In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1125
ALHADJI F. BAYON,
Plaintiff-Appellee,
v.
MARSHALL BERKEBILE, et al.,
Defendants-Appellants.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:18-cv-01122 — Richard L. Young, Judge.
____________________
ARGUED SEPTEMBER 29, 2021 — DECIDED MARCH 28, 2022
____________________
Before EASTERBROOK, RIPPLE, and ST. EVE, Circuit Judges.
RIPPLE, Circuit Judge. In this action brought under 42 U.S.C.
§ 1983, Alhadji Bayon alleges that Marshall Berkebile, Mat-
thew York, and Robbin Myers, officers of the Indianapolis
Metropolitan Police Department, violated his Fourth Amend-
ment rights by employing excessive force during his appre-
hension. In due course, the officers moved for summary judg-
ment on the ground of qualified immunity. The district court
denied the officers’ motion, concluding that the facts relevant
2 No. 21-1125
to their qualified immunity argument were in dispute. The of-
ficers now appeal the district court’s ruling. For the reasons
set forth in this opinion, we dismiss the appeal for lack of ap-
pellate jurisdiction.
I
BACKGROUND
A.
On the morning of December 24, 2017, Mr. Bayon at-
1
tempted to rob a gas station in Indianapolis, Indiana. He fled
the scene in a white Chevrolet Traverse. Numerous police of-
ficers learned of the attempted robbery over their police ra-
dios and, with their emergency lights activated, gave chase.
Mr. Bayon refused to stop, and, consequently, a high-speed
pursuit through residential areas ensued.
To end this dangerous situation, one of the pursuing of-
ficers, Officer Theodore Brink, executed a maneuver with his
car that resulted in the Traverse spinning and crashing into a
tree in the front yard of a home. Officer York, a recruit officer
in training riding with Officer Brink, exited the police vehicle
and stood behind the passenger-side door. Officer Myers
reached the scene shortly after the crash and positioned her
police vehicle about twenty-five feet from Mr. Bayon’s vehi-
cle. Officer Berkebile also arrived at the scene after the crash,
1 Due to the COVID-19 protocols at his correctional facility, Mr. Bayon
was unable to review all the evidence the defendants presented in support
of their motion for summary judgment or respond to the motion, thus we
do not have his version of the facts other than those given in his deposi-
tion. Our account of the facts comes from the facts assumed by the district
court and the evidence submitted on the officers’ summary judgment mo-
tion, construed in Mr. Bayon’s favor.
No. 21-1125 3
parked his vehicle about thirty to forty yards away, and po-
sitioned himself on his knees behind his vehicle’s engine
block facing Mr. Bayon’s Traverse.
Using a loudspeaker, Officer Myers ordered Mr. Bayon to
exit the Traverse multiple times. Mr. Bayon did not immedi-
ately comply with these orders; the officers indicated that he
took several minutes to exit the vehicle. Each of the officers
had a clear view of the driver-side door, but because the door
had been damaged in the crash and the airbags had de-
ployed, the officers could not see inside the Traverse.
Mr. Bayon testified in his deposition that he was dazed
from hitting his head during the collision. Moreover, the
damage from the crash made it difficult for him to open the
door of the Traverse. Eventually, he was able to force the
door open and exit the vehicle. On the street Mr. Bayon saw
ten to fifteen police officers and heard two conflicting com-
2
mands: to put his hands up and to show identification. He
reached toward his back right pants pocket for his wallet. The
officers responded to his movements by shooting him. Three
bullets hit Mr. Bayon, and he fell face-first to the ground.
Once he was on the ground, the officers approached him and
rolled him over. Mr. Bayon stated that once he was rolled
2 R.152 at 4. In his deposition, Mr. Bayon described the following scene:
“There were a bunch of demands being made. Now, I was told, I was told
put your hands up, put your hands up. Then I heard show identification.
Put your hands up. Like there was a bunch of demands. A bunch of yell-
ing, a bunch of yelling. So I made, I made the movement as to go in my
back pocket to reach for my ID, reach for my wallet, and then that’s when
I felt—the first bullet I felt was the one in my right thigh, I mean, my right
upper thigh which spun me around.” R.97-4 at 41:5–14.
4 No. 21-1125
over, one of the officers said, “Oh, my God, he doesn’t have
3
a weapon.”
The officers present a different version of the events. Fol-
lowing Officer Myers’s orders to exit the Traverse, the offic-
ers reported that it took Mr. Bayon approximately five
minutes to exit the vehicle. Prior to his exit, Officer Myers
observed the Traverse rocking back and forth. Officer Myers
thought he could be digging around for something in the ve-
hicle. After Mr. Bayon finally exited the vehicle, the officers
saw him take several aggressive steps towards Officer Myers.
Each officer also saw him reach for something in or near his
waistband. Officer Berkebile saw him reach for the front of
his waistband, not his back pocket. Officer Myers saw
Mr. Bayon reach down and lift up his t-shirt where she saw
a black, hard object with a ribbed handle and thought it was
a gun. Officer York saw Mr. Bayon lift his shirt and reach for
a black object in the waistband of his pants. He also heard
4
other officers yell “gun” before shots were fired. After roll-
ing Mr. Bayon over while he was on the ground, Officers
York and Myers saw another officer pull “a car jack handle,
5
about 2 feet long” out of his pant leg. When asked by Officer
Myers why he did it, Mr. Bayon told her that he “wanted to
3 R.152 at 5; R.97-4 at 42:8–10.
4 R.97-3 at 3.
5 R.97-2 at 4; R.97-3 at 4.
No. 21-1125 5
6
die.” In his deposition, Mr. Bayon stated that he did not re-
7
call making that statement.
B.
Mr. Bayon brought this action against the officers, alleg-
ing that the shooting was unreasonable and violated his
Fourth Amendment rights. The officers moved for summary
judgment, asserting that their use of force was justified and
that, in any event, they were entitled to qualified immunity
because their conduct did not violate clearly established law.
After setting forth the facts in the light most favorable to
Mr. Bayon, the district court determined the record presented
8
a genuine issue of material fact for a jury to decide. Relying
on Strand v. Minchuk, 910 F.3d 909, 915 (7th Cir. 2018), the dis-
trict court concluded that “[a] reasonable jury could find that,
when the officers shot Mr. Bayon, he was ‘subdued and com-
9
plying with the officer[s’] orders.’” And if Mr. Bayon was
complying with the officers’ orders at the time of the shooting,
then the jury would be obligated to find that the officers em-
ployed an unreasonable use of force. The district court further
noted that “Mr. Bayon testified that he did not reach for his
waistband, but for his back pocket—and that he did so in
10
compliance with the officers’ orders.” Because the facts
6 R.97-2 at 4.
7 R.97-4 at 60; 17–22.
8 R.152 at 8.
9 Id.
10 Id.
6 No. 21-1125
underlying the officers’ qualified immunity argument were in
dispute, the district court denied the officers’ motion for sum-
mary judgment.
II
DISCUSSION
We begin with an examination of our appellate jurisdic-
tion. As a general proposition, a district court’s denial of sum-
mary judgment is an unappealable interlocutory order be-
cause it is not a “final decision” as that term is employed in
28 U.S.C. § 1291. Ortiz v. Jordan, 562 U.S. 180, 188 (2011);
Thompson v. Cope, 900 F.3d 414, 419 (7th Cir. 2018). The judici-
ary has recognized an exception to this rule when a district
court denies summary judgment on the ground that the de-
11
fendants are not entitled to qualified immunity. Because
qualified immunity protects the public officer from the ex-
pense and distraction of having to stand trial when the con-
duct in question did not violate clearly established law, the
unavailability of an immediate interlocutory appeal would
render any later reversal of the district court’s decision
11 A qualified immunity defense “shields federal and state officials from
money damages unless a plaintiff demonstrates that the official violated a
statutory or constitutional right and that the right was ‘clearly established’
at the time of the challenged conduct.” Howell v. Smith, 853 F.3d 892, 897
(7th Cir. 2017) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)).
Whether a defendant officer is entitled to qualified immunity thus in-
volves two inquiries: “(1) whether the facts, taken in the light most favor-
able to the plaintiff, make out a violation of a constitutional right, and
(2) whether that constitutional right was clearly established at the time of
the alleged violation.” Williams v. City of Chicago, 733 F.3d 749, 758 (7th Cir.
2013).
No. 21-1125 7
illusory. See Estate of Davis v. Ortiz, 987 F.3d 635, 639 (7th Cir.
12
2021).
This exception to the final decision rule is, however, a very
narrow one. The denial of qualified immunity is only appeal-
able to the extent that it turns on an issue of law, White v.
Gerardot, 509 F.3d 829, 833 (7th Cir. 2007), our review is there-
fore confined to abstract issues of law, see Johnson v. Jones,
515 U.S. 304, 317 (1995). We may not reconsider the district
court’s determination that certain genuine issues of fact exist.
Id. at 319–20.
Here the nature of the claim is fact intensive. Mr. Bayon
asserts that the officers violated his Fourth Amendment right
that protects individuals from law enforcement officers’ un-
reasonable use of force. When evaluating excessive force
claims, the court has to “consider ‘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 was actively
resisting arrest or attempting to evade arrest by flight.’” Siler
v. City of Kenosha, 957 F.3d 751, 758–59 (7th Cir. 2020) (quoting
Graham v. Connor, 490 U.S. 386, 396 (1989)). In undertaking
this task, the court must assess the totality of the circum-
stances from the perspective of a reasonable officer on the
12 See also Plumhoff v. Rickard, 572 U.S. 765, 772 (2014) (noting that “this
immunity issue is both important and completely separate from the merits
of the action, and this question could not be effectively reviewed on appeal
from a final judgment because by that time the immunity from standing
trial will have been irretrievably lost”); Mitchell v. Forsyth, 472 U.S. 511, 526
(1985) (“The entitlement is an immunity from suit rather than a mere de-
fense to liability; and like an absolute immunity, it is effectively lost if a
case is erroneously permitted to go to trial.”).
8 No. 21-1125
scene. As we have noted, the very nature of this task often
makes summary judgment in these cases inappropriate. See
Abdullahi v. City of Madison, 423 F.3d 763, 773 (7th Cir. 2005)
(observing that, because “the Graham reasonableness inquiry
nearly always requires a jury to sift through disputed factual
contentions, and to draw inferences therefrom, … summary
judgment … in excessive force cases should be granted spar-
ingly” (internal quotation marks omitted)). When material
facts are disputed, a jury must resolve those disputes and de-
termine whether the officers acted reasonably.
Here, the district court determined that the facts underly-
ing Mr. Bayon’s claim were in dispute. The district court
noted that Mr. Bayon testified that he did not reach for his
waistband, but for his back pocket—“and that he did so in
13
compliance with the officers’ orders.” The court also noted
that “[t]he only evidence that Mr. Bayon possessed a weapon
is the officers’ testimony, which is inconsistent and—more
14
importantly—rebutted by Mr. Bayon’s testimony.”
Mr. Bayon also testified in his deposition, “There were a
bunch of demands being made. Now, I was told, I was told
put your hands up, put your hands up. Then I heard show
15
identification.” Thus, a reasonable jury could find that
Mr. Bayon was subdued and complying with the officers’ or-
ders when he was shot.
The officers’ submission that they are entitled to qualified
immunity is based on their own version of the facts, not on
13 R.152 at 8.
14 Id. at 7.
15 R.97-4 at 41:5–7.
No. 21-1125 9
the facts taken in the light most favorable to Mr. Bayon. The
officers assert they are entitled to qualified immunity because
“no clearly established law put them on notice that their con-
16
duct would violate Bayon’s rights.” In making this argu-
ment, however, the officers necessarily assumed the ac-
ceptance of their version of numerous disputed facts: whether
Mr. Bayon was compliant with their orders; whether he
walked aggressively towards the officers; whether he reached
for the object in his waistband or for his back pocket; and
whether there was a black object in his waistband. The officers
offer inferences from their version of the facts supportive of
their characterization of Mr. Bayon’s movements as aggres-
sive. They posit that Mr. Bayon “initially ignored commands
to exit his vehicle, then walked aggressively toward an officer
17
with an object that appeared to be a gun in his waistband.”
They emphasize that the officers saw “Bayon walk aggres-
18
sively with tense muscles and a scowl on his face.” They
urge that although “Bayon may have appeared to be comply-
ing with officer orders to show identification, … his aggres-
sive, purposeful, fast steps toward Officer Myers were threat-
19
ening because he was not yet under officers’ control.”
The fundamental difficulty with the officers’ argument is
that both the facts offered by the officers and their characteri-
zation of those facts conflict with Mr. Bayon’s account and the
16 Appellants’ Br. 9.
17 Id.
18 Id. at 13.
19 Id. at 15 (citation omitted).
10 No. 21-1125
permissible inferences that can be drawn from his rendition.
Mr. Bayon explained that he had difficulty opening the
driver’s side door and exiting his vehicle due to the damage
from the crash. He also described feeling dazed and dishev-
eled upon exiting the vehicle and facing a large police force.
He testified that he took two or three steps forward but had
no plans to do anything because he was “just one guy,” and
20
he knew “it was over.” In his deposition, Mr. Bayon stated
that after exiting the vehicle, he “maybe took two or three,
21
maybe two or three steps. [But] I didn’t advance.” By con-
trast, the officers portray Mr. Bayon as walking aggressively
with tense muscles and a scowl on his face. Mr. Bayon also
contested the assertion that he had a large black metal pipe in
22
his pants.
The situation here is different from the one presented to
us in Siler v. City of Kenosha. In Siler, the record made clear
that, at the time he confronted the officer, Mr. Siler belliger-
ently defied the officer’s directions to get on the ground and
dared the officer to shoot him. 957 F.3d at 760. It was also un-
disputed that, during the confrontation, Mr. Siler, who was
significantly larger and younger than the police officer, be-
came more aggressive and escalated the conflict into a one-
on-one standoff in a garage with bystanders present. Id. In
that situation, we concluded that the undisputed operative
20 R.97-4 at 46:5–15.
21 Id. at 44:22–24.
22 Mr. Bayon asserted in his deposition that he believed the black pipe
found on the ground near where he was apprehended “was planted to
justify them shooting me.” Id. at 47:11–16.
No. 21-1125 11
facts justified the lone officer’s conclusion that he was facing
the immediate threat of an overpowering attack. Id.
Here, by contrast, there remain serious questions about
the degree of resistance, if any, that Mr. Bayon displayed at
23
the time the officers acted. Mr. Siler “had refused every op-
portunity to surrender during the chase.” Id. at 760. While
Mr. Bayon failed to surrender during the car chase, the facts
could support a finding that, upon exiting the vehicle, he was
surrendering and reaching for his identification. The officers
contend that Mr. Bayon was not subdued or under control at
the time of the shooting, but as the district court correctly de-
termined, a reasonable jury could find otherwise. The officers
are not asking us to accept the “facts assumed by the district
court, supplemented as appropriate only by the undisputed
24
evidence viewed in the light most favorable to [Mr. Bayon].”
Instead, the officers’ legal arguments are premised on their
version of the facts, which the district court correctly deter-
mined were genuinely disputed.
“[O]ur appellate jurisdiction is secure only if the relevant
material facts are undisputed or (what amounts to the same
thing) when the defendant accepts the plaintiff’s version of
the facts as true for now.” Est. of Davis, 987 F.3d at 637 (citing
Johnson, 515 U.S. 304). Therefore, as we have noted earlier, a
party may not seek to invoke our jurisdiction when its argu-
ments are dependent on, and inseparable from, disputed
23 Mr. Bayon testified to the following, “it was a big police presence, like
the whole street was blocked off. I mean, there was police all over the
whole street.” Id. at 45:4–6.
24 Appellants’ Br. 1.
12 No. 21-1125
facts. Gant v. Hartman, 924 F.3d 445, 449 (7th Cir. 2019) (citing
White, 509 F.3d at 835); Gutierrez v. Kermon, 722 F.3d 1003,
1010–11 (7th Cir. 2013). Although the officers suggest other-
wise, they “are not asking us for review of an abstract ques-
tion of law, but rather they seek a reassessment of the district
court’s conclusion that sufficient evidence existed for [Bayon]
to go to trial.” Stinson v. Gauger, 868 F.3d 516, 526 (7th Cir.
2015); see also Jones v. Clark, 630 F.3d 677, 680 (7th Cir. 2011).
Here, the parties disagree as to what exactly happened af-
ter Mr. Bayon exited the vehicle and prior to the gunshots be-
ing fired. Did Mr. Bayon pose a threat to a reasonable officer
after he exited his vehicle? How immediate was the threat?
Did he continue to resist arrest? These issues present the “un-
certainties and unresolved material questions of fact” that
must be resolved by a factfinder before liability can be as-
sessed. Smith v. Finkley, 10 F.4th 725, 741 (7th Cir. 2021).
“These factual disputes bear on the objective reasonableness
of the force used to arrest Mr. [Bayon], and therefore a trial is
required before a determination can be made as to whether
[the officers are] entitled to qualified immunity.” Chelios v.
Heavener, 520 F.3d 678, 692 (7th Cir. 2008). Because they re-
main unresolved at this juncture, we cannot entertain an ap-
peal based on whether, as a matter of law, the defendant of-
ficers are entitled to qualified immunity.
CONCLUSION
We dismiss the appeal for lack of jurisdiction. Mr. Bayon
may recover his costs of this appeal.
APPEAL DISMISSED