. Nor did the district court conclude that the record evidence
indicated that the officers were spraying pepper spray more broadly to disperse the
crowd. Given these limited facts, we agree with the district court that a reasonable
officer would know that spraying individuals (who allegedly were not resisting
arrest, refusing to obey a lawful order to disperse, or otherwise interfering with
official business) with pepper spray without justification could support a jury
verdict based on the Fourteenth Amendment’s “shocks the conscience” standard, as
it could be found to be “conduct intended to injure in some way unjustifiable by any
government interest.” Lewis, 523 U.S. at 840. Accordingly, based on the facts set
forth by the district court, we conclude that at this stage Sergeant Krummick and
Officer DeCianni were not entitled to qualified immunity on these claims.
Therefore, we affirm the district court’s denial of summary judgment to defendants
Sergeant Krummick and Officer DeCianni on these claims.

2. Claims by Joel Rico Duran and Jesus Rico Duran against Officers Cruz
and DeCianni

Plaintiffs Joel Rico Duran and his two-year-old son, Jesus Rico Duran, sued
Officers Cruz and DeCianni, claiming those officers sprayed them with pepper
Nos. 05-4278 & 05-4590 Page 23

spray. Officers Cruz and DeCianni argued before the district court that they were
entitled to qualified immunity on these claims. Because Joel Rico Duran and Jesus
Rico Duran were not seized at the time the officers allegedly sprayed them with
pepper spray, the district court analyzed their claims under the Fourteenth
Amendment’s “shocks the conscience” standard. Applying this standard, the
district court denied Officers Cruz and DeCianni qualified immunity, concluding
that “[a] jury could reasonably find on the facts that Cruz’s [and DeCianni’s]
spraying of plaintiffs was done to cause harm.” District Court Opinion at 62, 90.

On appeal, Officers Cruz and DeCianni first argue that the district court
erred in considering an affidavit Joel Rico Duran filed identifying Officers Cruz and
DeCianni as the officers who sprayed him and his son. Officers Cruz and DeCianni
claim that this later-filed affidavit contradicted and changed the testimony Joel
Rico Duran had provided in his earlier answers to interrogatories. As noted above,
we lack jurisdiction to consider this challenge on interlocutory appeal. See infra at
5-6.

Alternatively, Officers Cruz and DeCianni claim that Joel Rico Duran and
Jesus Rico Duran did not present sufficient evidence to overcome the defendants’
claim of qualified immunity. Jurisdiction exists to consider this legal question, but
in doing so we must accept the facts as set forth by the district court. See supra at
4. The facts as summarized by the district court are that Officers Cruz and
DeCianni sprayed Joel Rico Duran and his two-year-old son, Jesus Rico Duran, with
pepper spray. Again, there was no finding of fact that Joel Rico Duran was
resisting arrest, disobeying a lawful order, or interfering with the police officers’
performance of their duties. Given these limited facts, we agree with the district
court that a reasonable officer would know that spraying individuals (who were not
resisting arrest, refusing to obey a lawful order, or otherwise interfering with
official business) with pepper spray and without justification “shocks the
conscience” in violation of the Fourteenth Amendment. See Lewis, 523 U.S. at 849.
Accordingly, based on the facts set forth by the district court, we must conclude at
this stage that Officers Cruz and DeCianni are not entitled to qualified immunity
on Joel Rico Duran’s and Jesus Rico Duran’s claims and we affirm the district
court’s denial of summary judgment.

3. Claims by Raquel Uribe, Florina Pindea, and Manuel Uribe Palacios
against Officer Vitalo

Plaintiffs Raquel Uribe, Florina Pindea, and Manuel Uribe Palacios sued
Officers Lewandowski and Vitalo, alleging that these defendants violated their
constitutional rights by spraying them with pepper spray. Officer Vitalo sought
Nos. 05-4278 & 05-4590 Page 24

summary judgment based on qualified immunity.13 In considering Officers Vitalo’s
motion for summary judgment based on qualified immunity, the district court relied
on an affidavit Rachel Uribe filed, stating that Vitalo entered the house and
“sprayed me, my mother, Florina Pineda, my father, Manuel Uribe, Sr., with pepper
spray.” District Court Opinion at 42 (quoting Affidavit of Raquel Uribe, Ex. 156).
The district court concluded that Uribe’s affidavit created a genuine issue of
material fact as to whether Officer Vitalo violated the constitutional rights of
Raquel Uribe, Florina Pindea and Manuel Uribe Palacios by spraying them with
pepper spray while they were inside the house. District Court Opinion at 43.

On appeal, Officer Vitalo first argues that the district court erred in
considering Raquel Uribe’s affidavit, claiming that her affidavit contradicted her
prior, sworn interrogatory answers. However, as explained above, see supra at 5-6,
this court lacks jurisdiction to review the challenge to Raquel Uribe’s affidavit, as
such a challenge is, in effect, an attack on the district court’s conclusion as to
whether or not the pretrial record sets forth a “genuine” issue of fact for trial.
McKinney, 463 F.3d at 690.

Officer Vitalo argues alternatively that even considering the affidavit, he is
entitled to qualified immunity because these plaintiffs have not presented sufficient
evidence of a constitutional violation. This court has jurisdiction to consider the
purely legal question of whether the facts, as set forth by the district court, could be
sufficient to establish a violation of clearly established constitutional law. See
supra 4. In this case, the facts set forth by the district court were that Officer
Vitalo entered the house and sprayed Raquel Uribe and her parents. The district
court did not find any evidence that these plaintiffs were refusing to follow a lawful
order, were resisting arrest in any way, or were attempting to leave the house.
Given these limited facts, we agree with the district court that a reasonable officer
would know that spraying pepper spray at individuals who were safely detained
within a house constitutes excessive force in violation of the Fourth Amendment.
See supra 9-10; see also Clash, 77 F.3d at 1048 (“[P]olice officers do not have the
right to shove, push, or otherwise assault innocent citizens without any provocation
whatsoever.”). Alternatively, such conduct could also “shock the conscience” in

13
On appeal, the defendants admit that they “failed to argue qualified
immunity for Lewandowski . . . [and] [c]onsequently, they can only ask that the
judge be reversed with respect to Vitalo.” Appellant Brief at 37 n.6.
Nos. 05-4278 & 05-4590 Page 25

violation of the Fourteenth Amendment. See, e.g., Lewis, 523 U.S. at 849.14
Accordingly, based on the facts as set forth by the district court, we conclude that at
this stage of litigation, Officer Vitalo is not entitled to qualified immunity and we
affirm the district court’s denial of his motion for summary judgment.

4. Claims by Graciela and Kassandra Torres against Officer McMahon

Graciela Torres and her daughter, Kassandra Torres, sued Officer McMahon,
claiming that he used force against them without provocation. The district court
summarized the factual claims as follows: “Graciela Torres alleges that McMahon
pushed her into a fence, causing a bruise. Kassandra Torres, who was seven years
old at the time of the events, alleges that McMahon pushed her to the ground,
causing a scratch on her arm.” District Court Opinion at 78. Officer McMahon
sought qualified immunity on these claims, but the district court denied his motion,
holding:

Even considering that the higher Fourteenth Amendment standard applies to
the qualified immunity analysis for these plaintiffs, we believe that a jury
could reasonably find from the evidence that McMahon’s alleged conduct
shocked the conscience because McMahon either intended to cause them
harm or was deliberatively indifferent to the risk of causing them harm.

District Court Opinion at 79.

On appeal, Officer McMahon first claims that the district court erred in
considering the affidavit Graciela filed that identified him as the officer who had
pushed Graciela and Kassandra. Officer McMahon contends that that affidavit
constituted a change in testimony from the answers Graciela made in her
interrogatory answers. Again, we lack jurisdiction to consider that question. See
supra 5-6.

14
Because these plaintiffs were inside the house, it would appear that they
were seized along with the other individuals who were ordered to remain in the
house. However, we need not conclusively rule on this question because even under
the higher Fourteenth Amendment standard, Officer Vitalo’s claim of qualified
immunity fails. We also note that the parties did not explore the question of the
appropriate standard and the district court ruled alternatively, holding that Officer
Vitalo was not entitled to qualified immunity “[e]ven considering that the higher
Fourteenth Amendment standard applies . . . .” District Court Opinion at 72.
Nos. 05-4278 & 05-4590 Page 26

Alternatively, Officer McMahon argues that he is entitled to qualified
immunity even accepting the facts set forth in the affidavit and relied upon by the
district court. Those facts, however, are extremely limited and merely portray
Officer McMahon as pushing Graciela into a fence and Kassandra to the ground for
no reason. There is no evidence noted in the district court’s opinion showing any
justification whatsoever for Officer McMahon pushing Graciela and Kassandra.
Under these circumstances, a reasonable officer would know that his conduct
violated clearly established constitutional norms. See Lewis, 523 U.S. at 849.15
Accordingly, at this stage, we must affirm the district court’s denial of summary
judgment to Officer McMahon.

5. Claims by Gonzalo Duran Jr. and Julia de la Cruz against Officer
Cruz

Gonzalo Duran Jr. and Julia de la Cruz claimed that Officer Cruz sprayed
them with pepper spray in violation of their constitutional rights. Officer Cruz
sought summary judgment based on qualified immunity. The district court denied
that motion, concluding that “[a] jury could reasonably find on the facts that Cruz’s
spraying of plaintiffs was done to cause harm.” District Court Opinion at 62.

On appeal, Officer Cruz first argues that the district court erred in relying on
Gonzalo Duran Jr.’s affidavit, in which he claimed that Officer Cruz “sprayed mace
which hit Julia de la Cruz and me in the face.” Officer Cruz claims that this
testimony contradicted Gonzalo Duran Jr.’s prior sworn testimony and thus should
not have been considered. Again, we lack jurisdiction to consider that question on
interlocutory appeal. See supra at 5-6.

Alternatively, Officer Cruz contends that he is entitled to qualified immunity
because Gonzalo Duran Jr.’s affidavit requires this court to speculate that Gonzalo
and Julia had done nothing and that Officer Cruz just walked up and sprayed them
without any provocation. Unlike the affidavits of the other plaintiffs addressed
above, which state that the defendants intentionally sprayed them with pepper
spray, Gonzalo Duran Jr.’s affidavit is more carefully crafted, stating

15
Of course, the facts may show the officers merely pushed these individuals
(and other plaintiffs presenting similar claims) as necessary to assist other officers
or to gain control of the situation. Such conduct, while possibly the “careless or
unwise excess of zeal,” would not violate the Due Process Clause. See Cummings v.
McIntire, 271 F.3d 341, 346 (1st Cir. 2001) (internal citations omitted). But here we
have no justification whatsoever presented.
Nos. 05-4278 & 05-4590 Page 27

that Officer Cruz “sprayed mace which hit Julia de la Cruz and me in the face.” See
Appellant Brief at 39 (quoting affidavits). It very well could be that Officer Cruz had
a legitimate reason to discharge the pepper spray at Gonzalo Duran Jr. and Julia de
la Cruz, or that he sprayed other partygoers who were resisting arrest and the
spray lofted over to Gonzalo Duran Jr., and Julia de la Cruz. Under either of those
circumstances, Officer Cruz would be entitled to qualified immunity. However, our
review on interlocutory appeal is limited to the facts as set forth by the district
court and under the district court’s version of the facts, there was no stated
justification for Officer Cruz spraying the pepper spray that struck Gonzalo, Duran,
Jr., and Julia de la Cruz. Accordingly, at this stage, we must deny Officer Cruz
qualified immunity, as it is clearly established that “conduct intended to injure in
some way unjustifiable by any government interest,” shock the conscience. Lewis,
523 U.S. at 849. Therefore, we affirm the district court’s denial of summary
judgment to Officer Cruz on these claims.

6. Claims by Jose Manuel Uribe and Jose Manuel Uribe Jr. against
Officer Cruz.

Jose Manuel Uribe and Jose Manuel Uribe Jr. sued Officer Cruz, claiming
that he sprayed them with pepper spray. Officer Cruz moved for summary
judgment based on qualified immunity. The district court denied Officer Cruz’s
motion, concluding that “a jury could reasonably find on the facts that Cruz’s
spraying of plaintiffs was done to cause harm.” District Court Opinion at 62.
Officer Cruz responds with the same two arguments made and rejected above,
namely that the district court erred in considering the affidavit Jose Manuel Uribe
filed because his affidavit conflicted with his earlier interrogatory answers, and that
using pepper spray on individuals does not violate clearly established constitutional
norms. We again reject those arguments, the first because we lack jurisdiction, see
supra at 12-16, and the second because it is clearly established that assaulting
individuals without provocation is unconstitutional. Lewis, 523 U.S. at 849.
Accordingly, we affirm the district court’s denial of summary judgment to Officer
Cruz on these claims.

7. Claims by Lisbeth Moreno and Diego Torres against Officer DeCianni.

Lisbeth Moreno and Diego Torres sued Officer DeCianni, claiming Officer
DeCianni sprayed them with pepper spray. The district court summarized the
allegations as follows: Lisbeth Moreno alleged that Officer DeCianni sprayed her,
and Diego Torres alleged that Officer DeCianni sprayed him and told him to “move
the f[–] out of the way, you little brat.” District Court Opinion at 88. Officer
DeCianni moved for summary judgment based on qualified immunity, and the
Nos. 05-4278 & 05-4590 Page 28

district court denied that motion, concluding “that a jury could reasonably find from
the evidence that DeCianni’s alleged conduct shocked the conscience because
DeCianni either intended to cause these plaintiffs harm or was deliberately
indifferent to the risk of causing them harm.” District Court Opinion at 90. On
appeal, Officer DeCianni incorporates the same arguments for reversal as
considered and rejected above. And we too incorporate our above analysis and hold
that we lack jurisdiction to consider whether the district court erred in considering
later-filed affidavits and that qualified immunity based on the sparse facts
undisputedly known at this time is inappropriate. See supra at 12-16; 70-71.
Therefore, we affirm the district court’s denial of summary judgment to Officer
DeCianni on these claims.

8. Claim by Ismael Torres against Officer Peslak.

Ismael Torres sued Officer Peslak, claiming that Officer Peslak sprayed him
with pepper spray in his eyes. Officer Peslak sought summary judgment based on
qualified immunity on this claim, but the district court denied the motion,
concluding that “a jury could reasonably find from the evidence that Peslak’s
alleged conduct shocked the conscience because Peslak either intended to cause
[Ismael Torres] harm or was deliberately indifferent to the risk of causing [him]
harm.” District Court Opinion at 85. On appeal, Officer Peslak also duplicates the
arguments made and rejected above. For the same reasons, we conclude that we
lack jurisdiction to consider whether the district court improperly considered Ismael
Torres’ later-filed (and allegedly contradictory) affidavit. See supra at 12-16. And
based on the facts as set forth by the district court, Officer Peslak is not entitled to
qualified immunity because a reasonable officer would know that it is
unconstitutional to spray someone with pepper spray, without any justification. See
supra at 70-71. Therefore, we affirm the district court’s denial of summary
judgment on Ismael Torres’s claim against Officer Peslak.

9. Jesus Uribe’s Claim against Sergeant Krummick.

Jesus Uribe alleged that Sergeant Krummick used excessive force by pushing
him inside the Duran house. Uribe also claimed that while inside the house he saw
pepper spray come from underneath the door, but Uribe did not claim any injury
from the pepper spray, and he does not point to any evidence that Sergeant
Krummick discharged the pepper spray. Thus, Uribe’s sole claim of excessive force
against Sergeant Krummick is based on the officer’s push.

Sergeant Krummick argued that he is entitled to qualified immunity on this
claim, but the district court denied Sergeant Krummick’s motion, concluding that
Nos. 05-4278 & 05-4590 Page 29

“it was clearly established that ‘police officers do not have the right to shove, push,
or otherwise assault innocent citizens without any provocation whatsoever.”
District Court Opinion at 67 (quoting Clash, 77 F.3d at 1048). The district court
further concluded that under Uribe’s version of the facts, “there was no reason for
Sergeant Krummick to believe that pushing Jesus Uribe into the house was
justified.” District Court Opinion at 67.

We disagree. Unlike the claims made by Graciela and Kassandra Torres that
they were pushed into a fence or to the ground, under the facts as found to exist by
the district court, Sergeant Krummick pushed Jesus Uribe into the house. Under
the circumstances of this case, an officer could reasonably believe that pushing an
individual into a house was justified by the need to disperse and control a large,
unruly gathering, in which partygoers outnumbered officers. Significantly, we
judge reasonableness from the officers’ perspective at the time and not with twenty-
twenty hindsight. In this case, as the district court set forth, Sergeant Krummick
was one of the later officers to arrive on the scene, and he arrived on the scene only
after back-up officers radioed the dispatcher to send a supervisor and additional
officers because people were “getting unruly.” District Court Opinion at 3. By the
time Sergeant Krummick arrived there were approximately eighty to ninety people
at the party, and there were several verbal confrontations occurring between
officers and party guests. District Court Opinion at 3. Under these circumstances,
it was reasonable for an officer to attempt to expeditiously corral the crowd by
pushing members of the crowd into the house. Or at a minimum, given the lack of
analogous case law, it was not clearly established that pushing an individual under
the circumstances known at the time to Sergeant Krummick violated clearly
established constitutional norms. Accordingly, Officer Krummick was entitled to
summary judgment on Jesus Uribe’s excessive force claim and we reverse the
district court.

10. Graciela Pineda’s claim against Officer Gross.

Plaintiff Graciela Pineda sued Officer Gross claiming that she violated her
constitutional rights by spraying her with pepper spray without justification.
Unlike the plaintiffs inside the house, Pineda was not “seized” within the meaning
of the Fourth Amendment, and thus her claim is analyzed under the “shocks the
conscience” standard of the Fourteenth Amendment. Lewis, 523 U.S. at 846-47.
Applying that standard, the district court denied Officer Gross qualified immunity,
concluding that a reasonable jury could find that she had sprayed Pineda in order to
cause harm.
Nos. 05-4278 & 05-4590 Page 30

On appeal, Officer Gross’s sole contention is that Graciela Pineda “has not
cited to any case that would show that spraying pepper spray in and of itself
constitutes excessive force.” Appellant Brief at 42. However, as this court has
explained before, “[i]t would create perverse incentives indeed if a qualified
immunity defense could succeed against those types of claims that have not
previously arisen because the behavior alleged is so egregious that no like case is on
the books. . . . The easiest cases don’t even arise.” McDonald by McDonald v.
Haskins, 966 F.2d 292, 295 (7th Cir. 1992) (internal quotations omitted). Thus,
defendants cannot claim qualified immunity merely because another case is not on
all fours with their situation. Rather, the question is whether the law provided the
defendant with fair notice that the conduct was unconstitutional. Coady v. Steil,
187 F.3d 727, 734 (7th Cir. 1999). Lewis provided just such warning, informing
officers that “conduct intended to injure in some way unjustifiable by any
government interest” shocks the conscience. Lewis, 523 U.S. at 849. While it may
well be that the facts that come out later show some justification for Officer Gross’s
alleged spraying of Graciela Pineda, the facts as set forth by the district court do
not support such a claim by Officer Gross. See e.g. Jackson v. City of Bremerton,
268 F.3d 646, 652-53 (9th Cir. 2001) (holding that use of pepper spray was
reasonable given individual’s active interference with officers); Wagner v. Bay City,
Texas, 227 F.3d 316, 324 (5th Cir. 2000) (holding that use of pepper spray was
reasonable where individual was resisting arrest); Monday v. Oullette, 118 F.3d
1099, 1104-05 (6th Cir. 1997) (holding that use of pepper spray was reasonable
where officer warned that he would discharge it if the individual did not cooperate).
Accordingly, at this stage we conclude that Officer Gross was not entitled to
qualified immunity and we affirm the district court’s denial of summary judgment
on this claim against Officer Gross.

11. Maria Alicia Moreno’s claim against Officer Gross.

Plaintiff Moreno also sued Officer Gross, arguing that Officer Gross violated
her constitutional rights by indirectly spraying her with pepper spray.16 Moreno

16
The district court noted that “[i]n her answer to interrogatories, Maria
Alicia Moreno identified Officers Peslak and Gross as having sprayed her with
pepper spray. However, in her affidavit, Moreno identifies only Peslak as having
sprayed her directly, and states that in the yard, she was not sprayed directly but
merely felt the effects of pepper spray indirectly. It does not appear that when
deposed, Moreno identified Gross as having sprayed her directly. Accordingly, we
will consider Moreno’s prior allegation that Gross sprayed her directly as having
(continued...)
Nos. 05-4278 & 05-4590 Page 31

further alleged that when she attempted to enter the garage, Officer Gross pulled
her away, ordering Moreno to remain in the backyard.

As with Pineda’s claim against Officer Gross, Moreno’s claim based on the
pepper spraying is analyzed under the Fourteenth Amendment’s “shocks the
conscience” standard. Lewis, 523 U.S. at 846-47. Applying that standard, the
district court concluded that “a jury could reasonably find on these facts that
Gross’s conduct was done to cause harm.” District Court Opinion at 60. We
disagree. As the district court explained, Moreno’s claim was that she felt the ill
effects of pepper spray indirectly. Thus, there is no evidence that Officer Gross
intended to cause harm to Moreno, and thus no evidence that Officer Gross’ conduct
violated the Fourteenth Amendment. As to the claim that Officer Gross “pulled”
Moreno when she attempted to enter the garage, that conduct was justified under
the facts as set forth by the district court, namely, the officers were faced with an
escalating situation in which partygoers outnumbered officers. It was reasonable
for an officer under these circumstances to believe it was necessary to pull someone
in the crowd so as to prevent them from entering a garage, which could have tools
or other items that could be used as weapons. Accordingly, Officer Gross did not
violate Moreno’s constitutional rights. Alternatively, Officer Gross was entitled to
qualified immunity on Moreno’s claims. Therefore, we reverse the district court’s
denial of summary judgment to defendant Officer Gross on Maria Alicia Moreno’s
claim.

12. Adolfo Duran’s claim against Officer McMahon.

Adolfo Duran sued Officer McMahon, claiming Officer McMahon sprayed him
with pepper spray. The district court noted that Officer McMahon admits that he
sprayed Adolfo Duran and that the allegations were thus sufficient to create a
genuine issue of fact on Adolfo’s excessive force claim. Accordingly, the district court
denied Officer McMahon qualified immunity.

On appeal, Officer McMahon argues that it is not even clear that he sprayed
Adolfo Duran, but that if he did, he did so because Adolfo Duran was pushing him.
Officer McMahon then argues that “[s]praying pepper spray at someone who is
pushing him is not in and of itself a malicious act and there is no evidence
McMahon intended to hurt Adolfo Duran.” Appellant Brief at 43. Although we
would agree that an officer is entitled to qualified immunity if the claim is that he

16
(...continued)
been abandoned.” District Court Opinion at 59.
Nos. 05-4278 & 05-4590 Page 32

pepper-sprayed an individual who pushed him in the midst of the officer attempting
to control a large crowd, the problem for Officer McMahon is that our review is
limited on interlocutory appeal. In this case, the district court noted only that
Officer McMahon admitted to spraying Adolfo Duran and did not set forth any facts
indicating that Adolfo Duran pushed Officer McMahon. Given our limited review,
we must affirm then the district court’s denial of summary judgment based on
qualified immunity because under the district court’s version of the facts, Officer
McMahon sprayed Adolfo Duran with pepper spray without justification. Lewis,
523 U.S. at 849.

III.

As explained above, this court lacks jurisdiction to consider the defendants’
challenges to the district court’s reliance on later-filed affidavits. However, we have
jurisdiction to consider the purely legal question of whether the facts, as set forth by
the district court, are sufficient to establish a violation of clearly established
constitutional norms. On the legal questions, we AFFIRM, in part, and REVERSE,
in part, on the claims of qualified immunity. Specifically, we AFFIRM the district
court’s denial of qualified immunity to: 1) Officers DeCianni and Peslak on the
claims brought by individuals alleging they were pepper- sprayed while inside the
Duran house; 2) Officer DeCianni on Gonzalo’s false arrest claim; 3) Officer
DeCianni on Gonzalo’s excessive force claim; 4) Sergeant Krummick on the claims
by Amada Duran, Concepcion Duran, Jaime Duran, and Kevin Duran that he
pepper-sprayed them without justification; 5) Officer DeCianni on the claims by
Amada Duran, Concepcion Duran, Jaime Duran, Kevin Duran and Alondra Paredes
that he pepper-sprayed them without justification; 6) Officers Cruz and DeCianni
on claims by Joel Rico Duran and Jesus Rico Duran that they pepper- sprayed them
without justification; 7) Officer Vitalo on claims by Raquel Uribe, Florina Pindea,
and Manuel Uribe Palacios that he pepper-sprayed them without justification; 8)
Officer McMahon on claims by Graciela and Kassandra Torres that he pushed them
without any justification; 9) Officer Cruz on claims by Gonzalo Duran Jr. and Julia
de la Cruz that he pepper-sprayed them without justification; 10) Officer Cruz on
claims by Jose Manuel Uribe and Jose Manuel Uribe Jr. that he pepper-sprayed
them without justification; 11) Officer DeCianni on claims by Lisbeth Moreno and
Diego Torres that he pepper-sprayed them without cause; 12) Officer Peslak on
Ismael Torres’s claim that Officer Peslak pepper-sprayed him without justification;
13) Officer Gross on Graciela Pineda’s claim that Officer Gross sprayed her with
pepper spray without justification; 14) Officer McMahon on Adolfo Duran’s claim
that Officer McMahon pepper-sprayed him without justification. We REVERSE as
to the district court’s denial of qualified immunity to: 1) Sergeant Krummick and
Officers Vitalo and Peslak on Gonzalo’s false arrest claim; 2) Sergeant Krummick
Nos. 05-4278 & 05-4590 Page 33

and Officers Sirgedas, Vitalo and Peslak on Gonzalo’s excessive force claim; 3)
Sergeant Krummick on Jesus Uribe’s claim that Sergeant Krummick pushed him
without justification; 4) Officer Gross on Maria Alicia Moreno’s Claim that Officer
Gross indirectly sprayed her with pepper spray in violation of her constitutional
rights and “pulled” her. We REMAND for the district court to enter judgment in
favor of the above designated defendants and for further proceedings consistent
with this opinion.