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7th Circuit won’t excuse IMPD officer from wrongful arrest, excessive force suit

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A man’s federal lawsuit against two Indianapolis Metropolitan Police Department officers and the city will go forward after a federal judge rejected one officer’s interlocutory appeal.

Miguel Gutierrez sued IMPD officers Michael Kermon and Jason Thalheimer in February 2011, alleging wrongful arrest, use of excessive force and malicious prosecution after an arrest.

Gutierrez, 56, was born in Nicaragua but has lived in the U.S. more than 30 years, according to court records. He was walking home one night in March 2009 after working on his truck, and because he lives in a high-crime area, he carried a golf club for his protection.

Kermon was patrolling the area in response to a call about a fight involving two African-Americans and another person, and he relied on Gutierrez’s “unsteady gait” as part of the probable cause for a stop resulting in a public intoxication charge that later was thrown out.

Gutierrez said he doesn’t drink and his gait was due to an injury. He claims in his federal suit that Kermon rolled up with headlights off and didn’t identify himself as an officer when he ordered him to stop. Gutierrez claims Kermon pepper sprayed him, kicked him and broke his ribs, and refused to give him a breath test when he asked for one.   

Kermon asked the 7th Circuit to reverse a District Court denial of his motion for summary judgment on qualified immunity grounds. Judge Diane Wood wrote the court had no jurisdiction because Kermon relied on Gutierrez’s disputed unsteadiness, and the court will not reweigh evidence.

“Officer Kermon’s entire argument is dependent upon a disputed fact. Our cases have given fair warning that an interlocutory appeal will be dismissed if the argument for qualified immunity is dependent upon disputed facts,” Wood wrote in Miguel Gutierrez v. Michael R. Kermon, 12-2934. “Officer Kermon’s unabashed reliance on that disputed fact in support of his plea for qualified immunity deprives us of jurisdiction over this interlocutory appeal. We therefore dismiss this appeal.”

Wood also chastised the undisputed facts Kermon cited to make his immunity argument on appeal: Gutierrez’s dirty, disheveled appearance, his possession of a golf club; his apparent agitation and lack of cooperation, and his red, watery eyes.

“No reasonable officer could have reasonably, even if mistakenly, believed that these circumstances added up to probable cause that Gutierrez was committing the crime of public intoxication,” Wood wrote.

“The district court found that the issue of whether Gutierrez was swaying or walking with an unsteady gait is a genuine factual dispute in need of a jury’s attention.”

Gutierrez’s suit before Judge Tayna Walton Pratt in the U.S. Court for the Southern District of Indiana is Miguel Gutierrez v. The City of Indianapolis, Michael R. Kermon and Jason M. Thalheimer, 1:11-CV-0185.  A jury trial date has not yet been set.

 

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  • Down with thug cops,
    Did they really have a report of a fight or did they make that up too? More americans, need to stand up for their rights and show the moron, thug cops that their days are numbered. Let the corrupt ninnies know that their badge is not a license to break the law and violate citizens rights. America! Demand that immunity for judges, prosecutors and cops, be abolished. If they do their jobs right, they don't need immunity!!!

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  1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

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