Duran, Alejandro v. Sirgedas, Rudy , 240 F. App'x 104 ( 2007 )


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  •                        NONPRECEDENTIAL DISPOSITION
    To be cited only in accordance with
    Fed. R. App. P. 32.1
    United States Court of Appeals
    For the Seventh Circuit
    Chicago, Illinois 60604
    Argued September 14, 2006
    Decided May 1, 2007
    Before
    Hon. RICHARD D. CUDAHY, Circuit Judge
    Hon. DANIEL A. MANION, Circuit Judge
    Hon. ILANA DIAMOND ROVNER, Circuit Judge
    Nos. 05-4278 & 05-4590                           Appeal from the United States
    District Court for the Northern
    ALEJANDRO DURAN, MARIA C.                        District of Illinois, Eastern Division
    DURAN, JAQUELIN DURAN, et al.,
    Plaintiffs-Appellees,               No. 01 C 6858
    v.                                         John F. Grady, Judge.
    RUDY SIRGEDAS, ANTHONY
    LEWANDOWSKI, THOMAS
    KRATOCHVIL, et al.,
    Defendants-Appellants.
    ORDER
    Nearly eighty plaintiffs sued the Town of Cicero and seventeen Town of
    Cicero police officers for alleged injuries arising out of a September 2, 2000, incident
    between the police and the plaintiffs. The district court granted summary judgment
    in favor of several defendants, but denied other defendants’ motions for summary
    judgment. Some of the defendants who were denied summary judgment bring this
    interlocutory appeal arguing that the district court impermissibly considered
    affidavits filed by the plaintiffs and that they were entitled to qualified immunity.
    Nos. 05-4278 & 05-4590                                                              Page 2
    We lack jurisdiction to consider the evidentiary challenges, and affirm in part and
    reverse in part on the claims of qualified immunity.
    I.
    On September 2, 2000, Alejandro and Maria Concepcion Duran hosted a
    party to celebrate their daughter’s baptism. Guests began arriving in the late
    afternoon, and by about 8:00 p.m., there were as many as seventy people at the
    party. The Durans provided their guests with food and beverages, including beer
    and wine, and some of the guests brought their own beer as well. Around 9:30 p.m.,
    the Cicero Police Department received a telephone call complaining about the party.
    Officers Waldemar Cruz and Robert DeCianni responded to the complaint. After
    asking that cars be moved from the alley by the Durans’ home and the music turned
    down, the officers left. A little later, the Cicero Police Department received a second
    telephone complaint about the party. Officer DeCianni responded to the call from
    the police dispatcher, returning to the Durans’ home.1 When Officer DeCianni
    1
    On appeal, the plaintiffs claim that Officer DeCianni returned to the Durans’
    party on his own initiative and had not been dispatched. Before the district court,
    however, the plaintiffs did not respond to the defendants’ Statement of Material
    Facts. The district court therefore treated “those facts asserted in defendants’
    statement of material facts that have been properly supported with evidence [as]
    deemed admitted.” District Court Opinion at 12. Among other facts, the district
    court concluded, based on the Statement of Material Facts, that “the Town received
    a second telephone call from a neighbor of the Durans complaining about the party”
    and that Officer “DeCianni responded to the call from the police radio dispatcher by
    returning to the Durans’ home.” Given the plaintiffs’ failure to respond, the
    plaintiffs cannot now challenge those facts. See Dade v. Sherwin-Williams Co., 
    128 F.3d 1135
    , 1140 (7th Cir. 1997). Accordingly, this opinion relies on the facts set
    forth by the district court, irrespective of the plaintiffs’ challenges to those facts.
    Because the district court did not consider facts the plaintiffs now attempt to insert
    on appeal, we too will not consider those facts. 
    Id.
    For their part, the defendants claim that notwithstanding the plaintiffs’
    failure to respond to their Statement of Material Facts, the district court “borrowed
    some facts plaintiffs had raised earlier, which . . . was unfair . . . .” Appellants’
    Reply Brief at 2. The defendants then assert that this court should consider only
    those facts contained in their Statement of Material Facts, and not any additional
    facts set forth by the district court. However, on interlocutory appeal, this court
    (continued...)
    Nos. 05-4278 & 05-4590                                                         Page 3
    arrived the second time, there were about eighty or ninety people at the party.
    “[P]eople in the front yard began arguing with” Officer Decianni. District Court
    Opinion at 3. “Alejandro Duran argued that the music was not too loud and stated
    that he had a right to have guests at his house.” District Court Opinion at 3.
    Officer DeCianni radioed the dispatcher and requested assistance from additional
    officers, stating that the homeowner was being uncooperative.
    Officer Michael McMahon arrived as back-up and he also became involved in
    arguments with the partygoers. Officer DeCianni again radioed the dispatcher,
    asking for the department to send a supervisor and other officers because people
    were “getting unruly.” District Court Opinion at 3. Several other officers arrived
    and more verbal confrontations occurred between the officers and party guests. The
    district court noted that “[t]here [was] no dispute that there was shouting and use
    of profanities by both the officers and the party guests; however, it is disputed
    whether the officers or the party guests were the aggressors.” District Court
    Opinion at 3 - 4.
    As the situation escalated, the officers called for more and more
    reinforcements. The entire on-duty City of Cicero Police Department was
    dispatched to the disturbance. Dispatch also requested back-up support from the
    City of Chicago and another nearby city. The officers on the scene directed the party
    guests into the house, and some of the officers sprayed various partygoers with
    pepper spray. After additional officers arrived and police obtained control of the
    situation, the officers arrested seven of the plaintiffs: Alejandro Duran, Armando
    Duran, Adolfo Duran, Gonzalo Duran, Joel Uribe, Heriberto Uribe, and Juan Carlos
    Uribe.
    Juan Carlos Uribe was later released, apparently without being charged,
    while a misdemeanor complaint was signed against Heriberto Uribe and Joel Uribe
    for obstructing a peace officer, although those charges were not prosecuted.
    However, the four Durans were prosecuted on charges of battery and obstructing or
    resisting a peace officer. Following a jury trial, the Durans were found not guilty.
    The Durans, along with approximately seventy other plaintiffs, filed suit
    against seventeen Town of Cicero police officers and the Town of Cicero, alleging
    (...continued)
    lacks jurisdiction to second-guess the district court’s assessment of the record. See
    Johnson v. Jones, 
    515 U.S. 304
    , 319-20 (1995). Therefore, the facts set forth in this
    opinion come from the district court’s reading of the record.
    Nos. 05-4278 & 05-4590                                                          Page 4
    numerous constitutional claims. The defendants filed several motions for summary
    judgment. The district court granted summary judgment in favor of several of the
    defendants, but denied other defendants’ motions for summary judgment. Some of
    the defendants whose motions for summary judgment were denied filed this
    interlocutory appeal, claiming they are entitled to qualified immunity. Additional
    details relevant to the individual claims against the appealing defendants follow.
    II.
    As noted, some of the defendants who were denied qualified immunity filed
    this interlocutory appeal.2 While generally this court lacks jurisdiction under 
    28 U.S.C. § 1291
     to review a district court’s denial of summary judgment, “an exception
    to this rule comes into play when a movant requests summary judgment based on
    qualified immunity.” Jones v. Wilhelm, 
    425 F.3d 455
    , 466 (7th Cir. 2005). “Under
    the collateral order doctrine the district court’s denial of [a] motion for summary
    judgment based on qualified immunity is an immediately appealable ‘final decision’
    within the meaning of 
    28 U.S.C. § 1291
     to the extent that it turns on legal rather
    than factual questions.” Wernsing v. Thompson, 
    423 F.3d 732
    , 741 (7th Cir. 2005).
    However, a defendant “may not appeal a district court’s summary judgment order
    insofar as that order determines whether or not the pretrial record sets forth a
    ‘genuine’ issue of fact for trial.” Johnson, 
    515 U.S. at 319-20
    .
    In this appeal, the defendants seek to challenge both legal and factual
    conclusions reached by the district court. We lack jurisdiction to review the latter
    challenges interlocutorily, but may consider legal challenges to the district court’s
    denial of qualified immunity. Leaf v. Shelnutt, 
    400 F.3d 1070
    , 1078 (7th Cir. 2005).
    For each claim appealed, because of the important distinction between legal
    challenges and challenges to the district court’s factual conclusions for purposes of
    this court’s jurisdiction, we elaborate in detail on the type of challenge presented by
    the defendants.
    A.    Claims by individuals pepper sprayed inside the Duran house against Officers
    DeCianni and Peslak.
    2
    The defendants’ Notice of Appeal was filed on behalf of all but one of the
    defendants, and against all of the plaintiffs. However, in their opening brief, the
    defendants state that “[o]n reflection, they have limited the claims as specified in
    the particular arguments.” Appellant Brief at 3. Accordingly, this opinion
    discusses only the specific claims challenged in this interlocutory appeal.
    Nos. 05-4278 & 05-4590                                                             Page 5
    The first issue on appeal involves identical claims brought by thirty-four
    plaintiffs who claim that while they were inside the Duran house, Officers Robert
    DeCianni and William Peslak sprayed pepper spray inside the house, causing them
    to suffer ill effects in violation of their Fourth Amendment rights.3 Before analyzing
    the legal issues at play, we initially summarize the factual conclusions the district
    court found the record could reasonably support.
    In denying Officers DeCianni and Peslak qualified immunity on these claims,
    the district court determined that the pretrial record supported the conclusion that
    some of these thirty-four plaintiffs “were ordered or forced inside the house,” and
    “that everyone who was inside the house was instructed to stay in the house.” The
    district court also concluded that the pretrial record set forth a genuine issue of fact
    about whether Officers DeCianni and Peslak sprayed pepper spray into the back
    door of the Duran house. Additionally, the district court noted that “[a] reasonable
    jury could conclude from the evidence that the spraying was for the purpose of
    keeping the plaintiffs at bay inside the house.” Alternatively, the district court
    stated that “[a]nother conclusion could be that it was a deliberate action intended to
    cause harm; . . . .” Further, the district court found that “the facts could support a
    finding that defendants used plainly excessive force by assaulting plaintiffs with
    pepper spray without justification (when those plaintiffs were confined in the house
    and not provoking the officers).” These were the district court’s conclusions as to
    the facts the record could reasonably support and as to what genuine issues of fact
    existed. Under Johnson, this court lacks jurisdiction to review those conclusions on
    interlocutory appeal. Johnson, 
    515 U.S. at 319-20
    .
    Nonetheless, on appeal, Officer Peslak seeks to challenge the district court’s
    ruling that the record supported the conclusion that he sprayed pepper spray inside
    the house. Specifically, Officer Peslak claims that the district court improperly
    relied on an affidavit filed by Maria Alicia Moreno. In her affidavit, Moreno
    attested to seeing Officer Peslak “open the door that enters on the kitchen and
    spray mace into the kitchen.”4 District Court Opinion at 18. Officer Peslak claims
    3
    Technically, of course, this is a Fourteenth Amendment claim, as the
    Fourth Amendment “was incorporated against the states by the Fourteenth
    Amendment’s Due Process Clause.” Contreras v. City of Chicago, 
    119 F.3d 1286
    ,
    1290 (7th Cir. 1997). For simplicity, though, we refer to the defendants’ claims
    alleging unreasonable seizures as Fourth Amendment claims.
    4
    Another plaintiff testified to seeing Officer DeCianni spray pepper spray in
    (continued...)
    Nos. 05-4278 & 05-4590                                                          Page 6
    that the district court should have stricken this affidavit because it contradicted the
    previous testimony Moreno gave in her deposition. Officer Peslak maintains that
    under Johnson, 
    515 U.S. at 319-20
    , this court has jurisdiction to analyze an
    affidavit to determine if it was properly considered by the district court.
    In McKinney v. Duplain, 
    463 F.3d 679
     (7th Cir. 2006), this court rejected a
    similar attempt to side-step the mandate of Johnson. In McKinney, the estate of
    Michael McKinney sued Officer Duplain, alleging Officer Duplain violated
    McKinney’s constitutional rights by using excessive force. In responding to a 911
    burglary-in-progress call, Officer Duplain had shot and killed McKinney. 
    Id. at 681-82
    . Officer Duplain argued that he was entitled to summary judgment because
    the undisputed facts established that McKinney had charged him and that
    therefore he was justified in shooting McKinney. 
    Id. at 684
    . The district court
    rejected Officer Duplain’s argument, concluding that the testimony presented by
    McKinney’s experts created a factual issue as to whether McKinney had charged
    Officer Duplain. 
    Id. at 689
    . On appeal, this court noted that there were several
    problems with the proffered expert opinions, but held that under Johnson, this
    court lacked jurisdiction to consider a Daubert challenge. 
    Id. at 691-92
    .
    Specifically, we explained that
    given the mandate of Johnson, we lack jurisdiction to conduct such a review
    of the record. As Johnson made clear, a defendant “may not appeal a district
    court’s summary judgment order insofar as that order determines whether or
    not the pretrial record sets forth a ‘genuine’ issue of fact for trial.”
    
    Id. at 690
     (quoting Johnson, 
    515 U.S. at 319-20
    ). We then explained that that was
    exactly what Officer Duplain sought to do: “Officer Duplain maintains that the
    record does not support the district court’s conclusion that a genuine issue of fact
    exists as to whether McKinney charged Officer Duplain, because the only evidence
    that supports the view that McKinney did not charge comes from the inadmissible
    opinions of the proffered experts. . . .” McKinney, 
    463 F.3d at 690
    . Accordingly, in
    McKinney, we held that “notwithstanding the numerous problems with the
    proffered experts’ opinions that Officer Duplain identifies, we must dismiss Officer
    Duplain’s appeal for lack of jurisdiction.” 
    Id. at 691
    . Similarly, under Johnson, we
    lack jurisdiction in this case to review the challenge to Moreno’s affidavit, as such a
    challenge is, in essence, an attack on the district court’s conclusion as to whether or
    4
    (...continued)
    the house. Thus, only Officer Peslak challenges the district court’s reliance on
    Moreno’s affidavit.
    Nos. 05-4278 & 05-4590                                                            Page 7
    not the pretrial record sets forth a “genuine” issue of fact for trial. Johnson, 
    515 U.S. at 319-20
    .
    Although this court lacks jurisdiction under Johnson to assess the district
    court’s review of the factual record, Officers DeCianni and Peslak also present a
    legal challenge to the district court’s decision, namely they challenge the district
    court’s legal conclusion that the facts, as found to exist by the district court, violate
    clearly established constitutional norms. We have jurisdiction to review this purely
    legal question. See Leaf, 
    400 F.3d at 1078
    . See also Via v. LaGrand, 
    469 F.3d 618
    ,
    623 n.2 (7th Cir. 2006) (“[I]f the defendant argues on appeal that he is entitled to
    qualified immunity no matter how the genuine issue of material fact is resolved, we
    would have jurisdiction to consider that purely legal question.”)
    First, Officers DeCianni and Peslak challenge the district court’s legal
    conclusion that the thirty-four plaintiffs located in the Duran house were “seized”
    for purposes of the Fourth Amendment, claiming instead that the plaintiffs’ claims
    fall under the Fourteenth Amendment’s “shock the conscience” standard. A seizure
    for purposes of the Fourth Amendment can occur when an officer “by means of
    physical force or show of authority has in some way restrained the liberty of a
    citizen.” United States v. Mendenhall, 
    446 U.S. 544
    , 552 (1980) (internal quote
    omitted). See Graham v. Connor, 
    490 U.S. 386
    , 395 n.10 (1989) (“A ‘seizure’
    triggering the Fourth Amendment’s protections occurs only when government
    actors have, by means of physical force or show of authority, . . . in some way
    restrained the liberty of a citizen.”) (internal quotation omitted). A person is
    “seized” under the Fourth Amendment “if, in view of all of the circumstances
    surrounding the incident, a reasonable person would have believed that he was not
    free to leave.” Mendenhall, 
    446 U.S. at 554
    . The Mendenhall court further
    explained the circumstances that might indicate a seizure:
    [E]ven where the person did not attempt to leave, . . . [for instance] the
    threatening presence of several officers, the display of a weapon by an officer,
    some physical touching of the person of the citizen, or the use of language or
    tone of voice indicating that compliance with the officer’s request might be
    compelled.
    
    Id. at 554
    .
    Based on the facts, as found to exist by the district court, we agree that a
    reasonable jury could conclude that the thirty-four plaintiffs were “seized” for
    purposes of the Fourth Amendment. As the district court explained, when the
    officers arrived they told several of the plaintiffs to “get inside the house” and “get
    Nos. 05-4278 & 05-4590                                                          Page 8
    the f[–] inside.” District Court Opinion at 23. Additionally, “[a]t the time, there
    were numerous police officers in the yard, outside the yard, alongside the house,
    and entering and exiting the house.” District Court Opinion at 23. Moreover, the
    district court concluded that “[a] reasonable jury could conclude from the evidence
    that the spraying was for the purpose of keeping the plaintiffs at bay inside the
    house.” District Court Opinion at 26. Based on this view of the facts, a jury could
    reasonably conclude that the individuals inside the house were seized.
    Officers DeCianni and Peslak respond that some of the plaintiffs were
    already inside the house and may not have wanted to leave. However, the district
    court concluded that “there is evidence that everyone who was inside the house was
    instructed to stay in the house, . . . [and] [t]he plaintiffs who had already been in
    the house likely could hear what was going on outside and could see what was
    happening with the plaintiffs who were ordered inside.” District Court Opinion at
    24-25. We agree with the district court in its conclusion that based on this view of
    the facts “a reasonable person in the plaintiff’s shoes would not have believed that
    he or she was free to leave the house.” District Court Opinion at 25.
    Officers DeCianni and Peslak counter that “trying to get partygoers to go
    inside the Duran house, their own houses, or across the street and away from the
    scene was a sensible safety precaution in the midst of a riot, not a seizure. Police
    were trying to control the crowds so they would not be running back and forth,
    getting involved, getting hurt.” Appellant Brief at 20. We agree that it was
    eminently reasonable for the officers, when confronted with an escalating encounter
    with some seventy to ninety individuals, to try to disperse and control the crowd by
    ordering partygoers inside. However, that merely goes to the reasonableness of the
    seizure, not the initial question of whether Officers DeCianni and Peslak seized the
    thirty-four plaintiffs ordered to stay in the Duran house. Had the plaintiffs’ only
    claim been that the officers violated their Fourth Amendment rights by restraining
    them inside the Duran house, under the facts of this case, as set forth by the district
    court, there would be no constitutional violation.
    The facts, though, as found to exist by the district court, went further: The
    district court concluded that the “facts could support a finding that defendants used
    plainly excessive force by assaulting plaintiffs with pepper spray without
    justification (when those plaintiffs were confined in the house and not provoking the
    officers).” Thus, the reasonableness of directing and holding partygoers inside the
    house is not the issue; rather, the issue is whether, in seizing the plaintiffs inside
    the house, Officers DeCianni and Peslak used excessive force by spraying pepper
    spray into the house.
    Nos. 05-4278 & 05-4590                                                            Page 9
    Use of excessive force by police officers during a seizure constitutes a Fourth
    Amendment violation that is actionable under § 1983. Clash v. Beatty, 
    77 F.3d 1045
    ,
    1047 (7th Cir. 1996) (citing Graham v. Connor, 
    490 U.S. 386
    , 394 (1989)). More
    specifically, as the Supreme Court explained in Graham, if “as here, the excessive
    force claim arises in the context of an arrest or investigatory stop of a free citizen, it
    is most properly characterized as one invoking the protections of the Fourth
    Amendment, which guarantees citizens the right ‘to be secure in their persons . . .
    against unreasonable . . . seizures.’” Graham, 
    490 U.S. at 394
    . In such a
    circumstance, the question is whether a reasonable officer in the same
    circumstances would have concluded that a threat existed justifying the particular
    use of force. Graham, 
    490 U.S. at 396-97
    .
    The officers respond that even if the plaintiffs were seized for purposes of the
    Fourth Amendment, they are still entitled to qualified immunity on the excessive
    force claim. “To evaluate a claim of qualified immunity, we engage in a two-step
    analysis. First, we determine whether the plaintiffs’ claim states a violation of
    their constitutional rights. Then, we determine whether those rights were clearly
    established at the time the violation occurred.” Jacobs v. City of Chicago, 
    215 F.3d 758
    , 766 (7th Cir. 2000). Unless the plaintiffs prove both prongs, the defendants
    are entitled to qualified immunity. 
    Id.
    In arguing that they are entitled to qualified immunity, the officers maintain
    that the plaintiffs failed to establish a constitutional violation because none of the
    plaintiffs claimed to be a target of the pepper spray. However, contrary to the
    officers’ argument, the thirty-four plaintiffs claim that they were all targets of the
    pepper spray. In any event, if a police officer intends to inflict injury, without
    justification, the fact that the officer intentionally targets a large group of
    individuals, as opposed to a specific individual, is irrelevant.5 Of course, that might
    not be what happened here, as under one reading of the facts, the officers only
    intended to spray individuals who were attempting to leave the house after the
    officers ordered them indoors. See District Court Opinion at 26 (“A reasonable jury
    5
    This case differs from the situation where an innocent bystander is
    unintentionally injured as a result of an officer’s alleged excessive force. See Bublitz
    v. Cottey, 
    327 F.3d 485
    , 489 (7th Cir. 2003) (rejecting a transferred intent theory to
    liability under § 1983 and holding that because the plaintiffs were “simply not the
    intended object of the defendant officers’ attempts to seize the fleeing [suspect] . . .
    the Fourth Amendment is not implicated and cannot provide the basis for a § 1983
    claim”). Here, instead, all of the individuals in the house claim they were targeted.
    Nos. 05-4278 & 05-4590                                                         Page 10
    could conclude from the evidence that the spraying was for the purpose of keeping
    the plaintiffs at bay inside the house.”). Given the need for the police to control the
    increasingly dangerous situation, a reasonable officer could believe it reasonable to
    use pepper spray to detain inside the house individuals refusing to obey a lawful
    order. Thus, if it were undisputed that Officers DeCianni and Peslak had sprayed
    only the individuals attempting to exit the house after they were directed to remain
    inside, these officers would be entitled to qualified immunity, even if the spray
    caused discomfort to others.6 See Bublitz, 
    327 F.3d at 489-91
    ; cf. Clement v. Gomez,
    
    298 F.3d 898
    , 903-04 (9th Cir. 2002) (holding that officers who sprayed pepper
    spray into a cell to stop a fight between two inmates did not violate the Eighth
    Amendment rights of other inmates who were allegedly injured by the pepper
    spray).
    As noted above, however, in this case, the district court concluded that the
    “facts could support a finding that defendants used plainly excessive force by
    assaulting plaintiffs with pepper spray without justification (when those plaintiffs
    were confined in the house and not provoking the officers).” District Court Opinion
    at 28. Assaulting citizens who are safely detained without any provocation violates
    clearly established constitutional principles. See Clash, 
    77 F.3d at 1048
     (stating
    that “police officers do not have the right to shove, push, or otherwise assault
    innocent citizens without any provocation whatsoever”); see also Payne v. Pauley,
    
    337 F.3d 767
    , 780 (7th Cir. 2003) (holding that in 1998, it was clearly established
    that “it was unlawful to use excessively tight handcuffs and violently yank the arms
    of arrestees who were not resisting arrest, did not disobey the orders of a police
    officer, did not pose a threat to the safety of the officer or others, and were
    suspected of committing only minor crimes”).
    Alternatively, Officers DeCianni and Peslak argue that they are entitled to
    qualified immunity because none of the plaintiffs “claim to have been by the rear
    door when either of these officers allegedly sprayed.” Whether the plaintiffs were
    near the rear door, however, is irrelevant if the officers acted unreasonably in
    spraying the pepper spray at the individuals inside the house and the plaintiffs
    were injured by the pepper spray. It may well be that many of the plaintiffs did not
    6
    The district court also noted that several of the defendants who were inside the
    house testified that pepper spray was sprayed under the back door. District Court
    Opinion at 24. However, the district court did not find that the record evidence
    supported the conclusion that Officers DeCianni and Peslak were the ones who
    sprayed the pepper spray under the closed door. Therefore, for purposes of the
    claims against Officers DeCianni and Peslak, that testimony is irrelevant.
    Nos. 05-4278 & 05-4590                                                         Page 11
    suffer ill effects from the pepper spray, given that pepper spray may have a limited
    dispersal range. However, we lack jurisdiction to review the record to determine
    whether the thirty-four plaintiffs presented evidence that they were injured by the
    pepper spray being discharged within the house because the district court concluded
    that the evidence could support a finding that those plaintiffs were assaulted with
    pepper spray. See Johnson, 
    515 U.S. at 319-20
    .
    In conclusion, under the district court’s reading of the factual record, Officers
    DeCianni and Peslak are not entitled to qualified immunity. Therefore, at this
    stage, we must affirm the district court’s denial of summary judgment to defendants
    DeCianni and Peslak on the claims brought by the thirty-four plaintiffs for injuries
    allegedly caused by Officers DeCianni and Peslak spraying pepper spray into the
    house.
    Before considering the other issues on appeal, we pause to highlight that the
    principles set forth above apply equally to the remaining claims. Specifically, under
    Johnson, we lack jurisdiction to review the record to determine whether the genuine
    issues of fact found to exist by the district court in fact exist. We also lack
    jurisdiction to consider the defendants’ challenges to the district court’s evidentiary
    rulings and consideration of later-filed affidavits. Rather, we may only consider the
    legal question of whether the facts, as found to exist by the district court, could
    violate clearly established constitutional norms. Because numerous plaintiffs
    present distinct claims against multiple defendants, implicating different factual
    findings by the district court, we discuss the claims, for the most part, individually,
    even though the same law governs. While this results in some redundancy, given
    the complexity of this case, for clarity purposes, we prefer to err on the side of
    repetitiveness.
    B. Arrest of Gonzalo Duran
    Next, we consider Gonzalo Duran’s claims arising from his arrest. First,
    Gonzalo alleged false arrest claims against Sergeant Krummick and Officers
    Vitalo, Peslak and DeCianni. Second, Gonzalo claims that Sergeant Krummick and
    Officers Sirgedas, Vitalo, Peslak and DeCianni used excessive force in arresting
    him. The defendants respond that they had probable cause to arrest Gonzalo and
    that they only used as much force as necessary to effectuate the arrest, and
    accordingly were entitled to qualified immunity. We consider the false arrest and
    excessive force claims in turn.
    1.     False Arrest
    Nos. 05-4278 & 05-4590                                                       Page 12
    Gonzalo sued defendants Krummick, Vitalo, Peslak, and DeCianni for false
    arrest under § 1983. To establish a constitutional claim for false arrest under §
    1983, Gonzalo must prove that the defendants arrested him without probable cause.
    Williams v. Jaglowski, 
    269 F.3d 778
    , 781 (7th Cir. 2001). However, even if the
    defendants arrested Gonzalo without probable cause, “[i]f the officers can establish
    that they had ‘arguable probable cause’ to arrest the plaintiff, then the officers are
    entitled to qualified immunity. . . .” 
    Id.
     In other words, a defendant is entitled to
    qualified immunity on a false arrest claim if “a reasonable police officer in the same
    circumstances and with the same knowledge . . . as the officer in question could
    have reasonably believed that probable cause existed in light of well-established
    law.” Humphrey v. Staszak, 
    148 F.3d 719
    , 725 (7th Cir. 1998) (emphasis in original)
    (internal citations omitted).
    a. Sergeant Krummick
    In summarizing the facts relating to Sergeant Krummick, the district court
    stated that Sergeant Krummick claimed that he “was told that Gonzalo Duran had
    thrown a bottle or can at [DeCianni] and that [DeCianni] wanted him arrested.”
    District Court Opinion at 70. The district court also stated that “Gonzalo denies
    that he threw a bottle or can at DeCianni. He also denies that DeCianni ever
    claimed at the time that he was struck by a bottle or can; rather, he states that
    DeCianni merely told Krummick that the music was too loud.” District Court
    Opinion at 70. The district court then concluded that “there are factual issues
    involved in the reasonableness determination on the false arrest claim,” and that
    therefore “Krummick’s motion for summary judgment is denied as to Gonzalo
    Duran’s false arrest claim. . . .” District Court Opinion at 71.
    As explained above, this court lacks jurisdiction to review the record to
    determine whether the district court’s view of the facts is adequately supported by
    the record evidence. See supra at 4. However, this court has jurisdiction to address
    the legal question of whether the facts, as set forth by the district court, violate
    clearly established constitutional norms. See supra at 6. In this case, as the
    district court explained, there are some factual disputes, namely whether Gonzalo
    threw a bottle or can at Officer DeCianni and whether Officer DeCianni told
    Sergeant Krummick that Gonzalo had thrown a bottle or can at him, or merely told
    him the music was too loud. These factual disputes are immaterial, though,
    because Gonzalo (at least based on the facts set forth by the district court) did not
    challenge Sergeant Krummick’s claim that Officer DeCianni told him that he
    wanted Gonzalo arrested. An officer may reasonably rely on information provided
    by other officers. Martinez v. Simonetti, 
    202 F.3d 625
    , 634 (2d Cir. 2000). Thus,
    “[t]he police who actually make the arrest need not personally know all the facts
    Nos. 05-4278 & 05-4590                                                        Page 13
    that constitute probable cause if they reasonably are acting at the direction of
    another officer or police agency. United States v. Parra, 
    402 F.3d 752
    , 764 (7th Cir.
    2005) (quoting Tangwall v. Stuckey, 
    135 F.3d 510
    , 517 (7th Cir.1998). Under those
    circumstances, an “arrest is proper so long as the knowledge of the officer directing
    the arrest, or the collective knowledge of the agency he works for, is sufficient to
    constitute probable cause.” Parra, 
    402 F.3d at 764
     (quoting Tangwall, 
    135 F.3d at 517
    . In this case there are factual disputes that prevent us from determining
    whether probable cause supported Officer DeCianni’s directive to arrest Gonzalo.
    Nevertheless, “where a police officer makes an arrest on the basis of oral
    statements by fellow officers, an officer will be entitled to qualified immunity from
    liability in a civil rights suit for unlawful arrest provided it was objectively
    reasonable for him to believe, on the basis of the statements, that probable cause for
    the arrest existed.” Rogers v. Powell, 
    120 F.3d 446
    , 455 (3d Cir. 1997). Under the
    circumstances of this case, we conclude that it was objectively reasonable for
    Sergeant Krummick to rely on Officer DeCianni’s statement as a basis for believing
    probable cause existed to arrest Gonzalo. In other circumstances it might be
    appropriate for an officer to first obtain additional information regarding the basis
    for the arrest. But here Sergeant Krummick had no time to reflect. He was part of a
    group of reinforcing officers who had just been dispatched to the already chaotic
    scene. The officers were still mostly outnumbered by the partygoers, and the
    situation was apparently escalating. Under these circumstances, Sergeant
    Krummick could reasonably rely on Officer DeCianni’s statement that he wanted
    Gonzalo arrested as a basis for that arrest. Accordingly, Sergeant Krummick was
    entitled to qualified immunity. Therefore, we reverse the district court’s denial of
    summary judgment to Sergeant Krummick on the false arrest claim brought by
    Gonzalo.
    b. Officer Vitalo
    As to Gonzalo’s false arrest claim against Officer Vitalo, the district court
    noted that Officer Vitalo claimed that “[t]he evidence is unrebutted that he was told
    that Gonzalo Duran threw a can or bottle that hit Officer DeCianni.” However, the
    district court found that an issue of fact existed because Gonzalo denies that Officer
    “DeCianni ever claimed at the time that he was struck by a bottle or can; rather he
    states that DeCianni merely told Krummick that the music was too loud.” District
    Court Opinion at 76 - 77. In its summary of the facts, though, the district court also
    noted that Officer Sirgedas stated that after he “arrived at the Durans’ home, he
    heard Officer DeCianni tell Officer Vitalo that Gonzalo Duran had to be arrested.”
    District Court Opinion at 37. As with the case of Sergeant Krummick, even if
    Officer DeCianni had not told Officer Vitalo that Gonzalo had thrown an object at
    him, under the limited circumstances of this case, Officer Vitalo could reasonably
    Nos. 05-4278 & 05-4590                                                        Page 14
    rely on Officer DeCianni’s statement that he wanted Gonzalo arrested, as a basis to
    arrest Gonzalo. Officer Vitalo did not have the luxury of time to obtain a full
    briefing on the details; he had to act on what he knew at the time, and that included
    dispatch calls for back-up because of problems with the homeowners. Under those
    circumstances, a reasonable officer could believe there was probable cause to arrest
    Gonzalo and, accordingly, Officer Vitalo was entitled to qualified immunity.
    Therefore, we reverse the district court’s denial of summary judgment to defendant
    Officer Vitalo on Gonzalo’s false arrest claim.
    c. Officer Peslak
    Officer Peslak similarly argued to the district court that he was entitled to
    qualified immunity because “his involvement in the arrest was simply to help fellow
    officers of whom he had no reason to suspect they [sic] were not entitled to arrest
    someone.” District Court Opinion at 87 (quoting Peslak’s memorandum at 11). The
    district court rejected this argument concluding that “Peslak points to no particular
    evidence in support of his argument.” District Court Opinion at 87. From this
    statement, it appears that the district court rejected Officer Peslak’s motion based
    on his failure to properly cite to the record. A district court may deny a motion for
    summary judgment because the movant did not provide record support for his
    motion. However, in this case it would be a waste of judicial resources to allow
    Gonzalo’s claim against Officer Peslak to proceed because the facts, as set forth by
    the district court in other portions of its opinion, support Officer Peslak’s claim of
    qualified immunity. Specifically, the facts as summarized by the district court
    showed that Officer Peslak was not present at the scene when the initial dispute
    between Officer DeCianni and the partygoers broke out, but rather that Officer
    Peslak arrived in response to a call for back-up support. By the time Officer Peslak
    arrived there were some eighty or ninety people at the party, and there were
    several verbal confrontations occurring between the officers and partygoers.
    Additionally, the district court noted that the record showed that Officer DeCianni
    told at least two other officers that he wanted Gonzalo arrested. Even if Officer
    DeCianni did not direct Officer Peslak to arrest Gonzalo, a reasonable officer
    witnessing the scene and seeing other officers move to arrest Gonzalo could believe
    that those officers were acting on probable cause, and assist in effectuating the
    arrest. Although the other officers may not have expressly told Officer Peslak that
    probable cause existed, their conduct implied as much. Under those circumstances,
    a reasonable officer could believe there was probable cause to arrest Gonzalo, and
    accordingly Officer Peslak was entitled to qualified immunity. Cf. Rogers, 
    120 F.3d at 455
    . Therefore, we reverse the district court’s denial of summary judgment to
    Officer Peslak on Gonzalo’s false arrest claim.
    Nos. 05-4278 & 05-4590                                                           Page 15
    d. Officer DeCianni
    Officer DeCianni also claims that he is entitled to qualified immunity on
    Gonzalo’s false arrest claim. Because Gonzalo claims he did not throw a beer can or
    bottle at Officer DeCianni, as Officer DeCianni claimed, a factual dispute exists as
    to whether Officer DeCianni had probable cause for arresting Gonzalo on that basis.
    Officer DeCianni, however, argues that he is nonetheless entitled to qualified
    immunity because he “could have legally arrested Gonzalo for failing to shut down
    the party (which was Gonzalo’s understanding as to why he was being arrested) and
    causing a disturbance; he could also have arrested him for resisting a lawful police
    order.” Appellant Brief at 31.
    “Whether an officer has probable cause to arrest depends on the
    requirements of the applicable state criminal law.” Pourghoraishi v. Flying J, Inc.,
    
    449 F.3d 751
    , 761 (7th Cir. 2006). In his brief on appeal, Officer DeCianni did not
    cite to the relevant Illinois statutory provisions that he claims justified his arrest of
    Gonzalo. Officer DeCianni also did not identify the state law requirements
    necessary to justify Gonzalo’s arrest on the proposed alternative grounds. Officer
    DeCianni’s failure to develop this argument constitutes a forfeiture of those
    arguments on appeal. J. S. Sweet Co., Inc., v. Sika Chem. Corp., 
    400 F.3d 1028
    ,
    1035 n.2 (7th Cir. 2005). Accordingly, we affirm the district court’s denial of
    summary judgment to Officer DeCianni on Gonzalo’s false arrest claim.
    2. Excessive Force
    Gonzalo also claims that Sergeant Krummick and Officers Sirgedas, Vitalo,
    Peslak, and DeCianni used excessive force in arresting him. As the Supreme Court
    held in Graham, 
    490 U.S. at 396
    , “the right to make an arrest or investigatory stop
    necessarily carries with it the right to use some degree of physical coercion or threat
    thereof to effect it,” but the Fourth Amendment prohibits the use of excessive force
    during the execution of a seizure. 
    Id. at 396
    . “In order to decide whether the
    amount of force used during a seizure is ‘excessive,’ we examine the totality of the
    circumstances to determine whether the intrusion on the citizen’s Fourth
    Amendment interests was justified by the countervailing government interests at
    stake.” Jacobs v. City of Chicago, 
    215 F.3d 758
    , 773 (7th Cir. 2000). Specifically, we
    consider factors such as “the severity of the crime at issue, whether the suspect
    poses an immediate threat to the safety of the officers or others, and whether he is
    actively resisting arrest or attempting to evade arrest by flight.” 
    Id.
     Additionally,
    we “consider whether the citizen was under arrest or suspected of committing a
    crime, was armed, or was interfering or attempting to interfere with the officer's
    execution of his or her duties.” 
    Id.
     In the final analysis, the excessive force inquiry
    Nos. 05-4278 & 05-4590                                                         Page 16
    “looks to whether the force used to seize the suspect was excessive in relation to the
    danger he posed—to the community or to the arresting officers—if left unattended.”
    
    Id.
     (internal quotation omitted).
    To determine whether Sergeant Krummick and Officers Sirgedas, Vitalo,
    Peslak and DeCianni used excessive force, we must first summarize the factual
    conclusions the district court found the record could reasonably support. In denying
    the defendants qualified immunity on Gonzalo’s claim of excessive force, the district
    court summarized the record evidence, noting that Officer Sirgedas stated that after
    he “arrived at the Durans’ home, he heard Officer DeCianni tell Officer Vitalo that
    Gonzalo Duran had to be arrested.” The district court stated that it was difficult to
    tell exactly what Officer Sirgedas saw or did next, but that when Officer Vitalo
    “attempted to place Gonzalo Duran into custody,” Gonzalo “got on top of Officer
    Vitalo and started kicking him, punching him.” District Court Opinion at 38.
    Officer Sirgedas then tried to help Officer Vitalo by hitting Gonzalo’s leg once with
    his asp (i.e., baton) and by punching Gonzalo once in the head with a closed fist
    before handcuffing Gonzalo.
    The district court also summarized Gonzalo’s version of the events, first
    noting that “at his criminal trial, Gonzalo admitted that he was aware that certain
    officers wanted to arrest him and that he ‘walked fast’ into the back yard [sic] to get
    away from them.” District Court Opinion at 38. Gonzalo also “admitted that he
    struggled with two officers (apparently Vitalo and DeCianni), but he denies that he
    bit Vitalo and denies that he hit or kicked Vitalo.” District Court Opinion at 38.
    Gonzalo, however, admits that he bit DeCianni but claims he did so because
    DeCianni was choking him and he could not breathe. District Court Opinion at 38.
    The district court also stated that “Gonzalo does not admit that he resisted arrest to
    the extent described by the officers involved . . . .” District Court Opinion at 39. As
    explained at length above, at the interlocutory appeal stage, we must accept the
    facts as found to exist by the district court. See Johnson, 
    515 U.S. 319
    -20; see supra
    at 4.
    Against this factual backdrop, then, we consider the legal question of
    whether the defendants sued by Gonzalo for excessive force are entitled to qualified
    immunity. As noted above, a defendant is entitled to qualified immunity “even if
    we conclude that the defendant’s alleged actions were improper to the point of being
    unconstitutional, . . . unless the unconstitutionality of the actions was clearly
    established at the time of their occurrence.” Board v. Farnham, 
    394 F.3d 469
    , 477
    (7th Cir. 2005).
    a. Defendant Officer Sirgedas
    Nos. 05-4278 & 05-4590                                                         Page 17
    As to defendant Officer Sirgedas, the district court concluded that “[t]he
    nature of Sirgedas’ use of force—in particular his admitted punching of Gonzalo in
    the head with a closed fist—requires a jury determination of reasonableness.”
    District Court Opinion at 40. However, as this court explained in Bell v. Irwin, 
    321 F.3d 637
    , 640 (7th Cir. 2003) “when material facts (or enough of them to justify the
    conduct objectively) are undisputed, then there would be nothing for a jury to do
    except second-guess the officers, which Graham held must be prevented.”
    (emphasis in original). In this case, although there are many factual disputes, none
    are material to the question of whether Officer Sirgedas violated Gonzalo’s Fourth
    Amendment rights when he struck him with an asp and once in the head. This is a
    question of reasonableness of force, which is a legal issue, 
    id.,
     and it is reviewable
    on interlocutory appeal. See supra at 4.
    Based on the facts as set forth by the district court, we conclude that Officer
    Sirgedas did not use excessive force when he struck Gonzalo in the leg with an asp
    and once in the head with a closed first. Specifically, as the district court laid out,
    Gonzalo fled to the backyard to avoid arrest and resisted arrest. Gonzalo also
    admitted to struggling with two officers, showing the difficulty they had in
    subduing him. And while Gonzalo claimed he did not resist arrest to the extent the
    officers claimed, he admitted resisting arrest by, among other things, biting an
    officer. We add to those facts the explosive nature of the scene and the need to
    quickly subdue Gonzalo before he injured the officers or attracted other party
    guests to join in the struggle. Under the totality of the circumstances, we conclude
    that Officer Sirgedas acted reasonably in striking Gonzalo on the leg with an asp
    and once in the head with his fist.7 Accordingly, we reverse the district court’s
    denial of summary judgment to defendant Sirgedas on the excessive force claim
    brought by Gonzalo.
    7
    Given the unique circumstances of this case, there is a vacuum of analogous
    case law. Nonetheless, the factors set forth in Graham support our conclusion. See
    Graham, 
    490 U.S. at 396
     (holding that whether the force used is reasonable
    “requires careful attention to the facts and circumstances of each particular case,
    including the severity of the crime at issue, whether the suspect poses an
    immediate threat to the safety of the officers or others, and whether he is actively
    resisting arrest or attempting to evade arrest by flight”). Alternatively, given the
    lack of analogous case law, even were we to conclude that Officer Sirgedas used
    excessive force, he would be entitled to qualified immunity on Gonzalo’s claims
    because it was not clearly established that his conduct was unreasonable.
    Nos. 05-4278 & 05-4590                                                         Page 18
    b. Defendant Officer Vitalo
    Gonzalo also alleged an excessive force claim against Officer Vitalo. The
    district court set forth the facts related to Gonzalo’s claim against Officer Vitalo in
    short order, noting only that: “As for Gonzalo Duran; Vitalo admits that he tackled
    Gonzalo and, evidently, that he hit Gonzalo with his fists and with an asp when
    attempting to subdue and arrest him.” District Court Opinion at 72. Based on
    these facts, the district court denied Officer Vitalo’s motion for summary judgment
    based on qualified immunity. Again, the question of reasonableness of force is a
    legal issue, Bell, 
    321 F.3d at 640
    , and it is reviewable on interlocutory appeal. See
    supra at 4.
    As was the case with Officer Sirgedas, Officer Vitalo did not use excessive
    force when he struck Gonzalo with an asp and with his fists. Gonzalo admitted to
    fleeing to the backyard to avoid being arrested and to resisting arrest. Gonzalo also
    admits that he struggled with at least two officers and that he bit one of those
    officers. Given Gonzalo’s admission to resisting arrest, coupled with the escalating
    situation, the number of partygoers and the presence of alcohol, we conclude that it
    was reasonable for Officer Vitalo to strike Gonzalo with an asp and his fists while
    attempting to subdue and arrest him.8 Accordingly, Officer Vitalo did not violate
    Gonzalo’s Fourth Amendment’s rights. Therefore we reverse the district court’s
    denial of summary judgment to defendant Vitalo on Gonzalo’s excessive force claim.
    c. Defendant Sergeant Krummick
    Gonzalo also sued Sergeant Krummick for excessive force. The district court
    summarized the facts as related to this claim as follows: “There is evidence from
    several plaintiffs that after officers pursued Gonzalo as he ‘walked fast’ from the
    front yard to the back yard, Krummick participated in the scuffle and arrested of
    Gonzalo (described in part in our discussion of Officer Sirgedas’s motion) by hitting
    Gonzalo with an asp and kicking him.” District Court Opinion at 69-70. The
    district court’s earlier description of the arrest noted that Gonzalo “admitted that he
    struggled with two officers (apparently Vitalo and DeCianni), but he denies that he
    8
    Again, the uniqueness of this case leaves us without any analogous case
    law, but the Graham factors nonetheless support our conclusion that Officer Vitalo
    did not use excessive force in arresting Gonzalo. Alternatively, given the lack of
    analogous case law, even were we to conclude that Officer Vitalo used excessive
    force, he would be entitled to qualified immunity on Gonzalo’s claims because it was
    not clearly established that his conduct was unreasonable.
    Nos. 05-4278 & 05-4590                                                         Page 19
    bit Vitalo and denies that he hit or kicked Vitalo.” District Court Opinion at 38.
    The district court also noted that Gonzalo admitted that he bit DeCianni. District
    Court Opinion at 38.
    As was the case with Officers Sirgedas and Vitalo, under the circumstances
    facing the officers, striking Gonzalo with an asp and kicking him did not constitute
    excessive force. Specifically, as noted above, Gonzalo admitted to fleeing to the
    backyard to avoid being arrested and to resisting arrest and he admits that he
    struggled with at least two officers and that he bit one of those officers. Gonzalo’s
    admission to resisting arrest and the setting in which the resistance occurred (an
    escalating situation in which partygoers outnumbered officers), we conclude it was
    reasonable for Sergeant Krummick to strike Gonzalo with an asp and kick him so
    as to try to subdue and arrest him.9 Accordingly, we reverse the district court’s
    denial of summary judgment to defendant Sergeant Krummick on Gonzalo’s
    excessive force claim.
    d. Defendant Officer Peslak
    As for the excessive force claim against Officer Peslak, the district court
    stated that “Gonzalo Duran alleges that Peslak hit and kicked him in the attempt to
    subdue and arrest him.” District Court Opinion at 83. The district court denied
    Officer Peslak summary judgment concluding that a reasonable jury could find that
    “Peslak either intended to cause [Gonzalo] harm or was deliberately indifferent to
    the risk of causing [him] harm.” District Court Opinion at 85. While on
    interlocutory appeal from the denial of qualified immunity we must accept the
    district court’s version of the factual record, we review de novo legal conclusions.
    See Leaf, 
    400 F.3d at 1077-78
    . And the question of reasonableness of force is a legal
    issue. See Bell, 
    321 F.3d at 640
    .
    In this case, as with Officers Sirgedas and Vitalo and Sergeant Krummick,
    under the circumstances confronting the officers, it was reasonable for Officer
    Peslak to hit and kick Gonzalo so as to effectuate the arrest.10 Therefore, Officer
    9
    As noted in our analysis of the claims against Officers Sirgedas and Vitalo,
    the unique facts of this case leave us without analogous case law, but the Graham
    factors support our conclusion. Alternatively, the lack of analogous case law would
    entitle Sergeant Krummick to qualified immunity.
    10
    Again, the Graham factors support this conclusion, and the lack of
    (continued...)
    Nos. 05-4278 & 05-4590                                                        Page 20
    Peslak did not violate Gonzalo’s Fourth Amendment rights and we reverse the
    district court’s denial of summary judgment to Officer Peslak on Gonzalo’s excessive
    force claim.
    e.     Defendant Officer DeCianni
    Gonzalo also alleged an excessive force claim against Officer DeCianni. As to
    this claim, the district court noted that “Gonzalo alleged that DeCianni beat and
    choked him in the attempt to subdue and arrest him.” District Court Opinion at 88.
    The district court then concluded that Gonzalo Duran had an evidentiary basis for
    his excessive force claim against Officer DeCianni. On appeal, Officer DeCianni
    claims that he was entitled to qualified immunity on Gonzalo Duran’s excessive
    force claim. However, in its order denying Officer DeCianni summary judgment,
    the district court stated that “DeCianni argues that he is entitled to qualified
    immunity on these [excessive force] claims (except as to the claims of Ruben Pineda
    and Gonzalo Duran.)” District Court Opinion at 90. From this passage, it appears
    that Officer DeCianni did not argue qualified immunity on the excessive force claim
    Gonzalo presented. A claim not raised before the district court is waived on
    appeal.11 See United States v. Hawk, 
    434 F.3d 959
    , 961-62 (7th Cir. 2006).
    Accordingly, we affirm the district court’s denial of qualified immunity to Officer
    DeCianni on Gonzalo’s excessive force claim.
    C.    Other Claims
    In addition to the above claims, several individual plaintiffs sued for alleged
    constitutional violations, and individual defendants sought qualified immunity on
    10
    (...continued)
    analogous case law would in any event entitled Officer Peslak qualified immunity.
    11
    The defendants acknowledge as much as the claims against another
    defendant, Officer Lewandowski, noting that because they mistakenly failed to
    argue qualified immunity, they cannot ask this court to reverse the district court on
    that basis. See Appellant Brief at 37 n.6. The defendants do not acknowledge the
    same failure with respect to Officer DeCianni; but they also do not challenge the
    district court’s conclusion that Officer DeCianni did not argue that he was entitled
    to qualified immunity as to the excessive force claim Gonzalo Duran brought.
    Accordingly, we take as undisputed the district court’s statement that Officer
    DeCianni did not argue that he was entitled to qualified immunity on Gonclaim of
    excessive force.
    Nos. 05-4278 & 05-4590                                                          Page 21
    those claims. Again, select defendants appeal from the district court’s denial of
    qualified immunity. We consider each of these individual claims in turn.
    1.     Claims by Amada Duran, Concepcion Duran, Jaime Duran, Kevin
    Duran, and Alondra Paredes against Officers Krummick and/or
    Officer DeCianni
    Amada Duran, Concepcion Duran, Jaime Duran, and Kevin Duran sued
    Sergeant Krummick and Officer DeCianni alleging that the defendants violated
    their constitutional rights by spraying them with pepper spray. In addition, Alondra
    Paredes sued Officer DeCianni, claiming that he also sprayed her with pepper spray
    in violation of her constitutional rights. In considering Sergeant Krummick and
    Officer DeCianni’s motion for summary judgment based on qualified immunity, the
    district court relied on an affidavit Amada Duran filed with the court. In her
    affidavit, Amada stated, “I was sprayed in the neck with pepper spray by Thomas
    Krummick, then by Robert DeCianni,” and that “[m]y children, Jaime, Kevin, and
    Concepcion, and my niece, Alondra Paredes, were with me and holding on to me
    when I was sprayed and they were sprayed as well and were crying.” Based on this
    affidavit, the district court concluded that the plaintiffs alleged sufficient facts that
    “shocked the conscience” of the court so as to support a jury finding of a violation of
    their Fourteenth Amendment due process rights.12
    On appeal, Sergeant Krummick and Officer DeCianni first argue that the
    district court erred in considering Amada Duran’s affidavit, claiming that Amada’s
    affidavit contracted her prior sworn interrogatory answers. However, as explained
    above, see supra at 5-6, this court lacks jurisdiction to review the challenge to
    Amada Duran’s affidavit, as such a challenge is, in effect, an attack on the district
    court’s conclusion as to whether or not the pretrial record sets forth a “genuine”
    issue of fact for trial. McKinney, 
    463 F.3d at 690
    .
    12
    Given Amada Duran’s affidavit, it is unclear why Alondra Paredes only
    alleged an excessive force claim against Officer DeCianni. However, the district
    court’s opinion clearly states that only select plaintiffs asserted excessive force
    claims against Sergeant Krummick, and then lists those plaintiffs. Absent from
    that list is Alondra Paredes. Moreover, in its analysis of Sergeant Krummick’s
    motion for summary judgment, the district court only analyzes Sergeant
    Krummick’s alleged pepper spraying of Amada Duran and her children, and not
    Alondra Paredes. Conversely, the district court listed Alondra Paredes as one of the
    plaintiffs suing Officer DeCianni for excessive force based on his alleged pepper
    spraying of her.
    Nos. 05-4278 & 05-4590                                                          Page 22
    Sergeant Krummick and Officer DeCianni argue alternatively “that even if
    the affidavit is considered the plaintiffs have not shown a Fourteenth Amendment
    violation.” Appellant Brief at 35. This court has jurisdiction to consider this purely
    legal question of whether the facts, as set forth by the district court, could be
    sufficient to establish a violation of clearly established constitutional law. See Leaf,
    
    400 F.3d at 1077-78
    .
    Initially, we note that unlike the plaintiffs inside the house, these plaintiffs
    were not “seized” within the meaning of the Fourth Amendment. Accordingly, their
    claim is analyzed under the due process clause of the Fourteenth Amendment.
    Conduct that violates the Fourteenth Amendment’s guarantee of substantive due
    process must be so arbitrary that it “shocks the conscience.” County of Sacramento
    v. Lewis, 
    523 U.S. 833
    , 846-47 (1998). Substantive due process is a most amorphous
    doctrine that is a “difficult concept to pin down,” Tun v. Whitticker, 
    398 F.3d 899
    ,
    901 (7th Cir. 2005), but only “conduct intended to injure in some way unjustifiable
    by any government interest” shocks the conscience. Lewis, 
    523 U.S. at 849
    .
    In this case, the facts as set forth by the district court were that Sergeant
    Krummick and Officer DeCianni sprayed pepper spray at Amada Duran and her
    children, and Officer DeCianni also used excessive force by spraying Amada’s niece,
    all while they were standing in the back yard. The district court did not find any
    evidence that these plaintiffs were refusing to follow a police order or were resisting
    arrest in any way. Nor did the district court conclude that the record evidence
    indicated that the officers were spraying pepper spray more broadly to disperse the
    crowd. Given these limited facts, we agree with the district court that a reasonable
    officer would know that spraying individuals (who allegedly were not resisting
    arrest, refusing to obey a lawful order to disperse, or otherwise interfering with
    official business) with pepper spray without justification could support a jury
    verdict based on the Fourteenth Amendment’s “shocks the conscience” standard, as
    it could be found to be “conduct intended to injure in some way unjustifiable by any
    government interest.” Lewis, 
    523 U.S. at 840
    . Accordingly, based on the facts set
    forth by the district court, we conclude that at this stage Sergeant Krummick and
    Officer DeCianni were not entitled to qualified immunity on these claims.
    Therefore, we affirm the district court’s denial of summary judgment to defendants
    Sergeant Krummick and Officer DeCianni on these claims.
    2.     Claims by Joel Rico Duran and Jesus Rico Duran against Officers Cruz
    and DeCianni
    Plaintiffs Joel Rico Duran and his two-year-old son, Jesus Rico Duran, sued
    Officers Cruz and DeCianni, claiming those officers sprayed them with pepper
    Nos. 05-4278 & 05-4590                                                       Page 23
    spray. Officers Cruz and DeCianni argued before the district court that they were
    entitled to qualified immunity on these claims. Because Joel Rico Duran and Jesus
    Rico Duran were not seized at the time the officers allegedly sprayed them with
    pepper spray, the district court analyzed their claims under the Fourteenth
    Amendment’s “shocks the conscience” standard. Applying this standard, the
    district court denied Officers Cruz and DeCianni qualified immunity, concluding
    that “[a] jury could reasonably find on the facts that Cruz’s [and DeCianni’s]
    spraying of plaintiffs was done to cause harm.” District Court Opinion at 62, 90.
    On appeal, Officers Cruz and DeCianni first argue that the district court
    erred in considering an affidavit Joel Rico Duran filed identifying Officers Cruz and
    DeCianni as the officers who sprayed him and his son. Officers Cruz and DeCianni
    claim that this later-filed affidavit contradicted and changed the testimony Joel
    Rico Duran had provided in his earlier answers to interrogatories. As noted above,
    we lack jurisdiction to consider this challenge on interlocutory appeal. See infra at
    5-6.
    Alternatively, Officers Cruz and DeCianni claim that Joel Rico Duran and
    Jesus Rico Duran did not present sufficient evidence to overcome the defendants’
    claim of qualified immunity. Jurisdiction exists to consider this legal question, but
    in doing so we must accept the facts as set forth by the district court. See supra at
    4. The facts as summarized by the district court are that Officers Cruz and
    DeCianni sprayed Joel Rico Duran and his two-year-old son, Jesus Rico Duran, with
    pepper spray. Again, there was no finding of fact that Joel Rico Duran was
    resisting arrest, disobeying a lawful order, or interfering with the police officers’
    performance of their duties. Given these limited facts, we agree with the district
    court that a reasonable officer would know that spraying individuals (who were not
    resisting arrest, refusing to obey a lawful order, or otherwise interfering with
    official business) with pepper spray and without justification “shocks the
    conscience” in violation of the Fourteenth Amendment. See Lewis, 
    523 U.S. at 849
    .
    Accordingly, based on the facts set forth by the district court, we must conclude at
    this stage that Officers Cruz and DeCianni are not entitled to qualified immunity
    on Joel Rico Duran’s and Jesus Rico Duran’s claims and we affirm the district
    court’s denial of summary judgment.
    3.     Claims by Raquel Uribe, Florina Pindea, and Manuel Uribe Palacios
    against Officer Vitalo
    Plaintiffs Raquel Uribe, Florina Pindea, and Manuel Uribe Palacios sued
    Officers Lewandowski and Vitalo, alleging that these defendants violated their
    constitutional rights by spraying them with pepper spray. Officer Vitalo sought
    Nos. 05-4278 & 05-4590                                                          Page 24
    summary judgment based on qualified immunity.13 In considering Officers Vitalo’s
    motion for summary judgment based on qualified immunity, the district court relied
    on an affidavit Rachel Uribe filed, stating that Vitalo entered the house and
    “sprayed me, my mother, Florina Pineda, my father, Manuel Uribe, Sr., with pepper
    spray.” District Court Opinion at 42 (quoting Affidavit of Raquel Uribe, Ex. 156).
    The district court concluded that Uribe’s affidavit created a genuine issue of
    material fact as to whether Officer Vitalo violated the constitutional rights of
    Raquel Uribe, Florina Pindea and Manuel Uribe Palacios by spraying them with
    pepper spray while they were inside the house. District Court Opinion at 43.
    On appeal, Officer Vitalo first argues that the district court erred in
    considering Raquel Uribe’s affidavit, claiming that her affidavit contradicted her
    prior, sworn interrogatory answers. However, as explained above, see supra at 5-6,
    this court lacks jurisdiction to review the challenge to Raquel Uribe’s affidavit, as
    such a challenge is, in effect, an attack on the district court’s conclusion as to
    whether or not the pretrial record sets forth a “genuine” issue of fact for trial.
    McKinney, 
    463 F.3d at 690
    .
    Officer Vitalo argues alternatively that even considering the affidavit, he is
    entitled to qualified immunity because these plaintiffs have not presented sufficient
    evidence of a constitutional violation. This court has jurisdiction to consider the
    purely legal question of whether the facts, as set forth by the district court, could be
    sufficient to establish a violation of clearly established constitutional law. See
    supra 4. In this case, the facts set forth by the district court were that Officer
    Vitalo entered the house and sprayed Raquel Uribe and her parents. The district
    court did not find any evidence that these plaintiffs were refusing to follow a lawful
    order, were resisting arrest in any way, or were attempting to leave the house.
    Given these limited facts, we agree with the district court that a reasonable officer
    would know that spraying pepper spray at individuals who were safely detained
    within a house constitutes excessive force in violation of the Fourth Amendment.
    See supra 9-10; see also Clash, 
    77 F.3d at 1048
     (“[P]olice officers do not have the
    right to shove, push, or otherwise assault innocent citizens without any provocation
    whatsoever.”). Alternatively, such conduct could also “shock the conscience” in
    13
    On appeal, the defendants admit that they “failed to argue qualified
    immunity for Lewandowski . . . [and] [c]onsequently, they can only ask that the
    judge be reversed with respect to Vitalo.” Appellant Brief at 37 n.6.
    Nos. 05-4278 & 05-4590                                                         Page 25
    violation of the Fourteenth Amendment. See, e.g., Lewis, 
    523 U.S. at 849
    .14
    Accordingly, based on the facts as set forth by the district court, we conclude that at
    this stage of litigation, Officer Vitalo is not entitled to qualified immunity and we
    affirm the district court’s denial of his motion for summary judgment.
    4.     Claims by Graciela and Kassandra Torres against Officer McMahon
    Graciela Torres and her daughter, Kassandra Torres, sued Officer McMahon,
    claiming that he used force against them without provocation. The district court
    summarized the factual claims as follows: “Graciela Torres alleges that McMahon
    pushed her into a fence, causing a bruise. Kassandra Torres, who was seven years
    old at the time of the events, alleges that McMahon pushed her to the ground,
    causing a scratch on her arm.” District Court Opinion at 78. Officer McMahon
    sought qualified immunity on these claims, but the district court denied his motion,
    holding:
    Even considering that the higher Fourteenth Amendment standard applies to
    the qualified immunity analysis for these plaintiffs, we believe that a jury
    could reasonably find from the evidence that McMahon’s alleged conduct
    shocked the conscience because McMahon either intended to cause them
    harm or was deliberatively indifferent to the risk of causing them harm.
    District Court Opinion at 79.
    On appeal, Officer McMahon first claims that the district court erred in
    considering the affidavit Graciela filed that identified him as the officer who had
    pushed Graciela and Kassandra. Officer McMahon contends that that affidavit
    constituted a change in testimony from the answers Graciela made in her
    interrogatory answers. Again, we lack jurisdiction to consider that question. See
    supra 5-6.
    14
    Because these plaintiffs were inside the house, it would appear that they
    were seized along with the other individuals who were ordered to remain in the
    house. However, we need not conclusively rule on this question because even under
    the higher Fourteenth Amendment standard, Officer Vitalo’s claim of qualified
    immunity fails. We also note that the parties did not explore the question of the
    appropriate standard and the district court ruled alternatively, holding that Officer
    Vitalo was not entitled to qualified immunity “[e]ven considering that the higher
    Fourteenth Amendment standard applies . . . .” District Court Opinion at 72.
    Nos. 05-4278 & 05-4590                                                         Page 26
    Alternatively, Officer McMahon argues that he is entitled to qualified
    immunity even accepting the facts set forth in the affidavit and relied upon by the
    district court. Those facts, however, are extremely limited and merely portray
    Officer McMahon as pushing Graciela into a fence and Kassandra to the ground for
    no reason. There is no evidence noted in the district court’s opinion showing any
    justification whatsoever for Officer McMahon pushing Graciela and Kassandra.
    Under these circumstances, a reasonable officer would know that his conduct
    violated clearly established constitutional norms. See Lewis, 
    523 U.S. at 849
    .15
    Accordingly, at this stage, we must affirm the district court’s denial of summary
    judgment to Officer McMahon.
    5.     Claims by Gonzalo Duran Jr. and Julia de la Cruz against Officer
    Cruz
    Gonzalo Duran Jr. and Julia de la Cruz claimed that Officer Cruz sprayed
    them with pepper spray in violation of their constitutional rights. Officer Cruz
    sought summary judgment based on qualified immunity. The district court denied
    that motion, concluding that “[a] jury could reasonably find on the facts that Cruz’s
    spraying of plaintiffs was done to cause harm.” District Court Opinion at 62.
    On appeal, Officer Cruz first argues that the district court erred in relying on
    Gonzalo Duran Jr.’s affidavit, in which he claimed that Officer Cruz “sprayed mace
    which hit Julia de la Cruz and me in the face.” Officer Cruz claims that this
    testimony contradicted Gonzalo Duran Jr.’s prior sworn testimony and thus should
    not have been considered. Again, we lack jurisdiction to consider that question on
    interlocutory appeal. See supra at 5-6.
    Alternatively, Officer Cruz contends that he is entitled to qualified immunity
    because Gonzalo Duran Jr.’s affidavit requires this court to speculate that Gonzalo
    and Julia had done nothing and that Officer Cruz just walked up and sprayed them
    without any provocation. Unlike the affidavits of the other plaintiffs addressed
    above, which state that the defendants intentionally sprayed them with pepper
    spray, Gonzalo Duran Jr.’s affidavit is more carefully crafted, stating
    15
    Of course, the facts may show the officers merely pushed these individuals
    (and other plaintiffs presenting similar claims) as necessary to assist other officers
    or to gain control of the situation. Such conduct, while possibly the “careless or
    unwise excess of zeal,” would not violate the Due Process Clause. See Cummings v.
    McIntire, 
    271 F.3d 341
    , 346 (1st Cir. 2001) (internal citations omitted). But here we
    have no justification whatsoever presented.
    Nos. 05-4278 & 05-4590                                                        Page 27
    that Officer Cruz “sprayed mace which hit Julia de la Cruz and me in the face.” See
    Appellant Brief at 39 (quoting affidavits). It very well could be that Officer Cruz had
    a legitimate reason to discharge the pepper spray at Gonzalo Duran Jr. and Julia de
    la Cruz, or that he sprayed other partygoers who were resisting arrest and the
    spray lofted over to Gonzalo Duran Jr., and Julia de la Cruz. Under either of those
    circumstances, Officer Cruz would be entitled to qualified immunity. However, our
    review on interlocutory appeal is limited to the facts as set forth by the district
    court and under the district court’s version of the facts, there was no stated
    justification for Officer Cruz spraying the pepper spray that struck Gonzalo, Duran,
    Jr., and Julia de la Cruz. Accordingly, at this stage, we must deny Officer Cruz
    qualified immunity, as it is clearly established that “conduct intended to injure in
    some way unjustifiable by any government interest,” shock the conscience. Lewis,
    
    523 U.S. at 849
    . Therefore, we affirm the district court’s denial of summary
    judgment to Officer Cruz on these claims.
    6.     Claims by Jose Manuel Uribe and Jose Manuel Uribe Jr. against
    Officer Cruz.
    Jose Manuel Uribe and Jose Manuel Uribe Jr. sued Officer Cruz, claiming
    that he sprayed them with pepper spray. Officer Cruz moved for summary
    judgment based on qualified immunity. The district court denied Officer Cruz’s
    motion, concluding that “a jury could reasonably find on the facts that Cruz’s
    spraying of plaintiffs was done to cause harm.” District Court Opinion at 62.
    Officer Cruz responds with the same two arguments made and rejected above,
    namely that the district court erred in considering the affidavit Jose Manuel Uribe
    filed because his affidavit conflicted with his earlier interrogatory answers, and that
    using pepper spray on individuals does not violate clearly established constitutional
    norms. We again reject those arguments, the first because we lack jurisdiction, see
    supra at 12-16, and the second because it is clearly established that assaulting
    individuals without provocation is unconstitutional. Lewis, 
    523 U.S. at 849
    .
    Accordingly, we affirm the district court’s denial of summary judgment to Officer
    Cruz on these claims.
    7.     Claims by Lisbeth Moreno and Diego Torres against Officer DeCianni.
    Lisbeth Moreno and Diego Torres sued Officer DeCianni, claiming Officer
    DeCianni sprayed them with pepper spray. The district court summarized the
    allegations as follows: Lisbeth Moreno alleged that Officer DeCianni sprayed her,
    and Diego Torres alleged that Officer DeCianni sprayed him and told him to “move
    the f[–] out of the way, you little brat.” District Court Opinion at 88. Officer
    DeCianni moved for summary judgment based on qualified immunity, and the
    Nos. 05-4278 & 05-4590                                                         Page 28
    district court denied that motion, concluding “that a jury could reasonably find from
    the evidence that DeCianni’s alleged conduct shocked the conscience because
    DeCianni either intended to cause these plaintiffs harm or was deliberately
    indifferent to the risk of causing them harm.” District Court Opinion at 90. On
    appeal, Officer DeCianni incorporates the same arguments for reversal as
    considered and rejected above. And we too incorporate our above analysis and hold
    that we lack jurisdiction to consider whether the district court erred in considering
    later-filed affidavits and that qualified immunity based on the sparse facts
    undisputedly known at this time is inappropriate. See supra at 12-16; 70-71.
    Therefore, we affirm the district court’s denial of summary judgment to Officer
    DeCianni on these claims.
    8.     Claim by Ismael Torres against Officer Peslak.
    Ismael Torres sued Officer Peslak, claiming that Officer Peslak sprayed him
    with pepper spray in his eyes. Officer Peslak sought summary judgment based on
    qualified immunity on this claim, but the district court denied the motion,
    concluding that “a jury could reasonably find from the evidence that Peslak’s
    alleged conduct shocked the conscience because Peslak either intended to cause
    [Ismael Torres] harm or was deliberately indifferent to the risk of causing [him]
    harm.” District Court Opinion at 85. On appeal, Officer Peslak also duplicates the
    arguments made and rejected above. For the same reasons, we conclude that we
    lack jurisdiction to consider whether the district court improperly considered Ismael
    Torres’ later-filed (and allegedly contradictory) affidavit. See supra at 12-16. And
    based on the facts as set forth by the district court, Officer Peslak is not entitled to
    qualified immunity because a reasonable officer would know that it is
    unconstitutional to spray someone with pepper spray, without any justification. See
    supra at 70-71. Therefore, we affirm the district court’s denial of summary
    judgment on Ismael Torres’s claim against Officer Peslak.
    9.     Jesus Uribe’s Claim against Sergeant Krummick.
    Jesus Uribe alleged that Sergeant Krummick used excessive force by pushing
    him inside the Duran house. Uribe also claimed that while inside the house he saw
    pepper spray come from underneath the door, but Uribe did not claim any injury
    from the pepper spray, and he does not point to any evidence that Sergeant
    Krummick discharged the pepper spray. Thus, Uribe’s sole claim of excessive force
    against Sergeant Krummick is based on the officer’s push.
    Sergeant Krummick argued that he is entitled to qualified immunity on this
    claim, but the district court denied Sergeant Krummick’s motion, concluding that
    Nos. 05-4278 & 05-4590                                                          Page 29
    “it was clearly established that ‘police officers do not have the right to shove, push,
    or otherwise assault innocent citizens without any provocation whatsoever.”
    District Court Opinion at 67 (quoting Clash, 
    77 F.3d at 1048
    ). The district court
    further concluded that under Uribe’s version of the facts, “there was no reason for
    Sergeant Krummick to believe that pushing Jesus Uribe into the house was
    justified.” District Court Opinion at 67.
    We disagree. Unlike the claims made by Graciela and Kassandra Torres that
    they were pushed into a fence or to the ground, under the facts as found to exist by
    the district court, Sergeant Krummick pushed Jesus Uribe into the house. Under
    the circumstances of this case, an officer could reasonably believe that pushing an
    individual into a house was justified by the need to disperse and control a large,
    unruly gathering, in which partygoers outnumbered officers. Significantly, we
    judge reasonableness from the officers’ perspective at the time and not with twenty-
    twenty hindsight. In this case, as the district court set forth, Sergeant Krummick
    was one of the later officers to arrive on the scene, and he arrived on the scene only
    after back-up officers radioed the dispatcher to send a supervisor and additional
    officers because people were “getting unruly.” District Court Opinion at 3. By the
    time Sergeant Krummick arrived there were approximately eighty to ninety people
    at the party, and there were several verbal confrontations occurring between
    officers and party guests. District Court Opinion at 3. Under these circumstances,
    it was reasonable for an officer to attempt to expeditiously corral the crowd by
    pushing members of the crowd into the house. Or at a minimum, given the lack of
    analogous case law, it was not clearly established that pushing an individual under
    the circumstances known at the time to Sergeant Krummick violated clearly
    established constitutional norms. Accordingly, Officer Krummick was entitled to
    summary judgment on Jesus Uribe’s excessive force claim and we reverse the
    district court.
    10.    Graciela Pineda’s claim against Officer Gross.
    Plaintiff Graciela Pineda sued Officer Gross claiming that she violated her
    constitutional rights by spraying her with pepper spray without justification.
    Unlike the plaintiffs inside the house, Pineda was not “seized” within the meaning
    of the Fourth Amendment, and thus her claim is analyzed under the “shocks the
    conscience” standard of the Fourteenth Amendment. Lewis, 
    523 U.S. at 846-47
    .
    Applying that standard, the district court denied Officer Gross qualified immunity,
    concluding that a reasonable jury could find that she had sprayed Pineda in order to
    cause harm.
    Nos. 05-4278 & 05-4590                                                          Page 30
    On appeal, Officer Gross’s sole contention is that Graciela Pineda “has not
    cited to any case that would show that spraying pepper spray in and of itself
    constitutes excessive force.” Appellant Brief at 42. However, as this court has
    explained before, “[i]t would create perverse incentives indeed if a qualified
    immunity defense could succeed against those types of claims that have not
    previously arisen because the behavior alleged is so egregious that no like case is on
    the books. . . . The easiest cases don’t even arise.” McDonald by McDonald v.
    Haskins, 
    966 F.2d 292
    , 295 (7th Cir. 1992) (internal quotations omitted). Thus,
    defendants cannot claim qualified immunity merely because another case is not on
    all fours with their situation. Rather, the question is whether the law provided the
    defendant with fair notice that the conduct was unconstitutional. Coady v. Steil,
    
    187 F.3d 727
    , 734 (7th Cir. 1999). Lewis provided just such warning, informing
    officers that “conduct intended to injure in some way unjustifiable by any
    government interest” shocks the conscience. Lewis, 
    523 U.S. at 849
    . While it may
    well be that the facts that come out later show some justification for Officer Gross’s
    alleged spraying of Graciela Pineda, the facts as set forth by the district court do
    not support such a claim by Officer Gross. See e.g. Jackson v. City of Bremerton,
    
    268 F.3d 646
    , 652-53 (9th Cir. 2001) (holding that use of pepper spray was
    reasonable given individual’s active interference with officers); Wagner v. Bay City,
    Texas, 
    227 F.3d 316
    , 324 (5th Cir. 2000) (holding that use of pepper spray was
    reasonable where individual was resisting arrest); Monday v. Oullette, 
    118 F.3d 1099
    , 1104-05 (6th Cir. 1997) (holding that use of pepper spray was reasonable
    where officer warned that he would discharge it if the individual did not cooperate).
    Accordingly, at this stage we conclude that Officer Gross was not entitled to
    qualified immunity and we affirm the district court’s denial of summary judgment
    on this claim against Officer Gross.
    11.    Maria Alicia Moreno’s claim against Officer Gross.
    Plaintiff Moreno also sued Officer Gross, arguing that Officer Gross violated
    her constitutional rights by indirectly spraying her with pepper spray.16 Moreno
    16
    The district court noted that “[i]n her answer to interrogatories, Maria
    Alicia Moreno identified Officers Peslak and Gross as having sprayed her with
    pepper spray. However, in her affidavit, Moreno identifies only Peslak as having
    sprayed her directly, and states that in the yard, she was not sprayed directly but
    merely felt the effects of pepper spray indirectly. It does not appear that when
    deposed, Moreno identified Gross as having sprayed her directly. Accordingly, we
    will consider Moreno’s prior allegation that Gross sprayed her directly as having
    (continued...)
    Nos. 05-4278 & 05-4590                                                         Page 31
    further alleged that when she attempted to enter the garage, Officer Gross pulled
    her away, ordering Moreno to remain in the backyard.
    As with Pineda’s claim against Officer Gross, Moreno’s claim based on the
    pepper spraying is analyzed under the Fourteenth Amendment’s “shocks the
    conscience” standard. Lewis, 
    523 U.S. at 846-47
    . Applying that standard, the
    district court concluded that “a jury could reasonably find on these facts that
    Gross’s conduct was done to cause harm.” District Court Opinion at 60. We
    disagree. As the district court explained, Moreno’s claim was that she felt the ill
    effects of pepper spray indirectly. Thus, there is no evidence that Officer Gross
    intended to cause harm to Moreno, and thus no evidence that Officer Gross’ conduct
    violated the Fourteenth Amendment. As to the claim that Officer Gross “pulled”
    Moreno when she attempted to enter the garage, that conduct was justified under
    the facts as set forth by the district court, namely, the officers were faced with an
    escalating situation in which partygoers outnumbered officers. It was reasonable
    for an officer under these circumstances to believe it was necessary to pull someone
    in the crowd so as to prevent them from entering a garage, which could have tools
    or other items that could be used as weapons. Accordingly, Officer Gross did not
    violate Moreno’s constitutional rights. Alternatively, Officer Gross was entitled to
    qualified immunity on Moreno’s claims. Therefore, we reverse the district court’s
    denial of summary judgment to defendant Officer Gross on Maria Alicia Moreno’s
    claim.
    12.    Adolfo Duran’s claim against Officer McMahon.
    Adolfo Duran sued Officer McMahon, claiming Officer McMahon sprayed him
    with pepper spray. The district court noted that Officer McMahon admits that he
    sprayed Adolfo Duran and that the allegations were thus sufficient to create a
    genuine issue of fact on Adolfo’s excessive force claim. Accordingly, the district court
    denied Officer McMahon qualified immunity.
    On appeal, Officer McMahon argues that it is not even clear that he sprayed
    Adolfo Duran, but that if he did, he did so because Adolfo Duran was pushing him.
    Officer McMahon then argues that “[s]praying pepper spray at someone who is
    pushing him is not in and of itself a malicious act and there is no evidence
    McMahon intended to hurt Adolfo Duran.” Appellant Brief at 43. Although we
    would agree that an officer is entitled to qualified immunity if the claim is that he
    16
    (...continued)
    been abandoned.” District Court Opinion at 59.
    Nos. 05-4278 & 05-4590                                                         Page 32
    pepper-sprayed an individual who pushed him in the midst of the officer attempting
    to control a large crowd, the problem for Officer McMahon is that our review is
    limited on interlocutory appeal. In this case, the district court noted only that
    Officer McMahon admitted to spraying Adolfo Duran and did not set forth any facts
    indicating that Adolfo Duran pushed Officer McMahon. Given our limited review,
    we must affirm then the district court’s denial of summary judgment based on
    qualified immunity because under the district court’s version of the facts, Officer
    McMahon sprayed Adolfo Duran with pepper spray without justification. Lewis,
    
    523 U.S. at 849
    .
    III.
    As explained above, this court lacks jurisdiction to consider the defendants’
    challenges to the district court’s reliance on later-filed affidavits. However, we have
    jurisdiction to consider the purely legal question of whether the facts, as set forth by
    the district court, are sufficient to establish a violation of clearly established
    constitutional norms. On the legal questions, we AFFIRM, in part, and REVERSE,
    in part, on the claims of qualified immunity. Specifically, we AFFIRM the district
    court’s denial of qualified immunity to: 1) Officers DeCianni and Peslak on the
    claims brought by individuals alleging they were pepper- sprayed while inside the
    Duran house; 2) Officer DeCianni on Gonzalo’s false arrest claim; 3) Officer
    DeCianni on Gonzalo’s excessive force claim; 4) Sergeant Krummick on the claims
    by Amada Duran, Concepcion Duran, Jaime Duran, and Kevin Duran that he
    pepper-sprayed them without justification; 5) Officer DeCianni on the claims by
    Amada Duran, Concepcion Duran, Jaime Duran, Kevin Duran and Alondra Paredes
    that he pepper-sprayed them without justification; 6) Officers Cruz and DeCianni
    on claims by Joel Rico Duran and Jesus Rico Duran that they pepper- sprayed them
    without justification; 7) Officer Vitalo on claims by Raquel Uribe, Florina Pindea,
    and Manuel Uribe Palacios that he pepper-sprayed them without justification; 8)
    Officer McMahon on claims by Graciela and Kassandra Torres that he pushed them
    without any justification; 9) Officer Cruz on claims by Gonzalo Duran Jr. and Julia
    de la Cruz that he pepper-sprayed them without justification; 10) Officer Cruz on
    claims by Jose Manuel Uribe and Jose Manuel Uribe Jr. that he pepper-sprayed
    them without justification; 11) Officer DeCianni on claims by Lisbeth Moreno and
    Diego Torres that he pepper-sprayed them without cause; 12) Officer Peslak on
    Ismael Torres’s claim that Officer Peslak pepper-sprayed him without justification;
    13) Officer Gross on Graciela Pineda’s claim that Officer Gross sprayed her with
    pepper spray without justification; 14) Officer McMahon on Adolfo Duran’s claim
    that Officer McMahon pepper-sprayed him without justification. We REVERSE as
    to the district court’s denial of qualified immunity to: 1) Sergeant Krummick and
    Officers Vitalo and Peslak on Gonzalo’s false arrest claim; 2) Sergeant Krummick
    Nos. 05-4278 & 05-4590                                                       Page 33
    and Officers Sirgedas, Vitalo and Peslak on Gonzalo’s excessive force claim; 3)
    Sergeant Krummick on Jesus Uribe’s claim that Sergeant Krummick pushed him
    without justification; 4) Officer Gross on Maria Alicia Moreno’s Claim that Officer
    Gross indirectly sprayed her with pepper spray in violation of her constitutional
    rights and “pulled” her. We REMAND for the district court to enter judgment in
    favor of the above designated defendants and for further proceedings consistent
    with this opinion.
    

Document Info

Docket Number: 05-4278

Citation Numbers: 240 F. App'x 104

Judges: Per Curiam

Filed Date: 5/1/2007

Precedential Status: Non-Precedential

Modified Date: 1/12/2023

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