Judges: Easterbrook
Filed: Apr. 14, 2016
Latest Update: Mar. 02, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 15---2704 JULIAN T. NETTLES---BEY, Plaintiff---Appellee, v. PHILIP WILLIAMS and BRODERICK BURKE, Defendants---Appellants. _ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 11 C 8022 — Joan B. Gottschall, Judge. _ ARGUED MARCH 29, 2016 — DECIDED APRIL 14, 2016 _ Before FLAUM, EASTERBROOK, and SYKES, Circuit Judges. EASTERBROOK, Circuit Judge. Adherents to the Moorish S
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 15---2704 JULIAN T. NETTLES---BEY, Plaintiff---Appellee, v. PHILIP WILLIAMS and BRODERICK BURKE, Defendants---Appellants. _ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 11 C 8022 — Joan B. Gottschall, Judge. _ ARGUED MARCH 29, 2016 — DECIDED APRIL 14, 2016 _ Before FLAUM, EASTERBROOK, and SYKES, Circuit Judges. EASTERBROOK, Circuit Judge. Adherents to the Moorish Sc..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-‐‑2704
JULIAN T. NETTLES-‐‑BEY,
Plaintiff-‐‑Appellee,
v.
PHILIP WILLIAMS and BRODERICK BURKE,
Defendants-‐‑Appellants.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 C 8022 — Joan B. Gottschall, Judge.
____________________
ARGUED MARCH 29, 2016 — DECIDED APRIL 14, 2016
____________________
Before FLAUM, EASTERBROOK, and SYKES, Circuit Judges.
EASTERBROOK, Circuit Judge. Adherents to the Moorish
Science Temple change their surnames to include “-‐‑Bey” or
“-‐‑El”. Julian Nettles-‐‑Bey was born with that surname and
does not hold Moorish beliefs. He contends in this suit under
42 U.S.C. §1983 that two police officers in South Holland, Il-‐‑
linois, assumed from his name that he is a Moor and on that
account arrested him for trespassing, when they would not
have arrested a Christian or an atheist. He maintains that of-‐‑
2 No. 15-‐‑2704
ficial action based on a belief (accurate or not) about a per-‐‑
son’s religion violates the Free Exercise Clause of the First
Amendment, applied to the states through the Equal Protec-‐‑
tion Clause of the Fourteenth Amendment. The district court
denied the arresting officers’ motion for summary judgment,
see 2015 U.S. Dist. LEXIS 101995 (N.D. Ill. Aug. 4, 2015), and
they immediately appealed.
The case is still live in the district court, while 28 U.S.C.
§1291 requires litigants to wait for final decisions before ap-‐‑
pealing. The Supreme Court held in Mitchell v. Forsyth, 472
U.S. 511 (1985), that an order rejecting a defense of qualified
immunity is final in the sense that it conclusively rejects a
defendant’s claim of a right not to be tried, and the arresting
officers have invoked this principle. But the Supreme Court
has also held that an appeal under Mitchell is limited to a
contention that doubt about legal doctrine forecloses an
award of damages. The idea behind qualified immunity is
that public employees who act in the shadow of legal uncer-‐‑
tainty should not be required to pay damages if judges later
resolve that uncertainty against the public actors. See, e.g.,
Reichle v. Howards, 132 S. Ct. 2088 (2012). But when the ar-‐‑
gument concerns what the record shows about the facts, ra-‐‑
ther than whether legal uncertainty dogs public officials who
try to cope with particular situations, the appeal must await
the fully final decision. Johnson v. Jones, 515 U.S. 304 (1995).
Debates about material facts must be resolved at trial, for
public officials no less than other litigants.
The district judge thought that this suit presents a triable
issue not because of any doubt about the law—the judge
deemed it clearly established that an officer may not arrest
someone believed to hold one set of religious beliefs, when
No. 15-‐‑2704 3
in otherwise-‐‑identical circumstances the officer would not
have arrested a person holding a different set of beliefs—but
because of doubt about what reasonable jurors would infer
about why the officers acted as they did.
Nettles-‐‑Bey, who lives in Knoxville, travels around the
country to assist African-‐‑American youths. He usually stays
with the people who invite him to come. Sabeel El-‐‑Bey invit-‐‑
ed Nettles-‐‑Bey to South Holland and offered accommoda-‐‑
tions in what El-‐‑Bey described as his house, at 84 Woodland
Drive. El-‐‑Bey gave Nettles-‐‑Bey a garage-‐‑door opener and
told him to use the door between house and garage. Nettles-‐‑
Bey took the invitation and found Felicia Mohammad,
whom he had already met, staying in the house.
What Nettles-‐‑Bey did not know is that El-‐‑Bey was lying.
He was a squatter at 84 Woodland Drive and had no lawful
interest in the house. Adolph Clark, the owner of the proper-‐‑
ty, does not live there, but he happened to stop by while
Nettles-‐‑Bey was present and called the police, reporting the
trespass. On arriving, officers Williams and Burke discov-‐‑
ered not only Nettles-‐‑Bey’s name but also some literature
referring to Moorish Science.
Here is where stories, and potential inferences, diverge.
The officers contend that they take into custody anyone who
is the subject of a trespass complaint, so they arrested Net-‐‑
tles-‐‑Bey as a matter of routine when he could not show any
ownership interest or an invitation by Clark—neither of
which Nettles-‐‑Bey has ever claimed to have. For his part,
Nettles-‐‑Bey says that the arresting officers, and others at the
stationhouse, remarked on his status as a Moor (ignoring his
denials) and congratulated themselves on rounding up an-‐‑
other member of that troublesome sect, which they strongly
4 No. 15-‐‑2704
implied they were trying to drive out of South Holland. The
subject of Nettles-‐‑Bey’s religious beliefs, and Moors’ insou-‐‑
ciance toward property rights, also came up at his trial for
criminal trespass, injected by the arresting officers. (Nettles-‐‑
Bey was acquitted, but that does not affect, one way or an-‐‑
other, the constitutional propriety of his arrest. See Wallace v.
Kato, 549 U.S. 384 (2007).) The district court’s opinion adds
many additional details.
After canvassing the evidence that would be admissible
at a civil trial, the district court concluded that a reasonable
jury could rule either for, or against, Nettles-‐‑Bey on the cen-‐‑
tral issue: Whether the arresting officers would have arrest-‐‑
ed him had they believed him to be a Christian or otherwise
not to hold Moorish beliefs. If the answer is yes, the district
court concluded, then the officers did not violate the Consti-‐‑
tution (for they had probable cause to believe that Nettles-‐‑
Bey was trespassing); but if the answer is no, then the offic-‐‑
ers violated his clearly established rights under the First
Amendment. That’s why the court denied defendants’ mo-‐‑
tion for summary judgment—though it did end the case
against the Village, which does not have a policy of treating
Moors worse than other faiths.
In contesting this ruling on appeal, the officers do not
contend that there is an open issue of constitutional law
about whether public officials may hold a person’s religion
against him when deciding whether to make an arrest. Nor
do they contend that there is an unsettled issue about
whether making an error in determining a person’s religion
permits an arrest, even though acting on the basis of correct
information would be forbidden. Cf. Heffernan v. Paterson,
No. 14–1280 (argued in the Supreme Court on January 19
No. 15-‐‑2704 5
and posing the question whether a demotion because of a
person’s incorrectly perceived political beliefs violates the
First Amendment). What they maintain is that the district
judge misunderstood the facts. They insist that there is no
material dispute about their reasons for arresting Nettles-‐‑
Bey—that any reasonable juror would have to find that they
acted on Clark’s complaint, and for that reason alone.
Appellants’ brief makes it clear that they think that the
district judge got the facts wrong. Their summary of argu-‐‑
ment tells us: “[T]he record is devoid of evidence to support
the inference that religious discrimination led to Plaintiff’s
arrest and detention”. The first caption in the argument sec-‐‑
tion of their brief begins: “The district court erred in con-‐‑
cluding that a triable fact issue existed as to whether the De-‐‑
fendant officers were motivated by discriminatory animus
toward Moors”. From beginning to end, appellants’ brief is
about what the record shows and what inferences a reasona-‐‑
ble juror could draw. That’s the domain of Johnson; appel-‐‑
lants’ line of argument has nothing to do with uncertainty in
federal law.
Appellants’ reply brief tells us that Johnson is irrelevant.
They observe that whether to grant summary judgment is a
question of law, at least in the sense that a district judge does
not make any findings of fact (but must take matters in the
light most favorable to the party opposing the motion) and
that a court of appeals decides without deferring to the dis-‐‑
trict court’s view. They add that immunity likewise is about
questions of law. It follows, they believe, that they are enti-‐‑
tled to contend in a pre-‐‑trial qualified-‐‑immunity appeal that
the district judge erred in evaluating the record and that, as
a matter of law, they are entitled to immediate decision in
6 No. 15-‐‑2704
their favor. If that is right, however, then Johnson itself is
wrong.
The question posed by the Supreme Court for qualified-‐‑
immunity appeals is whether legal uncertainty affected the
primary conduct of which the defendants are accused. That’s
the qualified-‐‑immunity issue: Whether it is clearly estab-‐‑
lished that federal law (statutory or constitutional) forbade
the public employees to act as they did. Johnson holds that,
when addressing this question about the propriety of the de-‐‑
fendants’ behavior, the court of appeals must accept as given
the district court’s reading of the record. If the district judge
concludes that a reasonable jury could resolve a particular
factual dispute in the plaintiff’s favor, the court of appeals
must address the question about legal uncertainty on that
understanding.
Appellants insist that Scott v. Harris, 550 U.S. 372 (2007),
and Plumhoff v. Rickard, 134 S. Ct. 2012 (2014), modify the
approach of Johnson and entitle them to contest the district
court’s factual understanding. Whether, and if so how far,
that may be true when there is also a dispute about the na-‐‑
ture of and uncertainty in the federal legal principles that
govern the public officials’ primary conduct is an interesting
question, which this court may address in Stinson v. Gauger,
No. 13-‐‑3343 (7th Cir. argued en banc Feb. 9, 2016). Neither
Scott nor Plumhoff allows an appeal whose sole goal is to up-‐‑
set how the district judge understood the record. We have
nothing more to say about Scott and Plumhoff, because there
is no uncertainty at all about the rules of federal law that
govern the question whether police may hold a person’s re-‐‑
ligion against him when deciding whether to make an arrest.
No. 15-‐‑2704 7
That they cannot has been established for a long, long time—
and appellants do not argue otherwise.
They do say that there is uncertainty about a different is-‐‑
sue that they call a dispute of law: Whether standing orders
to police in South Holland require an arrest for criminal
trespass whenever the owner demands. This is not a dispute
about federal law—and it does not concern “law” at all.
There is a factual dispute about whether Clark did demand
Nettles-‐‑Bey’s arrest, and a further dispute about whether of-‐‑
ficers in South Holland are obliged to honor the owner’s
wishes in the face of exculpatory information such as Net-‐‑
tles-‐‑Bey’s contention that he was present at the invitation of
someone he honestly (and reasonably) thought to be the
owner. The chief of police himself testified by deposition
that officers have discretion. These are among the issues that
may be explored at the impending trial.
The appeal is dismissed for want of jurisdiction.
