In the

United States Court of Appeals
                For the Seventh Circuit

No. 12-2934

M IGUEL G UTIERREZ,
                                                   Plaintiff-Appellee,
                                  v.

M ICHAEL R. K ERMON,
                                               Defendant-Appellant.


             Appeal from the United States District Court
      for the Southern District of Indiana, Indianapolis Division.
      No. 1:11-cv-0185-TWP-DML—Tanya Walton Pratt, Judge.



      A RGUED JANUARY 17, 2013—D ECIDED JULY 12, 2013




 Before M ANION and T INDER, Circuit Judges, and L EE,
District Judge. Œ
  T INDER, Circuit Judge. Miguel Gutierrez brought this
action under 42 U.S.C. § 1983 against Indianapolis Metro-
politan Police Officer Michael R. Kermon (and others not
involved in this appeal), alleging, among other things, that


Œ
   The Honorable John Z. Lee of the Northern District of
Illinois, sitting by designation.
2                                              No. 12-2934

Kermon trampled his fourth amendment rights by
seizing him without reasonable suspicion or probable
cause. Officer Kermon moved for summary judgment,
arguing that he had not violated Gutierrez’s rights or, if
he had, that he was nevertheless entitled to qualified
immunity. The district judge concluded that Kermon
had reasonable suspicion to make an investigative de-
tention but that genuine issues of material fact pre-
cluded a finding of qualified immunity on the issue of
probable cause. Officer Kermon brought this inter-
locutory appeal challenging the district court’s denial
of qualified immunity on the issue of probable cause.
Because Kermon’s argument depends on a disputed
fact, we dismiss this appeal for want of jurisdiction.


                             I
  The parties agree that shortly before 10 p.m. on March 8,
2009, Officer Kermon arrested Gutierrez and charged
him with public intoxication and resisting arrest under
Indiana law, but they offer drastically different narra-
tives concerning almost all other events of that evening.
According to Gutierrez, he was walking home from
work, minding his own business, when Officer Kermon,
who never identified himself as a police officer, stopped
him at gunpoint, pepper sprayed him, placed him in
handcuffs, delivered a few gratuitous kicks to his torso,
and directed a racially derogatory comment at him.
Officer Kermon, on the other hand, says that Gutierrez
was a belligerent drunkard who was unsteady on his feet,
yelled at Kermon, assumed an aggressive fighting stance
No. 12-2934                                                   3

as Kermon approached to ask him a question, and
then actively resisted being placed in handcuffs. Not-
withstanding these drastically different accounts, given
the posture of this appeal, we must view the facts as
assumed by the district court when it denied summary
judgment or as asserted by Gutierrez, the nonmovant.
See, e.g., White v. Gerardot, 

, 833 (7th Cir. 2007).
  Around 9:30 p.m. on the night of the arrest, Gutierrez,
a commercial truck driver, began walking toward his
home after completing maintenance work on his truck.
See Appellee’s App. at 74, 126, 128, 130. Gutierrez was
wearing his dirty work clothes, had a somewhat
disheveled appearance, and had irritated eyes due to
contact with debris as he worked. 

85, 114. It was
dark outside and Gutierrez lived in a dangerous, high-
crime area, so before setting off toward home he armed
himself with a golf club to fend off potential muggers. 

25.
  Meanwhile, around 9:40 p.m., Officer Kermon re-
sponded to a dispatch report that two African-American
men were chasing and trying to fight a third individual
in front of a house in Gutierrez’s neighborhood. 

116. Kermon approached the house in his marked
squad car, creeping slowly down the street with his
headlights off because he was unsure of what dangers, if
any, were lurking, and at some point he observed
Gutierrez walking on the sidewalk near the entryway of
the house. 

29-30, 79, 81, 113, 116; Appellant’s
Supp. App. at 47-48, 62-63.
  Gutierrez observed a vehicle (not Kermon’s) with its
headlights on parked along the west side of the street
4                                                  No. 12-2934

facing him, and to avoid any potential trouble he
decided to cross over to the east side of the street. 

23, 25. As he crossed the street, Gutierrez observed a
car creeping slowing toward him, at which point he
paused, turned around, and returned to the sidewalk
on the west side of the street. 

Unbeknownst
to Gutierrez, the car he had observed approaching was
Officer Kermon’s squad car; Gutierrez could not see
that the car was a police car because it was dark outside,
the squad car’s headlights were off, and a row of cars
parked along the street partially obstructed his view. 

18, 21-25.
  The following events unfolded rapidly. Officer Kermon
could tell that Gutierrez was not African-American,
hence not one of the two suspected assailants mentioned
in the dispatch report, but believing that Gutierrez may
have been the victim of the reported incident, Kermon
stopped his car, exited, and yelled out to Gutierrez,
“Hey, you, stop right there! Hey, you, stop!” 

83,
113, 116; Appellant’s Supp. App. at 64-65. Though he
heard these statements, Gutierrez continued walking
because he did not recognize the voice and did not know
Kermon was a police officer (it is undisputed that Kermon
never identified himself as such and never activated
the emergency lights on his squad car). Appellee’s App.
at 26-27, 33-34. Officer Kermon began approaching
Gutierrez, at which point he observed that Gutierrez’s
clothes were dirty and disheveled, that his hair was in
disarray (or as Kermon described it, “not neatly combed”),
that he appeared agitated, and that he was carrying a
golf club. Appellant’s Supp. App. at 66-67. (Officer Kermon
No. 12-2934                                                  5

testified that Gutierrez was animated and aggressive
and also that he was swaying and unsteady, 

93, but Gutierrez denies this.)
  Because Gutierrez had not complied with his com-
mands, Officer Kermon unholstered his gun, ran in front
of Gutierrez, and stopped him at gunpoint while shining
a flashlight in his face. 

48-49, 67-69;
Appellee’s App. at 26-27, 30-31, 87-88. Officer Kermon
ordered Gutierrez to get on the ground, to raise his
hands, and to drop the golf club. Appellee’s App. at 27, 32-
33, 114, 116. Gutierrez, still not aware that he was being
confronted by a police officer, initially hesitated. 

35. But then Officer Kermon lowered his flashlight
and Gutierrez finally caught a glimpse of Kermon’s badge
and uniform; Gutierrez immediately discarded the golf
club. 

Appellant’s Supp. App. at 46-49. As
Gutierrez tossed the golf club aside, he began pointing
toward his house and saying, “Hey, what’s going on?
I live right there.” Appellee’s App. at 28. But before
Gutierrez could say anything else, Officer Kermon
sprayed him in the face with pepper spray. 

It
was also around this time, after the golf club had been
discarded but before the pepper spray had been
deployed, that Kermon observed that Gutierrez’s eyes
were red and glossy. See 

  Gutierrez was handcuffed with the help of a second
officer that had arrived on scene. 

Officer
Kermon then gratuitously kicked Gutierrez in the
abdomen twice, and when Gutierrez asked whether
Kermon could get away with it, Officer Kermon allegedly
6                                              No. 12-2934

said, “Of course, I can do whatever I want to you, you
filthy Mexican.” 

49-50. Gutierrez was then
taken to jail and charged with public intoxication and
resisting arrest.
  The charges were ultimately dropped after a state
magistrate judge ruled that the initial stop of
Gutierrez had been unlawful. Gutierrez subsequently
brought this action under 42 U.S.C. § 1983 against
Officer Kermon and others (though this appeal concerns
only Officer Kermon), asserting several federal and sup-
plemental state-law claims. As relevant here, Gutierrez
alleged that Officer Kermon violated the Fourth Amend-
ment by seizing him without reasonable suspicion
in violation of Terry v. Ohio, 

(1968) (“Terry
claim”), and without probable cause (“false-arrest claim”).
  Officer Kermon moved for summary judgment on the
grounds that he had not violated Gutierrez’s rights and,
at the very least, that he was entitled to qualified immu-
nity. The district court granted the motion in part and
denied it in part. Gutierrez v. City of Indianapolis, 

, 1001 (S.D. Ind. 2012). The court granted
summary judgment for Officer Kermon on Gutierrez’s
Terry claim, concluding that Kermon had reasonable
suspicion to make an investigative stop because, from
his viewpoint, Gutierrez was carrying a golf club,
appeared agitated, refused to obey Kermon’s commands,
and was near the residence to which Officer Kermon had
No. 12-2934                                                      7

been dispatched.1 

Officer Kermon argued



1
   Although it concluded that the initial seizure was justified by
reasonable suspicion, the district court did not consider
whether the initial seizure was “reasonably related in scope to
the circumstances which justified the interference in the first
place.” 

. Even if reasonable suspicion
exists, if an officer uses unreasonably intrusive means to
effectuate a seizure it may be deemed a de facto arrest requiring
probable cause, rather than an investigative detention under
Terry. See, e.g., Dunaway v. New York, 

, 208-
14 (1979); United States v. Ienco, 

, 523-24 (7th Cir.
1999); United States v. Novak, 

, 1351-53 (7th Cir.
1989) (stopping suspects, neither of whom were believed to be
armed and dangerous, at gunpoint exceeded bounds of Terry
and amounted to full-fledged arrest); cf. Ramos v. City of
Chicago, No. 10-3425, 

, at *4 (7th Cir. May 24,
2013) (“The proliferation of cases in this court in which ‘Terry’
stops involve handcuffs and ever-increasing wait times in
police vehicles is disturbing, and we would caution law enforce-
ment officers that the acceptability of handcuffs in some
cases does not signal that the restraint is not a significant
consideration in determining the nature of the stop.”). The
fact that Gutierrez brought a claim of false arrest in addition
to his Terry claim does not necessarily render this an
irrelevant point. The viability of a false-arrest claim turns on
whether there was probable cause to justify the arrest, see, e.g.,
Abbott v. Sangamon County, Ill., 

, 714 (7th Cir. 2013),
and the existence of probable cause depends in large part on
the facts and circumstances known to the officer at the time
of arrest, see Ornelas v. United States, 

, 696 (1996).
Here, it appears that certain observations were made after the
                                                    (continued...)
8                                                  No. 12-2934

that he also had probable cause to arrest for public intoxi-
cation because, at the time of the arrest, he had observed
that Gutierrez had red eyes, had a disheveled ap-
pearance, and was swaying and having trouble main-
taining his balance. 

The district court, though,
found that it could not make a finding of probable
cause because Gutierrez denied swaying or shifting
his weight, did not smell of alcohol, and had not had
time to explain his disheveled appearance and red eyes,
as he had been sprayed immediately with pepper spray.

went on to conclude that these factual dis-
putes also precluded a finding of qualified immunity. 

Officer Kermon appeals the denial of qualified
immunity on the false-arrest claim. (Other claims
remain pending before the district court awaiting trial,
including an excessive-force claim and an equal protec-
tion claim.)


                               II
  The Fourth Amendment prohibits unreasonable sei-
zures. To be deemed reasonable, a warrantless arrest made
in public must be supported by probable cause, United
States v. Watson, 

, 414-24 (1976), and so the


1
  (...continued)
initial seizure, which means that if the initial seizure was the
arrest, and not merely an investigatory detention, then those
observations would not factor into the probable-cause in-
quiry. Given our disposition of this appeal, we need not address
these issues.
No. 12-2934                                                9

existence of probable cause is an absolute defense to
a § 1983 claim for false arrest, Mustafa v. City of Chicago,

, 547 (7th Cir. 2006). (The existence of
probable cause is necessary but not sufficient for an
arrest to be reasonable; the reasonableness of an arrest
depends both on its justification and the manner in which
it was effectuated. See Tennessee v. Garner, 

, 8
(1985).) Probable cause to arrest exists if the totality of
the circumstances known to the officer at the time of the
arrest would warrant a reasonable person in believing
that the arrestee had committed, was committing, or
was about to commit a crime. Abbott v. Sangamon County,
Ill., 

, 714 (7th Cir. 2013); see also Maryland v.
Pringle, 

, 370-71 (2003). It is a practical,
commonsense standard that requires only the type of
fair probability on which reasonable people act. See
Florida v. Harris, 

, 1055-56 (2013); Hanson
v. Dane County, Wis., 

, 338 (7th Cir. 2010).
  Based as it is on probabilities rather than hard cer-
tainties, the probable-cause standard inherently allows
room for reasonable mistakes. Brinegar v. United States,

, 176 (1949). Qualified immunity affords an
even greater level of protection by shielding officers
from “suit for damages if ‘a reasonable officer could
have believed [the arrest] to be lawful, in light of clearly
established law and the information the [arresting]
officers possessed.’ ” Hunter v. Bryant, 

, 227
(1991) (per curiam) (second alteration in original)
(quoting Anderson v. Creighton, 

, 641 (1987));
see also, e.g., Pearson v. Callahan, 

, 231 (2009)
(“The doctrine of qualified immunity protects govern-
10                                                No. 12-2934

ment officials ‘from liability for civil damages insofar
as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable
person would have known.’” (quoting Harlow v.
Fitzgerald, 

, 818 (1982))). In this context, quali-
fied immunity provides shelter for officers who have
“arguable probable cause” to arrest—i.e., those officers
that reasonably but mistakenly believe they have
probable cause. See 

, 723-24;
Humphrey v. Staszak, 

, 725 (7th Cir. 1998).
Though they may appear to be the same, the probable-
cause and arguable-probable-cause inquiries are dif-
ferent. Fleming v. Livingston County, Ill., 

,
880 (7th Cir. 2012). An arrest without probable cause is
a violation of a constitutional right, whereas an arrest
without arguable probable cause is a violation of a
“clearly established” constitutional right. See 

; McComas v. Brickley, 

, 725
(7th Cir. 2012).
  Officer Kermon contends that the district court erred
in denying summary judgment on his defense of
qualified immunity with regard to Gutierrez’s false-
arrest claim. He concedes that many factual disputes
exist, but he argues that there are six “undisputed” facts
that entitle him to qualified immunity notwithstanding
the chaotic state of the record. Those six facts are
(1) Gutierrez’s unsteady gait; (2) his dirty, disheveled
appearance; (3) his possession of a golf club; (4) his ap-
parent agitation; (5) his lack of cooperation; and (6) his
red, watery eyes. Officer Kermon maintains that, on
the basis of these six facts, a reasonable person in his
No. 12-2934                                                 11

position reasonably, even if mistakenly, could have
believed that there was probable cause to arrest
Gutierrez for committing the crime of public intoxication
under Indiana law, see Ind. Code § 7.1-5-1-3. We are
unable to reach the merits of Kermon’s argument
because we lack jurisdiction over this interlocutory appeal.
  As a general matter, the denial of summary judgment
is not appealable because it is not a “final decision” for
purposes of 28 U.S.C. § 1291. Ortiz v. Jordan, 

,
891 (2011). But an order denying qualified immunity on
summary judgment often is immediately appealable on
the basis that it is a final decision on the defendant’s
right not to stand trial and, as such, a collateral order.
Mitchell v. Forsyth, 

, 524-30 (1985); see also
Cohen v. Beneficial Indus. Loan Corp., 

, 546
(1949) (describing narrow class of collateral orders). This
is so even though the defendant will be required to go
to trial on other claims, for the “right to immunity is a
right to immunity from certain claims, not from litiga-
tion in general.” Behrens v. Pelletier, 

, 312
(1996) (emphasis omitted). That said, we do not have
jurisdiction to review an order denying qualified
immunity on summary judgment if the issue on appeal
is whether the record contains sufficient evidence to
create a “genuine” issue of material fact. See Johnson v.
Jones, 

, 313-20 (1995); see also Elliott v. Thomas,

, 341-43 (7th Cir. 1991) (no jurisdiction
over appeal in which officers simply denied that they
injured the plaintiff).
  Gutierrez argues that, under Johnson, we lack jurisdic-
tion over this appeal because the district court denied
12                                               No. 12-2934

summary judgment on the basis that there are genuine
factual disputes between the parties. Gutierrez over-
reads Johnson. A district court’s finding that there are
genuine issues of material fact “does not always
preclude appellate review.” Sallenger v. Oakes, 

, 738 (7th Cir. 2007). The Supreme Court has ex-
plained that the “[d]enial of summary judgment often
includes a determination that there are controverted
issues of material fact, and Johnson surely does not
mean that every such denial of summary judgment is
nonappealable. Johnson held, simply, that determina-
tions of evidentiary sufficiency at summary judgment
are not immediately appealable merely because they
happen to arise in a qualified-immunity case . . . .” 

(internal citation omitted). Thus,
Johnson prohibits us from reviewing “the record to deter-
mine whether the district court erred in finding that a
genuine issue of material fact exists,” Via v. LaGrand, 

, 624 (7th Cir. 2006), and so “we may not make
conclusions about which facts the parties ultimately
might be able to establish at trial,” Leaf v. Shelnutt, 

, 1078 (7th Cir. 2005). But Johnson does not pro-
hibit us from considering the abstract legal question of
whether a given set of undisputed facts demonstrates a
violation of clearly established law. 

; 

. In reviewing this purely
legal question, we take the facts as the district court
assumed them when denying summary judgment,

, or in a light most favorable to
the plaintiff, the nonmovant, Knox v. Smith, 

,
656 (7th Cir. 2003).
No. 12-2934                                             13

  Officer Kermon argues that he is entitled to qualified
immunity notwithstanding the many factual disputes
identified by the district court. At first blush, Kermon’s
position appears to take this case outside the scope
of Johnson. We are, however, troubled by Kermon’s
reliance on Gutierrez’s allegedly unsteady gait as
one of the purportedly “undisputed” facts. Gutierrez
vehemently denies that he was unsteady, and he argues
vociferously that the district court found this to be
a genuine factual dispute. We agree with Gutierrez’s
characterization of the district court’s order.
  One of the reasons the district judge gave in support of
her decision was that there is a factual dispute as to
whether Gutierrez was swaying or unsteady on his feet.
Officer Kermon says he is not challenging this conclu-
sion, but he argues that there is undisputed evidence
that Gutierrez walks with a limp due to a permanent leg
injury suffered some time ago. And, according to
Kermon, the district court found a factual dispute only as
to whether Gutierrez was swaying after being stopped,
not as to whether he walked with an unsteady gait before
he was stopped. Yet a close reading of the district court’s
opinion indicates otherwise. The court explained, “Officer
Kermon observed that Mr. Gutierrez . . . had an issue
with balancing himself as he walked, giving the ap-
pearance that he swayed,” but it found this to be
disputed because Gutierrez “denie[d] that he was
swaying or shifting his weight in front of Officer 

(emphasis added). It is not
apparent from this that the district judge drew the fine
distinction Kermon urges, and we see nothing else in the
14                                              No. 12-2934

district court’s opinion indicating that it assumed
Gutierrez had been walking with an unsteady gait
before being stopped. Indeed, the most natural reading
of the quoted language is that the district court con-
sidered Kermon’s argument on this point and rejected it.
  Kermon fares no better if we presume for the sake
of argument that the district court was simply silent on
the issue, in which case we might have license to engage
in a somewhat limited review of the record. See 

(where a district court does not clearly
state the facts on which it bases its legal determination
“a court of appeals may have to undertake a cumber-
some review of the record to determine what facts
the district court, in the light most favorable to the
nonmoving party, likely assumed”); Washington v.
Haupert, 

, 548-50 (7th Cir. 2007) (explaining
that in certain circumstances it may be appropriate for
an appellate court to examine all undisputed evidence in
the record, even evidence not considered by the district
court); accord Lockridge v. Bd. of Trs. of Univ. of Ark., 

, 1008 (8th Cir. 2003) (en banc); Winfield v. Bass,

, 534-35 (4th Cir. 1997) (en banc).
While Gutierrez testified that he walks with a limp and
occasionally requires a cane, Appellant’s Supp. App. at 32,
there is no indication as to how pronounced a limp he
has or how severe it was on the night of the arrest (and
that he occasionally requires a cane suggests that the
severity of his limp varies). Kermon testified that he
observed Gutierrez walking but did not say that Gutierrez
walked unsteadily. 

65. Thus, to assume that
Gutierrez walked with an unsteady gait that night
No. 12-2934                                               15

would require drawing an inference in Kermon’s
favor, when all inferences must be drawn in Gutierrez’s
favor, see, e.g., Anderson v. Liberty Lobby, Inc., 

, 255 (1986).
  So what does this mean for purposes of our jurisdiction?
In accordance with Johnson, this court has held that an
appellant challenging a district court’s denial of qualified
immunity effectively pleads himself out of court by
interposing disputed factual issues in his argument. See
Viilo v. Eyre, 

, 712 (7th Cir. 2008); see also
Jones v. Clark, 

, 680 (7th Cir. 2011) (“In a
collateral-order appeal . . ., where the defendants say
that they accept the plaintiff’s version of the facts, we
will take them at their word and consider their legal
arguments in that light. If, however, we detect a back-door
effort to contest the facts, we will reject it and dismiss
the appeal for want of jurisdiction.”); cf. Ne. Rural
Electric Membership Corp. v. Wabash Valley Power Ass’n,

, 893 (7th Cir. 2013) (party asserting juris-
diction has burden of establishing it). Even if the
appellant disclaims any attempt to challenge the district
court’s conclusion that genuine factual disputes exist,
we lack jurisdiction when his argument on appeal
depends upon and is inseparable from disputed facts.
See White v. Gerardot, 

, 835-36 (7th Cir. 2007);
McKinney v. Duplain, 

, 688-90 (7th Cir. 2006);
Clash v. Beatty, 

, 1048 (7th Cir. 1996). This is
so because one of the conditions for bringing an appeal
under the collateral-order doctrine is that the appealed
order must be separate from the merits of the case. See

; 

; Levan
16                                           No. 12-2934

v. George, 

, 370 (7th Cir. 2010). Yet we also
have acknowledged that the mere mention of disputed
facts in an otherwise purely legal argument is not fatal,
and we have held accordingly that jurisdiction exists
where the appellant mentions factual disputes but the
legal argument is not dependent on those factual
disputes—i.e., where the legal and factual arguments
are separable. See 

(“[T]he key
inquiry is whether the appellant’s arguments neces-
sarily depend upon disputed facts. If an argument is not
dependent upon disputed facts, the court simply can
disregard mention of the disputed facts and address
the abstract issue of law without running afoul of John-
son.”); see also 

(appellate
jurisdiction existed even where appellants raised
factual issues toward the end of their brief).
  The present case falls close to the hazy line between
appealable and nonappealable orders established by
Johnson. Kermon undoubtedly relies on a disputed fact
throughout his argument, yet he also relies on other,
undisputed facts. It might be argued that we should
simply ignore the disputed fact and consider whether
the truly undisputed facts establish that Kermon is
entitled to qualified immunity. After all, there is no
question that jurisdiction would be proper if Kermon
had brought this appeal claiming that he was entitled
to qualified immunity based solely on those five undis-
puted facts. But Kermon has based his argument on all
six of the purportedly “undisputed” facts, claiming that
all six of those facts considered together gave him
arguable probable cause to arrest Gutierrez for public
No. 12-2934                                                     17

intoxication; he has not argued that if Gutierrez’s
allegedly unsteady gait is indeed disputed he would
nevertheless be entitled to qualified immunity.
  Moreover, it is evident that Kermon’s argument is
entirely dependent on the disputed fact of Gutierrez’s
allegedly unsteady gait because the five remaining facts,
which the district judge found to be truly undisputed,
come nowhere close to establishing arguable probable
cause. At the time of Gutierrez’s arrest, Indiana Code
section 7.1-5-1-3 provided that “[i]t is a Class B misde-
meanor for a person to be in a public place or a place
of public resort in a state of intoxication caused by the
person’s use of alcohol or a controlled substance (as
defined in IC 35-48-1-9).” Moore v. State, 

,
344 (Ind. 2011), superseded by statute, 2012 Ind. Legis. Serv.
P.L. 117-2012, § 1. “Intoxication” essentially means that
a person is under the influence of alcohol and/or a con-
trolled substance to the extent that his thoughts or
actions are impaired or that he has lost normal control
of his faculties. See Ind. Code § 9-13-2-86 2 ; Curtis v.


2
  The public-intoxication statute does not define “state of
intoxication,” but the Indiana Court of Appeals has borrowed
the definition of intoxication from the operating-while-intoxi-
cated statute, see Woodson v. State, 

, 142 (Ind. Ct.
App.), trans. denied, 

(Ind. 2012); Fought v. State,

, 451 (Ind. Ct. App. 2008), and we see no
apparent reason to believe that the Indiana Supreme Court
would disagree with this approach, see ADT Sec. Servs., Inc. v.
Lisle-Woodridge Fire Prot. Dist., 

, 498 (7th Cir. 2012)
                                                     (continued...)
18                                                  No. 12-2934

State, 

, 873-74 (Ind. Ct. App. 2010); see also
Perkins v. State, 

, 841 (Ind. Ct. App. 2004)
(intoxication can be established by showing impair-
ment). There is no litmus test for determining whether a
person meets this definition, but common indicia of
intoxication include “(1) the consumption of [a]
significant amount of alcohol; (2) impaired attention
and reflexes; (3) watery or bloodshot eyes; (4) the odor
of alcohol on the breath; (5) unsteady balance; (6) failure
of field sobriety tests; [and] (7) slurred speech.” Fought
v. State, 

, 451 (Ind. Ct. App. 2008) (citing
Fields v. State, 

, 307 (Ind. Ct. App. 2008)).
These are merely indicia of impairment and not all of
them need to be present for a person to be deemed im-
paired (and thus intoxicated). See, e.g., 

(sufficient evidence for conviction where
defendant smelled of alcohol, had slurred speech, and
was abrasive toward officers, even though he had no
difficulty standing or walking).3


2
  (...continued)
(“In the absence of guiding decisions by the state’s highest
court, we consult and follow the decisions of intermediate
appellate courts unless there is a convincing reason to
predict the state’s highest court would disagree.” (citing Fid.
Union Trust Co. v. Field, 

, 177-78 (1940))).
3
  Of course, an arrest may be supported by probable cause that
the arrestee committed any offense, regardless of which crime
was charged or which crime the officer thought had been
committed, Devenpeck v. Alford, 

, 155 (2004); Abbott,
                                                   (continued...)
No. 12-2934                                                      19

  The five actually undisputed facts—namely, Gutierrez’s
disheveled appearance, possession of a golf club, ap-
parent agitation, lack of cooperation, and red eyes—do
not individually or in the aggregate suggest that


3
  

, and so the existence of arguable probable
cause to arrest for any offense is a sufficient basis for qualified
immunity. But we discuss only public intoxication because
that is the single potential offense that Kermon has identified
either here or below in his qualified-immunity presentation.
See Fox v. Hayes, 

, 837-38 (7th Cir. 2010)
(defendants waived their Devenpeck argument that they had
probable cause to arrest for other crimes by failing to raise
the issue until a reply brief to their motion for a new trial); cf.
Jackson v. Parker, 

, 640 (7th Cir. 2010) (declining
to review § 1983 plaintiff’s unreasonable-detention theory
because the only argument presented to the district court was
his claim for false arrest, so neither the district court nor
the defendants had a fair opportunity to address the
unreasonable-detention theory); Luellen v. City of East Chicago,

, 612 nn.4 & 5 (7th Cir. 2003) (arguments not
raised on appeal are waived). Nor can we imagine any other
criminal charge that Gutierrez’s reported (and undisputed)
behavior could have supported. If there are such offenses,
Kermon should have to suggest them to get the benefit of
qualified immunity. We have repeatedly said that “[j]udges
are not like pigs, hunting for truffles buried in briefs,” United
States v. Dunkel, 

, 956 (7th Cir. 1991) (per curiam), or
in the record, see, e.g., Gross v. Town of Cicero, Ill., 

, 702 (7th Cir. 2010), so it stands to reason that we will not
go truffle hunting through all of the laws applicable in
Indiana to identify an offense to fit Gutierrez’s conduct.
20                                               No. 12-2934

Gutierrez’s thoughts or actions were impaired or that
he had lost normal control of his faculties. Cf. Hirsch v.
Burke, 

, 903 (7th Cir. 1994) (probable cause
of intoxication where arrestee had trouble balancing
himself and appeared incoherent, smelled of alcohol,
had bloodshot eyes, and was unable to state his name
or date of birth); United States v. Krzeminski, 

, 1196 (N.D. Ind. 1995) (probable cause of intoxica-
tion where arrestee smelled of alcohol, inexplicably
had gun sitting in his lap, and acted in an aggressive
manner toward deputy, who had been informed that
at least one occupant of the vehicle was highly intoxi-
cated); Porter v. State, 

, 807 (Ind. 1979)
(probable cause of intoxication where arrestee smelled
of alcohol; was unstable; had watery eyes and slurred
speech; and was uncooperative and hostile toward offi-
cers), disapproved on other grounds by Fleener v. State, 

(Ind. 1980); Hampton v. State, 

, 1079-80 (Ind. Ct. App. 1984) (probable cause of
intoxication where arrestee “appeared unstable on his
feet, could not coherently answer the officers’ questions,
and smelled of alcohol”). The only one of these facts
commonly associated with intoxication is red eyes, but
no reasonable officer could believe that the presence of
red eyes without some form of motor or cognitive im-
pairment is indicative of intoxication. Compare United
States v. Tyler, 

, 411 (7th Cir. 2008) (no reason-
able suspicion of intoxication to stop defendant who
was carrying open container of alcohol on suspicion
of public intoxication because defendant “was not stum-
bling, staggering, wavering, or otherwise unsteady on his
No. 12-2934                                               21

feet[; h]e was not incoherent when [the officers] ap-
proached; his speech was not slurred[;] and his eyes
were not bloodshot”), with United States v. Lenoir, 

, 730 (7th Cir. 2003) (officer had reasonable
suspicion of intoxication to stop defendant in high-
crime area who was walking with an unsteady gait,
carrying two firearms, fled after officer identified
himself and ordered defendant to stop, and had
trouble opening the door of the house into which he
fled). If it were otherwise, then allergy sufferers and
anyone who has recently wept, among others, could be
arrested for public intoxication.
  Of course, certain behavior can be so extreme and
dangerous that it can be inferred for purposes of
probable cause that it resulted from alcohol or drug
impairment, such as erratic driving leading to the loss of
control of a vehicle and a serious crash, e.g., Smith v. Ball
State Univ., 

(7th Cir. 2002); Qian v. Kautz, 

(7th Cir. 1999). This is true even if the basis of
the impairment later proves to be something else. See

(diabetic seizure); 

(subdural hematoma). But Kermon does
not contend that Gutierrez’s observed behavior was of
that extreme or dangerous nature.
  At most, the five truly undisputed facts in the
aggregate rise to the level of reasonable suspicion to
justify a Terry stop so that Officer Kermon could confirm
or dispel his suspicions through some form of reasonable
22                                                     No. 12-2934

investigation.4 But reasonable suspicion is a lower
standard than probable cause. See, e.g., United States v.


4
   Though Kermon contends that his encounter with Gutierrez
began as a Terry stop, it does not appear that he undertook
any type of investigation or even asked Gutierrez any
questions; indeed, when Gutierrez requested a breathalyzer
test Kermon refused to administer one. The lack of any investi-
gation would provide further support for the notion,
discussed briefly in footnote 

, that Kermon’s seizure
of Gutierrez was not a Terry stop that evolved into an arrest
but an arrest from the outset. See, e.g., United States v. White,

, 34 (D.C. Cir. 1981) (explaining that “the
questions, if any, asked” is a factor to consider in whether a
seizure was a Terry stop or an arrest), discussed in United States
v. Serna-Barreto, 

, 967 (7th Cir. 1988); United States v.
Barber, 

, 632 (8th Cir. 1977) (holding that seizure
was an arrest, not a Terry stop, because “[t]he officers’ purpose
in going to the car was admittedly not investigatory; in fact,
they asked no questions of the three occupants. Once [the
first suspect] was secured in the back room of the liquor store,
the officers proceeded directly to the car to arrest all three
occupants.”). Additionally, Kermon’s failure to conduct any
investigation may in and of itself constitute a violation of
state law, see Pittman v. State, 

, 150 (Ind. Ct. App.
2012) (explaining that Ind. Code § 12-23-15-2 requires “an
‘evaluation’ for possible alternate causes (i.e., other than
consumption of alcohol) for behavior that evinces intoxica-
tion and for which the subject will otherwise be transported
to jail”); though whether that is the case would have no
bearing on whether Gutierrez’s clearly established fourth
amendment rights were violated, cf. Virginia v. Moore, 

, 168-76 (2008).
No. 12-2934                                                  23

Sokolow, 

, 7-8 (1989). And no reasonable officer
could have reasonably, even if mistakenly, believed that
these circumstances added up to probable cause that
Gutierrez was committing the crime of public intoxica-
tion. The only way Kermon has a shot of prevailing on
his qualified-immunity argument is if we accept his
version of a disputed fact, because unlike the
undisputed facts alone, adding to the equation the fact
that a person cannot walk steadily may suggest impair-
ment caused by the use of alcohol or controlled substances.
  It is thus clear that Officer Kermon’s entire argument
is dependent upon a disputed fact. Our cases have
given fair warning that an interlocutory appeal will be
dismissed if the argument for qualified immunity is
dependent upon disputed facts. See Jones v. 

; 

; 

; 

; 

;

; accord McKenna v. City
of Royal Oak, 

, 561-62 (6th Cir. 2006). Rather
than accept the district court’s factual assumptions,
Kermon has simply ignored or denied that a factual
dispute exists and built his argument for qualified im-
munity on that disputed fact. See 

(“In denying rather than embracing the facts the district
court held to be sufficiently well-supported to create
jury issues, the defendants have pleaded themselves out
of court.”); 

-37 (no jurisdic-
tion where appellant’s “legal arguments [were] wholly
dependent upon, and inseparable from, his reliance
on disputed facts”). This is in stark contrast to cases
like Jones v. 

, and 

                                            No. 12-2934

738-39, where we found jurisdiction to exist after the
appellants unambiguously conceded in their briefs and
at oral argument that they were proceeding on the facts
assumed by the district court, even though factual
disputes had crept into their respective appeals.


                            III
  Here, the district court found that the issue of whether
Gutierrez was swaying or walking with an unsteady gait
is a genuine factual dispute in need of a jury’s attention.
Officer Kermon’s unabashed reliance on that disputed
fact in support of his plea for qualified immunity de-
prives us of jurisdiction over this interlocutory ap-
peal. We therefore D ISMISS this appeal for want
of jurisdiction.




                          7-12-13