In the

United States Court of Appeals
              For the Seventh Circuit

No. 09-3223

M ICHAEL L EVAN,
                                             Plaintiff-Appellee,
                              v.

S TEVEN G EORGE, S ANDRA W ESTERFIELD, AND
C OUNTY OF P EORIA,
                                   Defendants-Appellants.


          Appeal from the United States District Court
                for the Central District of Illinois.
         No. 06-1022—John A. Gorman, Magistrate Judge.



    A RGUED F EBRUARY 11, 2010—D ECIDED A PRIL 28, 2010




 Before K ANNE, W OOD , and H AMILTON, Circuit Judges.
  K ANNE, Circuit Judge. Proceeding in federal court,
Michael Levan accused two Peoria County, Illinois
Sheriff’s Deputies, who were serving as court security
officers, of false arrest and excessive use of force,
allegedly perpetrated during their arrest of Levan for
disorderly conduct. Defendants raised the defense of
qualified immunity before the district court. Upon the
2                                             No. 09-3223

district court’s finding that genuine issues of material
fact existed precluding defendants’ motion for sum-
mary judgment on qualified immunity grounds, defen-
dants took this appeal. Because we lack appellate juris-
diction over this appeal, we dismiss.


                    I. B ACKGROUND
  It is not every day that we are called upon to address
issues stemming from a simple parking violation. But
today is one such day. Michael Levan received a parking
ticket from the City of Peoria. He failed to appear at a
scheduled hearing to contest the ticket. Upon Levan’s
failure to appear, the Assistant Corporate Counsel for
the City of Peoria, Sonni Williams, sought and obtained
a default judgment against Levan. In response, Levan’s
attorney prepared a motion to vacate the default judgment.
  On February 5, 2004, Levan went to the Peoria County
courthouse because he believed there was a hearing
scheduled to address his motion to vacate. His case was
called in courtroom 321. Levan entered the crowded
courtroom and sat down at counsel table next to Assistant
Corporate Counsel Williams. Before the judge took the
bench, the two began to discuss his case.
  Levan informed Williams that he was seeking to
vacate the default judgment, to which she responded
that his motion was not in her file, so it would not be
decided that day. The parties dispute what exactly was
said and the manner in which it was said; however, at
some point, Levan reached for Williams’s file. Williams
No. 09-3223                                             3

told Levan not to touch her files, but Levan insisted that
the motion was in the file and that he wanted it to be
heard. Williams explained that she had not received a
copy of the motion, so it could not be heard that day.
During the confrontation she threw her hands in the
air and muttered something, but it is unclear precisely
what she said.
  In the course of the altercation and in the absence of
the judge, the bailiff radioed for additional courtroom
security. When the two uniformed courtroom security
officers arrived, the bailiff explained what had happened
and pointed out Levan. Officers Sandra Westerfield
and Steven George then stood directly behind Levan,
observing the interaction. Although whether Levan was
being loud or disruptive is vigorously disputed,
Westerfield stated that when it became clear to her that
the dispute was escalating, she told Levan that he
needed to settle down or he would be arrested for dis-
orderly conduct.
   Levan responded that Westerfield would just have to
arrest him. He stood up and put his left hand behind his
back, where Westerfield cuffed it. Rather than put his
right hand behind his back, however, Levan either raised
it over his head or pulled it back. While Levan claims
he intended no threat by the movement, Officer George
interpreted the movement as threatening, thinking
that Levan intended to strike Williams. George grabbed
Levan’s right arm and brought it down to be hand-
cuffed by Westerfield.
  Both officers then claim that Levan continued to resist
after being handcuffed, prompting George to remove
4                                             No. 09-3223

Levan’s glasses and administer one dose of pepper spray
to Levan’s face. Eventually Levan was escorted from
the courtroom to a holding cell.
  Levan was later charged with disorderly conduct. Levan
did not testify at his trial, although in closing, Levan’s
counsel made statements alluding to the fact that Levan
knew his behavior was wrong, he accepted his punish-
ment, and he wanted to forget the incident. Levan was
acquitted of the charges.
  Levan subsequently filed a complaint in federal court
against Williams; Officers George, Westerfield, and
Randy Weber (who was later dismissed from the case);
the City of Peoria; and the County of Peoria. Levan
claimed various violations, including false arrest and
excessive use of force in violation of the Fourth Amend-
ment, malicious prosecution in violation of the Fifth
Amendment, deprivation of access to courts in violation
of the Sixth Amendment, and a claim against the county
for indemnification of the court security officers. The
Fifth and Sixth Amendment claims were dismissed, so
all that remains are the Fourth Amendment claims and
the claim for indemnification.
  The magistrate judge granted summary judgment for
the defendant City and for Williams, but denied qualified
immunity to defendants George, Westerfield, and the
County, finding that genuine issues of material fact
precluded a qualified immunity determination at the
summary judgment stage of the proceedings. Defendants
appealed. We now dismiss their appeal for want of ap-
pellate jurisdiction.
No. 09-3223                                              5

                      II. A NALYSIS
  Ordinarily an appeal can be taken only from a final
judgment of the district courts. 28 U.S.C. § 1291. A denial
of summary judgment when qualified immunity is the
defense can be an immediately appealable final decision,
Mitchell v. Forsyth, 

, 530 (1985); Wernsing. v.
Thompson, 

, 741 (7th Cir. 2005), which we
review de novo, 

. Under the
collateral order doctrine, a denial of qualified immunity
can be properly appealable as a final decision because
improperly subjecting a governmental defendant to suit
is the harm in and of itself. 

(“The entitlement [to qualified immunity] is an immunity
from suit rather than a mere defense to liability; and like
an absolute immunity, it is effectively lost if a case is
erroneously permitted to go to trial.”).
  But just because an order denying a motion to dismiss
on qualified immunity grounds is generally considered
a final decision, it does not mean that the right to
appeal that order is unlimited. If the denial of qualified
immunity turns on factual rather than legal questions, the
denial is not properly subject to appellate jurisdiction
under the collateral order doctrine because the decision
is not “final.” Johnson v. Jones, 

, 313-18
(1995); 

.
  Before we reach the primary contention in this case,
however, we must first address whether the district
court’s denial of summary judgment was in fact a denial
of qualified immunity. We are faced with this question
because in deciding defendants’ summary judgment
6                                               No. 09-3223

motion, the district court never used the term “qualified
immunity.”
   We agree with defendants that the court’s decision
on probable cause amounted to a rejection of their
qualified immunity defense. If the undisputed facts
demonstrated that the officers had probable cause to
arrest Levan, then he could not prevail on his claim of
wrongful arrest; the officers would be entitled to
prevail on the merits, as well as on the first element of
the qualified immunity defense. Even if the undisputed
facts showed that the officers had made a reasonable
error when they arrested Levan, qualified immunity
would be available, though not a judgment on the merits.
Gonzalez v. City of Elgin, 

, 540 (7th Cir. 2009)
(“Accordingly, qualified immunity is an available
defense for ‘officers who make a reasonable error in
determining whether there is probable cause to arrest an
individual.’ ” (quoting Chelios v. Heavener, 

,
691 (7th Cir. 2008))). Here, the district court found that
there were genuine issues of material fact with respect
to both the existence of probable cause and whether
Levan acted in an unruly manner before, during, and
after his arrest. Based on the former finding, the court
denied qualified immunity on the wrongful arrest
claim; based on the latter finding, it denied qualified
immunity on the excessive force claim. The next question
is whether those rulings are properly before this court.
  The Johnson case (which also arose in Illinois) involved
a relatively analogous issue. In that case, the district
court denied the officers’ summary judgment motions
No. 09-3223                                               7

based on qualified immunity because genuine issues of
material fact existed regarding whether the officers were
the same ones involved in the 

.
This court dismissed the officers’ appeal on the grounds
that we had no appellate jurisdiction to determine
whether the record raised a genuine issue of material
fact. 

In affirming our determination that the
lower court’s denial was not a “final decision,” the Su-
preme Court delineated the boundaries of appeals based
on qualified immunity. 

   As the Court explained, the rationale behind limiting
immediately appealable qualified immunity questions
to those involving only legal issues is threefold. First, as
the precedential case for qualified immunity, Mitchell
limited its holding to appeals challenging only the
purely legal issue of whether the law was clearly estab-
lished; it does not allow appellate courts to examine the
district courts’ conclusions of what factual issues are
“genuine” for purposes of summary judgment deter-
minations. 

Second, the only reason qualified
immunity decisions can be brought within the realm of
§ 1291’s “final decision” requirement is that the decisions
being immediately appealed “involve[] issues signifi-
cantly different from those that underlie the plaintiff’s
basic case.” 

If the legal issue being ap-
pealed is not significantly different than the factual
issues underlying the claim, this separability require-
ment will be nearly impossible to satisfy. 

competing interests underlying questions of finality
weigh in favor of finding that “ ‘[i]mmunity appeals . . .
interfere less with the final judgment rule if they [are]
8                                                 No. 09-3223

limited to cases presenting neat abstract issues of law.’ ” 

(quoting 5A Charles Alan Wright, Arthur R. Miller,
& Edward H. Cooper, Federal Practice and Procedure
§ 3914.10, at 664 (2d ed. 1992)).
  We think the case at hand falls squarely within
Johnson’s parameters. It is obvious to us that the separ-
ability requirement is very clearly lacking here. The
magistrate judge denied defendants’ claim of qualified
immunity on the grounds that genuine issues of material
fact existed with regard to whether Officers George
and Westerfield had probable cause to arrest Levan, and
whether Officer George had probable cause to use
force. Although at oral argument defendants’ counsel
attempted to distinguish the factual determinations
from the legal issue of qualified immunity, we find it
nearly impossible to sever the two questions. Instead, we
think it readily apparent that the question of qualified
immunity turns on genuine issues of material fact. As
Justice Breyer wrote in Johnson, when “a defendant
simply wants to appeal a district court’s determination
that the evidence is sufficient to permit a particular
finding of fact . . . it will often prove difficult to find
any such separate question . . . .” 

That admoni-
tion rings true here.


                      III. C ONCLUSION
    Because we lack jurisdiction, the appeal is D ISMISSED.



                            4-28-10