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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. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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