ILNews

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

Back to TopCommentsE-mailPrintBookmark and Share

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.

 

ADVERTISEMENT

  • 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!!!

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I enrolled America's 1st tax-free Health Savings Account (HSA) so you can trust me. I bet 1/3 of my clients were lawyers because they love tax-free deposits, growth and withdrawals or total tax freedom. Most of the time (always) these clients are uninformed about insurance law. Employer-based health insurance is simple if you read the policy. It says, Employers (lawyers) and employees who are working 30-hours-per-week are ELIGIBLE for insurance. Then I show the lawyer the TERMINATION clause which states: When you are no longer ELIGIBLE! Then I ask a closing question (sales term) to the lawyer which is, "If you have a stroke or cancer and become too sick to work can you keep your health insurance?" If the lawyer had dependent children they needed a "Dependent Conversion Privilege" in case their child got sick or hurt which the lawyers never had. Lawyers are pretty easy sales. Save premium, eliminate taxes and build wealth!

  2. Ok, so cheap laughs made about the Christian Right. hardiharhar ... All kidding aside, it is Mohammad's followers who you should be seeking divine protection from. Allahu Akbar But progressives are in denial about that, even as Europe crumbles.

  3. Father's rights? What about a mothers rights? A child's rights? Taking a child from the custody of the mother for political reasons! A miscarriage of justice! What about the welfare of the child? Has anyone considered parent alienation, the father can't erase the mother from the child's life. This child loves the mother and the home in Wisconsin, friends, school and family. It is apparent the father hates his ex-wife more than he loves his child! I hope there will be a Guardian Ad Litem, who will spend time with and get to know the child, BEFORE being brainwashed by the father. This is not just a child! A little person with rights and real needs, a stable home and a parent that cares enough to let this child at least finish the school year, where she is happy and comfortable! Where is the justice?

  4. "The commission will review applications and interview qualified candidates in March and April." Riiiiiight. Would that be the same vaulted process that brought us this result done by "qualified candidates"? http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774 Perhaps a lottery system more like the draft would be better? And let us not limit it to Indiana attorneys so as to give the untainted a fighting chance?

  5. Steal a little, and they put you in jail. Steal a lot, and they make you king. Bob Dylan ala Samuel Johnson. I had a very similar experience trying to hold due process trampling bureaucrats responsible under the law. Consider this quote and commentary:"'When the president does it, that means it is not illegal,' [Richard] Nixon told his interviewer. Those words were largely seen by the American public -- which continued to hold the ex-president in low esteem -- as a symbol of his unbowed arrogance. Most citizens still wanted to believe that no American citizen, not even the president, is above the law." BWHaahaaahaaa!!!! http://www.philly.com/philly/blogs/attytood/When-the-president-does-it-that-means-it-is-not-illegal.html

ADVERTISEMENT