7th Circuit Lacks Jurisdiction to Reach Daubert Issue in Qualified Immunity Appeal, Panel Says
In the wee hours of the morning, after a night out drinking, a college student makes his way to what he mistakenly believes is his friend's house, and bangs on the patio door. The widow who actually lives in the house calls 911 and tells the dispatcher that a stranger is trying to gain entry. The police arrive, and one of them sees the student standing in the backyard. The officer shouts some kind of warning. According to the officer, the student then charges him. Fearful that the student has a weapon or may get his hands on the officer's own, the officer shoots and kills the student.
The student's estate brings a section 1983 claim, alleging excessive force. The officer moves for summary judgment on grounds of qualified immunity, claiming that his conduct was objectively reasonable because the student was charging him. In response, the estate offers expert forensic evidence that the student did not in fact charge the officer. That evidence is shaky. It places the student at a location, when shot, that appears inconsistent with the bullets' angle of entry. It posits that the officer dragged the student's body to a spot near the patio, but fails to account for the absence of any blood trail. And it is seemingly inconsistent with the recovery of the shells near the tree where the officer and other eyewitnesses say the student was standing. Nevertheless, the district court finds that the estate's expert evidence creates a genuine issue of fact and denies the officer's motion. The officer appeals from denial of the summary judgment motion, and argues on appeal that the estate's forensic evidence is unreliable and should not have been considered in light of Daubert.
The Daubert challenge cannot be entertained by way of interlocutory appeal, the Seventh Circuit has ruled, in light of Johnson v. Jones, 515 U.S. 304 (1995) (holding that appellate jurisdiction is lacking where summary judgment rulings on qualified immunity rest on issues of evidentiary sufficiency). Pendent appellate jurisdiction over the Daubert issue is unavailable, the panel's opinion says, because pendent jurisdiction would depend on the existence of some other appealable order. See McKinney v. Duplain, No. 05-3812 (7th Cir. Sept. 12, 2006) (Ripple, Manion, & Kanne, JJ.).
The student's estate brings a section 1983 claim, alleging excessive force. The officer moves for summary judgment on grounds of qualified immunity, claiming that his conduct was objectively reasonable because the student was charging him. In response, the estate offers expert forensic evidence that the student did not in fact charge the officer. That evidence is shaky. It places the student at a location, when shot, that appears inconsistent with the bullets' angle of entry. It posits that the officer dragged the student's body to a spot near the patio, but fails to account for the absence of any blood trail. And it is seemingly inconsistent with the recovery of the shells near the tree where the officer and other eyewitnesses say the student was standing. Nevertheless, the district court finds that the estate's expert evidence creates a genuine issue of fact and denies the officer's motion. The officer appeals from denial of the summary judgment motion, and argues on appeal that the estate's forensic evidence is unreliable and should not have been considered in light of Daubert.
The Daubert challenge cannot be entertained by way of interlocutory appeal, the Seventh Circuit has ruled, in light of Johnson v. Jones, 515 U.S. 304 (1995) (holding that appellate jurisdiction is lacking where summary judgment rulings on qualified immunity rest on issues of evidentiary sufficiency). Pendent appellate jurisdiction over the Daubert issue is unavailable, the panel's opinion says, because pendent jurisdiction would depend on the existence of some other appealable order. See McKinney v. Duplain, No. 05-3812 (7th Cir. Sept. 12, 2006) (Ripple, Manion, & Kanne, JJ.).
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