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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. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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