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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. I can understand a 10 yr suspension for drinking and driving and not following the rules,but don't you think the people who compleate their sentences and are trying to be good people of their community,and are on the right path should be able to obtain a drivers license to do as they please.We as a state should encourage good behavior instead of saying well you did all your time but we can't give you a license come on.When is a persons time served than cause from where I'm standing,its still a punishment,when u can't have the freedom to go where ever you want to in car,truck ,motorcycle,maybe their should be better programs for people instead of just throwing them away like daily trash,then expecting them to change because they we in jail or prison for x amount of yrs.Everyone should look around because we all pay each others bills,and keep each other in business..better knowledge equals better community equals better people...just my 2 cents

  2. I was wondering about the 6 million put aside for common attorney fees?does that mean that if you are a plaintiff your attorney fees will be partially covered?

  3. I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.

  4. Being dedicated to a genre keeps it alive until the masses catch up to the "trend." Kent and Bill are keepin' it LIVE!! Thank you gentlemen..you know your JAZZ.

  5. Hemp has very little THC which is needed to kill cancer cells! Growing cannabis plants for THC inside a hemp field will not work...where is the fear? From not really knowing about Cannabis and Hemp or just not listening to the people teaching you through testimonies and packets of info over the last few years! Wake up Hoosier law makers!

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