                              In the
 United States Court of Appeals
                For the Seventh Circuit
                           ____________

No. 05-3812
TIMOTHY MCKINNEY, individually and as personal
representative of the Estate of Michael McKinney,
deceased, and LISA MCKINNEY, individually,
                                                 Plaintiffs-Appellees,
                                  v.


ROBERT DUPLAIN, in his individual capacity,
                                               Defendant-Appellant.
                           ____________
             Appeal from the United States District Court
      for the Southern District of Indiana, Indianapolis Division.
                No. 04 C 294—Richard L. Young, Judge.
                           ____________
     ARGUED APRIL 6, 2006 —DECIDED SEPTEMBER 12, 2006
                           ____________


  Before RIPPLE, MANION, and KANNE, Circuit Judges.
  MANION, Circuit Judge. Michael McKinney’s father,
Timothy McKinney, as representative of Michael’s estate,
sued Officer Duplain under 42 U.S.C. § 1983, alleging a
claim of excessive force after Officer Duplain shot and killed
Michael while responding to a 911 burglary-in-progress call.
Officer Duplain moved for summary judgment based on
qualified immunity. The district court denied the motion
2                                               No. 05-3812

and Officer Duplain appeals. We dismiss for lack of jurisdic-
tion.


                             I.
  On Saturday night, November 7, 2003, 21-year-old Ball
State University student Michael McKinney went out
drinking with some college friends. McKinney stayed out
until closing time, leaving the last bar he had visited at
3:00 a.m. At approximately 3:15 a.m., another student, Brent
Archambault, saw McKinney intoxicated and crawling on
his hands and knees on North Street—a street near campus
in an area called “The Village.” McKinney eventually
worked himself up into a sitting position, leaning against a
tree. Archambault approached McKinney, asked if he
needed any help, and offered him a ride home. McKinney
told Archambault to leave him alone, indicating that he was
already at his house. In fact, McKinney was not at home, but
rather in front of the house of widow Jane Poole. One of
McKinney’s friends, Phil Justevice, later surmised that
McKinney thought he was at Justevice’s house, which was
down the block.
   A little while later McKinney made his way from the front
yard to the back of Poole’s home. McKinney then began
banging on her patio door, pulling the door trying to gain
entry. Poole heard the noise, went downstairs, flipped on
the outside light and peeked through the blinds on the
sliding glass door. There she saw McKinney, whom she
later described as “a skinhead, fairly big looking guy.”
McKinney continued to pound on the door and pull on the
handle, seeking entry. Not recognizing McKinney and
fearing for her safety, Poole called Delaware County 911.
The call came in at approximately 3:26 a.m., and a recording
captured the following exchange:
No. 05-3812                                              3

   911:       911, what’s your emergency?
   Poole: Hurry, someone’s pounding, a man’s pounding
          on my back door.
   911:       What’s your address?
   Poole: 1325 W[est] North Street. He’s at the back door,
          he’s pounding really hard.
   911:       Okay. Do you know who it is?
   Poole: No, no!
   911:       Okay, what’s your phone number?
   Poole: 482-7613
   911:       Are you expecting anybody?
   Poole: No, no!
   911:       What’s your name?
   Poole: Jane Poole. Please hurry!
   911:       Okay, we’re on the way, ma’am. Do you know
              what he looks like?
   Poole: No!
   911:       Okay, do you know if it’s a male or not?
   Poole: Yes, yes. He had no hair, white, very white.
   911:       Is he still there?
   Poole: Yes, he’s been pounding.
   911:       Is he saying anything?
   Poole: No! He’s just trying to get in, please!
   911:       We’re on the way, ma’am. How long has he
              been there? Hello? She just hung up on me.
4                                               No. 05-3812

  Unbeknownst to the 911 operator, Poole had hung up to
call her neighbors, Mike and Nancy Ellis. Poole told Mike
Ellis about the situation, but told him not to come over as
she had already called the police. The Ellises then went
to a second-story bedroom window which overlooked
Poole’s backyard. From there, Mike Ellis saw McKinney
move away from Poole’s deck and toward a tree in the
backyard. Mike Ellis noticed McKinney stumble and
testified that he appeared intoxicated. Nancy Ellis also
described McKinney as “very wobbly.”
  Based on the 911 call, the Muncie Police Department
(“MPD”) dispatched officers to “1325 W[est] North on a
burglary in progress.” A few moments later, the MPD
dispatcher reported an “emergency at 1325 West North,”
and then “[f]emale advised there was a subject pounding at
the door. It was a white male with no hair. He’s still pound-
ing at the back door. Female subject just hung up on us.
Trying to make contact back. All units unable to make
contact back to female.”
  The MPD dispatched four officers—25% of its total
available force—to Poole’s home. Additionally, the MPD
requested the assistance of the Ball State University
Police Department (“BSUPD”). Because of the close proxi-
mity of their patrol areas, BSUPD continually monitors
MPD dispatches. Four BSUPD officers responded to the
dispatch: Officers Robert Duplain, Matt Gaither, and Eric
Perkins and their shift supervisor, Corporal David Bell.
  The four BSUPD officers, driving separate vehicles,
arrived at Poole’s residence between 3:26 a.m. and 3:27 a.m.
After arriving, Corporal Bell and Officer Perkins walked
up the east side of the house with their weapons drawn and
Officer Gaither went to check the front of the house. Officer
No. 05-3812                                                5

Duplain, seeing the other areas covered, approached the
backyard from the west side of the house.
  As they approached Poole’s backyard from the east
side, Corporal Bell and Officer Perkins discovered their
access blocked by a six-foot-tall wooden fence that ran from
the southeast corner of Poole’s house, curved around the
backyard, and then joined a detached garage on the south
side. At the same time, Officer Duplain made his way down
a rough, narrow stone walkway along the west side of the
house. Like his fellow officers, Officer Duplain had also
drawn his service weapon.
   When Officer Duplain entered the backyard, he saw
McKinney standing under a tree approximately ten to
twenty feet away. The parties dispute what happened
next. Officer Duplain explained that after entering the
backyard, he began shouting commands at McKinney, al-
though the various witnesses heard different things. Officer
Duplain remembers saying: “Police. Show me your hands.
Get on the ground. Get the f—on the ground. Get on the
ground now.” Mike Ellis heard only the words “Hey hey”
and possibly, “Stop right there.” Nancy Ellis remembered
“Hey, hey.” Poole heard “Hey.” Corporal Bell remembered
hearing shouts similar to what “you would hear a police
officer shout to someone . . . it sounded like lawful verbal
orders, ‘Stop. Get on the ground.’ ” Officer Perkins heard
Officer Duplain say “Get on the ground. Get on the ground.
. . [and] a couple, Get the f—on the ground,” as well as
“Police.”
  While the witnesses all heard different commands, the
Ellises both testified that, from their vantage point next
door, they were able to recognize Officer Duplain as a police
officer. Specifically, Mike Ellis testified that he observed
Officer Duplain wearing a dark uniform, and Nancy Ellis
6                                                 No. 05-3812

noticed an insignia on Duplain’s shoulder. Additionally, the
neighbor to the east of Poole’s house, Donna Winters, stated
that she likewise recognized the individuals approaching
the backyard as police officers.
   Officer Duplain further testified that while he was
shouting commands to McKinney, McKinney showed no
signs of intoxication, but instead turned toward Officer
Duplain until he was “squared up.” Officer Duplain
explained that this took two or three seconds and that
then McKinney suddenly charged him. Officer Duplain
stated that he thought he would have to fight McKinney
if McKinney reached him. According to Officer Duplain,
he feared that McKinney had a weapon or would try to take
his weapon. Officer Duplain testified that he feared for his
life, as well as for the safety of the other officers and Poole.
Officer Duplain explained that when McKinney came
within a few feet of him, he fired his service weapon. As
McKinney continued to advance, Officer Duplain fired
again.
  An autopsy later revealed that Officer Duplain shot
McKinney four times: (1) an entrance gunshot wound just
below the left eye; (2) an entrance gunshot wound to the left
chest that pierced the left and right ventricles of the heart;
(3) an entrance gunshot wound to the left shoulder that
shattered the humerus bone; and (4) an entrance gunshot
wound to the left lateral chest. The autopsy fur-
ther established that the four bullets entered McKinney’s
body at a downward angle from the horizontal plane, and
toxicology results showed that McKinney’s blood alcohol
level was .343.
  The Ellises witnessed the shooting, and both testified that
Officer Duplain did not fire his weapon until a few sec-
onds after McKinney charged, and not until McKinney came
No. 05-3812                                                  7

within a few feet of Officer Duplain. Mike Ellis stated that
McKinney “was running at the officer.” Nancy Ellis ob-
served McKinney “running. He came forward
very assertively, very quickly toward the police officer.”
According to Nancy Ellis, McKinney “leaped toward the
officer. He charged toward the officer.” Mike Ellis also
observed McKinney “lunging toward the officer” with his
left arm out as he got near.
  After hearing the shots, Corporal Bell kicked in the gate at
the south side of Poole’s backyard, entering the backyard
between three to five seconds after the shots were fired. He
saw Officer Duplain standing upright near the west edge of
the concrete patio, with McKinney laying on his side about
three to four feet away. Corporal Bell turned McKinney on
his back and performed CPR until medical assistance
arrived. The MPD officers had also arrived by this time and
by agreement MPD took over the investigation of the
shooting. McKinney was later pronounced dead at Ball
Memorial Hospital.
  A little over three months later, on February 10, 2004,
McKinney’s father, Timothy McKinney, as personal repre-
sentative of his estate, and McKinney’s parents, in their own
capacities, filed a two-count complaint against Officer
Duplain and Ball State Director of Public Safety, Gene
Burton. The McKinneys sued the defendants in
their individual and official capacities. Count I of the
complaint alleged an excessive force claim under 42 U.S.C.
§ 1983 against Officer Duplain, and Count II asserted a
§ 1983 claim against Burton, for allegedly creating and
maintaining policies at Ball State University that exhibited
deliberate indifference to the constitutional rights of persons
at Ball State University. The district court granted the
defendants’ motion to dismiss the official capacity claims as
barred by the Eleventh Amendment.
8                                                     No. 05-3812

  Officer Duplain and Director Burton then filed motions
for summary judgment on the individual capacity claims,
asserting the defense of qualified immunity. In opposing
Officer Duplain’s motion for summary judgment, McKinney
proffered testimony from several experts. Based on these
reports, the Estate argued that McKinney did not charge
Officer Duplain, but instead “McKinney was shot twice
from the back left side while he was standing still. Then,
after he turned and started to fall in the direction of
Duplain, he was shot two more times while he was close to
the ground.” The district court granted Director Burton’s
motion and denied Officer Duplain’s motion. The district
court later granted Officer Duplain’s motion to dismiss
Michael’s parents’ § 1983 claims (the claims they brought in
their own capacities, as opposed to in a representative
capacity on behalf of Michael). Officer Duplain appeals
from the denial of his motion for summary judgment.1


                                II.
  On appeal, Officer Duplain argues that he is entitled to
qualified immunity and that the district court erred in
denying his motion for summary judgment on McKinney’s
§ 1983 claim. Section 1983 provides that
    [e]very person who, under color of any statute, ordi-
    nance, regulation, custom, or usage, of any State or
    Territory or the District of Columbia, subjects, or causes


1
   The only issue on appeal is Officer Duplain’s right to summary
judgment based on qualified immunity. The McKinneys do not
seek review of the district court’s Eleventh Amendment ruling,
its ruling as to Director Burton, or the dismissal of the claims they
brought in their own capacities.
No. 05-3812                                                   9

    to be subjected, any citizen of the United States or other
    person within the jurisdiction thereof to the deprivation
    of any rights, privileges, or immunities secured by the
    Constitution and laws, shall be liable to the party
    injured in an action at law, suit in equity, or other
    proper proceeding for redress. . . .
42 U.S.C. § 1983. Thus, to state a claim for relief under
§ 1983, plaintiffs “must allege: (1) they were deprived of a
right secured by the Constitution or laws of the United
States, and (2) the deprivation was visited upon them by
a person or persons acting under color of state law.” Jones v.
Wilhelm, 425 F.3d 455, 465 (7th Cir. 2005).
  In its complaint, the Estate alleged that Officer Duplain,
while acting under color of state law, violated McKinney’s
constitutional rights by shooting and killing him. Officer
Duplain contends that he is entitled to qualified immunity
for his actions. “The doctrine of qualified immunity
shields government officials against suits arising out of their
exercise of discretionary functions ‘as long as their actions
could reasonably have been thought consistent with the
rights they are alleged to have violated.’ ” Jones, 425 F.3d at
460 (quoting Anderson v. Creighton, 483 U.S. 635, 638 (1987)).
The Supreme Court in Saucier v. Katz, 533 U.S. 194 (2001),
summarized the two-part test for qualified immunity. “First,
a court must decide whether the facts, when viewed in the
light most favorable to the plaintiff, indicate that the
officer’s conduct violated some constitutional right of the
plaintiff.” Jones, 425 F.3d at 460 (citing Saucier, 533 U.S. at
201). If so, the “court must determine whether the constitu-
tional right violated was ‘clearly established’ at the time of
the alleged violation.” Jones, 425 F.3d at 460 (quoting Saucier,
533 U.S. at 201). “Unless the answer to both questions is
10                                              No. 05-3812

‘yes,’ ” a government official is entitled to qualified immu-
nity. Jones, 425 F.3d at 460.
  The first question, then, is whether Officer Duplain’s
shooting of McKinney violated “some constitutional right.”
Id. It is well established that “[a] police officer’s use of
deadly force constitutes a seizure within the meaning of
the Fourth Amendment, and therefore it must be reason-
able.” Scott v. Edinburg, 346 F.3d 752, 755 (7th Cir. 2003).
Deadly force is reasonable if a law enforcement officer “has
probable cause to believe that the suspect poses a threat
of death or serious physical harm to the officer or others
and, whenever possible, warns the suspect before firing.”
Sherrod v. Berry, 856 F.2d 802, 805 (7th Cir. 1988). Thus,
“when an officer believes that a suspect’s actions places
him, his partner, or those in the immediate vicinity in
imminent danger of death or serious bodily injury, the
officer can reasonably exercise the use of deadly force.” Id.
(emphasis deleted). Moreover, “[t]he particular use of
force must be judged from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of
hindsight.” Graham v. Connor, 490 U.S. 386, 396 (1989).
Additionally, the Supreme Court has instructed that “[t]he
calculus of reasonableness must embody allowance for
the fact that police officers are often forced to make split-
second judgments—in circumstances that are tense, uncer-
tain, and rapidly evolving—about the amount of force that
is necessary in a particular situation.” Graham, 490 U.S. at
396-97.
   Officer Duplain argues that he is entitled to qualified
immunity because, given the totality of the circumstances,
it was objectively reasonable for him to use deadly force
against McKinney once McKinney charged him. Specifi-
cally, Officer Duplain points to the fact that dispatch had
No. 05-3812                                                   11

reported a burglary-in-progress, in which 911 had lost
contact with the caller. Officer Duplain further notes
that many burglars are armed and that losing contact with a
caller indicates that an intruder may have entered the house
and attacked the victim. Although that was not the case
here, Officer Duplain did not know that Poole had hung up
to call her neighbors. Additionally, Officer Duplain points
to the number of responding units, showing how seriously
both the MPD and the BSUPD took the call. Finally, Officer
Duplain argues that once McKinney charged him, he had no
choice but to fire, as a hedge prevented him from moving
backwards, and he was separated by a fence from other
officers. Officer Duplain explains that he did not know that
McKinney was unarmed and that even if he had known, he
feared that if McKinney reached him, McKinney may have
turned his service weapon against him.
  McKinney counters that this court lacks jurisdiction to
consider whether Officer Duplain acted reasonably in using
deadly force. Generally speaking, 28 U.S.C. § 1291 does not
confer jurisdiction to review a district court’s denial of
summary judgment. See Jones, 425 F.3d at 466. “However, an
exception to this rule comes into play when a movant
requests summary judgment based on qualified immunity.”
Id. In that circumstance, “[u]nder the collateral order
doctrine the district court’s denial of [a] motion for sum-
mary judgment based on qualified immunity is an immedi-
ately 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). A defendant, though, “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 v. Jones, 515
U.S. 304, 319-20 (1995).
12                                                No. 05-3812

  McKinney claims that, under Johnson, this court lacks
jurisdiction to hear Officer Duplain’s appeal because the
district court denied Officer Duplain summary judg-
ment based on its conclusion that genuine issues of material
fact exist. In support of his position, McKinney points to the
district court’s order which concludes:
     There are genuine issues of material fact as to whether
     it was objectively reasonable for Officer Duplain to use
     deadly force during his encounter with Michael on
     November 8, 2003. First, there is an issue of fact as to
     whether it was reasonable for Officer Duplain to believe
     that the situation he encountered posed a threat of
     serious physical harm to him or to others. The evidence
     reflects that the officers were alerted to the fact that a
     man was knocking on Poole’s back door in an attempt
     to enter her residence. Further, Poole prematurely hung
     up during her 911 call, alerting dispatch to the fact that
     the situation may have escalated. There is also evidence
     to show, however, that Poole lived near The Village, an
     area of the Ball State campus known for its bars. Thus,
     it was not uncommon for intoxicated college students to
     frequent her neighborhood at late hours. Nor was it
     unusual for the BSUP[D] to receive calls involving
     intoxicated individuals, particularly on Saturday nights
     while Ball State was in session. Sergeant Rhonda Clark
     testified that 75-80% of the calls that BSUP[D] receives
     concern intoxicated college students. Second, there is
     conflicting evidence as to whether Officer Duplain
     sufficiently alerted Michael to his presence on the
     scene. . . . Officer Duplain remembers saying, “Police.
     Show me your hands. Get on the ground. Get the f—on
     the ground. Get on the ground now.” Mike Ellis, who
     watched the encounter take place from his second floor
     bedroom, heard him say, “hey, hey” and possibly “stop
No. 05-3812                                                 13

    right there.” Poole, behind her patio doors, only heard
    the word “hey.” Third, Officer Duplain testified that he
    shot at Michael as he charged toward him. This fact is
    contradicted by the forensic evidence submitted by
    Plaintiffs. Indeed, there is even conflicting evidence on
    the sequence of the shots fired. Finally, there is an issue
    of fact as to whether the number of shots fired was
    reasonable under the circumstances.
   Officer Duplain concedes that the district court concluded
that there were four genuine issues of material fact but
argues “[t]hree of the four disputed issues identified by the
Court are clear questions of law,” and that on the fourth
issue, the district court erred in considering the proffered
expert opinions without applying Daubert. Under Johnson,
“[t]he dividing line that separates an immediately
appealable order from a nonappealable one in these pur-
lieus is not always easy to visualize.” Diaz v. Martinez, 112
F.3d 1, 3 (1st Cir. 1997). Therefore, before consider-
ing Officer Duplain’s arguments, we begin with a review of
the Johnson decision.
  In Johnson, the plaintiff, Houston Jones, sued several
policemen, claiming the officers used excessive force
when they arrested him and later beat him at the police
station. Johnson, 515 U.S. at 307. Five officers arrested
Jones or were present when he was booked. The arresting
officers had found Jones lying on the street; the officers
thought Jones was drunk, but, in reality, he had suffered an
insulin seizure. Id. When Jones came to, he was in a hospital
with several broken ribs. Id. Three of the officers moved for
summary judgment, arguing that Jones failed to present
sufficient evidence that they had either beaten him or been
present when others had done so. Id. Jones responded by
pointing to his own deposition testimony in which he swore
14                                                 No. 05-3812

that officers (although he did not identify which ones) had
used excessive force when arresting him and later at the
police station. Id. Jones further pointed to the depositions of
the three officers, all of whom admitted they were present
at the arrest and in or near the booking room when Jones
was there. Id. at 307-08. The district court concluded that
this evidence was sufficient to create a genuine issue of fact
as to whether the three officers stood by and watched the
beating, and if they had done so, that was sufficient to
create liability. Id. at 308. The officers appealed, arguing that
“the denial was wrong because the record contained not a
scintilla of evidence . . . that one or more of them had ever
struck, punched or kicked the plaintiff, or ever observed
anyone doing so.” Id. (internal quotations omitted). This
court refused to consider the officers’ argument, holding
that we lacked appellate jurisdiction to determine whether
the record contained sufficient evidence to raise a “genuine”
issue of fact for trial. The officers appealed to the Supreme
Court. The Supreme Court in Johnson affirmed, holding
“that a defendant, entitled to invoke a qualified immunity
defense, may not appeal a district court’s summary judg-
ment order insofar as that order determines whether or not
the pretrial record sets forth a ‘genuine’ issue of fact for
trial.” Id. at 319.
  The Supreme Court later clarified the scope of Johnson
in Behrens v. Pelletier, 516 U.S. 299 (1996). In Behrens, the
Court explained that “Johnson surely does not mean that
every such denial of summary judgment is nonappealable.”
Id. at 313 (emphasis in original). Rather, the Court ex-
plained, “Johnson held, simply, that determinations of
evidentiary sufficiency at summary judgment are not
immediately appealable merely because they happen to
arise in a qualified-immunity case; if what is at issue in
the sufficiency determination is nothing more than wheth-
No. 05-3812                                                  15

er the evidence could support a finding that particular
conduct occurred, the question decided is not truly ‘separa-
ble’ from the plaintiff’s claim, and hence there is no ‘final
decision.’ . . .” Id. However, the Behrens Court stressed
that “Johnson reaffirmed that summary judgment determina-
tions are appealable when they resolve a dispute concerning
an ‘abstract issu[e] of law’ relating to qualified immunity,
typically, the issue whether the federal right allegedly
infringed was clearly established . . . .” Id. (quoting Johnson,
515 U.S. at 317). The Court in Behrens further emphasized
that “Johnson permits petitioner to claim on appeal that all
of the conduct which the District Court deemed sufficiently
supported for purposes of summary judgment met the
[qualified immunity] standard of objective legal reasonable-
ness.” Id.
   This court considered the scope of Johnson in Leaf v.
Shelnutt, 400 F.3d 1070 (7th Cir. 2005). In Leaf, members of
John Leaf’s family sued, among others, two sheriff’s depu-
ties, alleging they unlawfully searched Leaf’s apartment,
unlawfully seized him, denied Leaf life, liberty and prop-
erty without due process of law, and that Deputy Shelnutt
had used excessive force against Leaf. Id. at 1075-76. The
claims all stemmed from an early morning incident on May
5, 2001, when John Leaf returned home from a night of
drinking. Id. at 1074. He had turned over his keys to a friend
and taken a taxicab home to his apartment at Lake Nora
Arms Apartments. Id. In addition to his car keys, Leaf had
given his friend his apartment key and thus had to force his
way into his own apartment. Id. Neighbors heard the glass
breaking and went to investigate. Leaf introduced himself
to the other tenants and explained that he lived in the
apartment but did not have his keys. Id. None of the other
tenants had met Leaf before that evening. Id. After talking
briefly with Leaf, they returned to their own apartments. Id.
16                                               No. 05-3812

They later called 911, but hung up before the call was
answered. Id. Deputy Jacobs responded to the incomplete
911 call. Id. When he arrived about 1:20 a.m., the neighbors
explained that they had seen a man breaking a window to
enter an apartment but that he had claimed to be the
occupant of the apartment and that he did not have his
keys. Id. Deputy Jacobs then went to Leaf’s apartment, saw
the patio door open, a rear window broken, and something
pushed up against the front door. Id. After backup arrived,
Deputies Jacobs and Shelnutt entered the apartment with
their guns drawn. Id. at 1075. “The officers searched the
apartment, including the bedroom, where they found Mr.
Leaf lying naked and uncovered on his bed, face up, with
his eyes closed. Mr. Leaf was breathing deeply.” Id. While
Deputy Jacobs stayed in the bedroom watching Leaf,
Deputy Shelnutt searched the remainder of the apartment.
Id. After confirming that no one was hiding in the apart-
ment, Deputy Shelnutt approached Leaf with his gun
drawn. Id. Deputy Shelnutt woke Leaf up, and, according to
the officers, at this point, “Leaf jumped up from the bed and
lunged at Deputy Shelnutt, wielding a 15-inch [B]owie
knife.” Id. The officers told Mr. Leaf to drop the knife and
shouted, “Sheriff’s Department” or “Police.” Id. Leaf,
however, advanced toward Deputy Shelnutt with the knife.
Id. After retreating a step or two, Deputy Shelnutt then fired
four shots, hitting Leaf three times. Id. Leaf died from the
gunshot wounds. Id.
   As noted, Leaf’s family sued (among other officials)
Deputies Shelnutt and Jacobs, although they later settled
with Deputy Jacobs. Id. at 1076. Deputy Shelnutt moved for
summary judgment, arguing that he was entitled to quali-
fied immunity. Id. The district court denied Deputy
Shelnutt’s motion in part, and Deputy Shelnutt appealed. Id.
No. 05-3812                                                17

at 1077 n.3. On appeal, this court summarized the district
court’s ruling, explaining:
  The district court denied Deputy Shelnutt qualified
  immunity because it found that questions of fact existed
  respecting four actions that he took on May 5, 2001: (1) his
  entry into Mr. Leaf’s apartment; (2) his subsequent search
  of Mr. Leaf’s apartment; (3) his conduct toward Mr. Leaf
  while Mr. Leaf was lying on the bed; and (4) the manner
  in which he shot Mr. Leaf. The district court also denied
  Deputy Shelnutt qualified immunity for the excessive
  force claim on the ground that, because the first three
  actions listed may have violated Mr. Leaf’s constitutional
  rights, Deputy Shelnutt may have created the need for
  force in such a way that his ultimate shooting of Mr. Leaf
  was tainted by prior unconstitutional acts.
Id. at 1080-81 (internal quotations omitted).
  In summarizing the Supreme Court’s holding in Johnson,
in Leaf we noted that we “may not reconsider the district
court’s determination that certain genuine issues of fact
exist. . . . Thus, we may not make conclusions about which
facts the parties ultimately might be able to establish at
trial.” Id. at 1078. We further explained that “[s]uch con-
clusions concern the ‘sufficiency of the evidence’ and are not
properly before a court of appeals considering the denial of
qualified immunity.” Id. Conversely, we stressed, “when the
outcome of a question of law—for instance, whether a
particular action violates the Constitution—does not depend
on the outcome of a disputed factual question, we may
review whether the district court correctly determined the
question of law that it considered.” Id. As we explained,
under Johnson, these “are the ‘more abstract issues of law’ to
which an appeal of the denial of qualified immunity
properly is limited. When conducting such a review, we
18                                                No. 05-3812

simply take, as given, the facts that the district court
assumed when it denied summary judgment for that
(purely legal) reason.” Id. (quoting Johnson, 515 U.S. at 317,
319).
  Notwithstanding the limitations of Johnson, we deter-
mined in Leaf that we had jurisdiction to consider Deputy
Shelnutt’s appeal. Although the district court in Leaf charac-
terized the questions as factual questions, this
court concluded that the real question was whether, tak-
ing the facts as assumed by the district court, Deputy
Shelnutt’s actions violated the Constitution. Id. at 1081-82;
1085; 1088; 1091-93. This question of law was within our
jurisdiction. We then held that, as to each claim Deputy
Shelnutt challenged on appeal,2 the facts failed to establish
a constitutional violation and therefore Deputy Shelnutt was
entitled to qualified immunity. Id. at 1081-82; 1085; 1088;
1091-93.
  Officer Duplain similarly argues that although the district
court characterized the issues as factual questions, he is not
challenging the facts as assumed by the district court but
rather whether those facts violate clearly established
constitutional principles. First, Officer Duplain points to the
district court’s conclusion that a genuine issue of material
fact existed as to whether he “believe[d] that the situation he
encountered posed a threat of serious physical harm to him
or to others.” The district court reached this conclusion
based on evidence that intoxicated college students often
frequented Poole’s neighborhood late at night. The district
court likewise relied on evidence that on Saturday nights


2
  Deputy Shelnutt did not argue on appeal that he was entitled
to qualified immunity on the excessive force claim because he
acted reasonably in shooting Leaf. Id. at 1092.
No. 05-3812                                                     19

while Ball State was in session, 75-80% of the calls that the
BSUPD received concerned drunk students.3 Officer
Duplain stresses that on appeal he is not challenging those
facts but rather is making a purely legal argument—that
taking the facts as assumed by the district court, his conduct
did not violate the Constitution. Next, Officer Duplain
points to the second genuine issue of material fact found by
the district court, namely “whether Officer Duplain suffi-
ciently alerted Michael to his presence on the scene.”
Although the evidence conflicted as to what exactly Officer
Duplain said when he confronted McKinney in the back-
yard, Officer Duplain argues on appeal that he is willing to
assume that the most he said was “Hey.” Nonetheless,
Officer Duplain argues he is entitled to qualified immunity
because the evidence shows that the backyard was well-
lit and that neighbors who were much further away
from Officer Duplain than McKinney recognized Officer
Duplain as a police officer. The district court also held that
there was “an issue of fact as to whether the number of
shots fired was reasonable under the circumstances.” Officer
Duplain again argues that he is not challenging any factual
finding but rather is arguing the purely legal question of
whether shooting a charging suspect four times violates
clearly established constitutional principles.



3
  It is unclear why the district court found this evidence relevant
since the call was made to the Delaware County 911 and not to
the BSUPD. What percentage of calls to 911 involved intoxicated
students is unclear, although it is likely a much lower percentage
given that 50% of off-campus calls concern intoxicated students,
and thus 50% involve some other disturbance or crime. More
importantly, the dispatcher reported a burglary-in-progress and
not an incident involving a student.
20                                              No. 05-3812

  If these were the only genuine issues of material fact the
district court found to exist, we would agree with Officer
Duplain that jurisdiction would be proper. As the Supreme
Court explained in Behrens, “Johnson reaffirmed that sum-
mary judgment determinations are appealable when they
resolve a dispute concerning an ‘abstract issu[e] of law’
relating to qualified immunity, [515 U.S.] at 317, typically,
the issue whether the federal right allegedly infringed was
clearly established, . . .” Behrens, 516 U.S. at 313. Leaf
similarly held that “when the outcome of a question of
law—for instance, whether a particular action violates the
Constitution—does not depend on the outcome of a dis-
puted factual question, we may review whether the district
court correctly determined the question of law that it
considered.” Leaf, 400 F.3d at 1078. And as in Leaf, with
respect to the above three issues, Officer Duplain does not
challenge the factual assumptions, but rather seeks review
of the district court’s conclusion that the assumed facts
could violate clearly established constitutional principles.
  However, in denying Officer Duplain summary judgment,
the district court found a fourth genuine factual issue,
namely that while “Officer Duplain testified that he shot at
McKinney as he charged toward him [t]his fact is contra-
dicted by the forensic evidence submitted by Plaintiffs.” As
to this fourth issue, Officer Duplain does not argue that he
was legally entitled to shoot McKinney whether or not
McKinney charged him. Rather, Officer Duplain argues that
there was no admissible evidence that McKinney had not
charged him, because the experts’ testimony the district
court relied upon was inadmissible under Daubert. On
appeal, Officer Duplain then spends a great deal of time in
his brief arguing the facts; he highlights the eyewitness
testimony—all of which confirmed Officer Duplain’s
testimony that McKinney charged Officer Duplain before he
No. 05-3812                                                   21

fired. Officer Duplain then dissects the various testimony
from the experts, pointing out many flaws in their opinions.
For instance, Officer Duplain complains that none of
McKinney’s experts asserted that they believed “to a
reasonable degree of scientific certainty” that McKinney had
not charged Duplain. Rather, Officer Duplain notes that the
experts used phrases such as “possible” or “more probable.”
Additionally, Officer Duplain contends that the opinions
failed to take into account all of the physical evidence. For
example, one expert stated that McKinney was shot while
still at the tree, but Officer Duplain argues that this conclu-
sion cannot possibly be true because the tree was on a
mound that raised it nearly a foot higher than the patio area
from where Officer Duplain had shot McKinney, and the
autopsy report stated that the bullets all entered McKinney
at a downward angle. That same expert stated that Officer
Duplain then moved the body to near the patio, but Officer
Duplain claims that the evidence showed that there were no
blood stains by the tree.4 Additionally, Officer Duplain
points to the fact that the shell casings were recovered
from the right and rear of where he and the witnesses said
he stood, not near the tree. Moreover, Officer Duplain
argues that the experts testified inconsistently that
McKinney never charged Officer Duplain, but that the
initial shots were fired when McKinney was more than
five feet away, but the final shot was within six inches. Were
we to review the record and confirm these numer-


4
  On appeal, McKinney argues that the physical evidence
supports his experts’ conclusion, pointing to photographs of the
jacket McKinney was wearing to show the entry points of the
bullets. Clothing, however, is moveable, and thus any reliance on
the jacket, as opposed to the autopsied body which showed the
entry wounds, is misplaced.
22                                                No. 05-3812

ous problems with the experts’ opinions, we would have
great difficulty in finding them admissible under Daubert.
   However, given the mandate of Johnson, we lack jurisdic-
tion 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 deter-
mines whether or not the pretrial record sets forth a ‘genu-
ine’ issue of fact for trial.” Johnson, 515 U.S. at 319-20. Yet
that is exactly what Officer Duplain is seeking 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. See Appellant’s Brief at 48 (“The fourth
issue, that Duplain’s testimony ‘is contradicted by the
forensic evidence submitted by the Plaintiffs,’ does not
present a material dispute, because the evidence was
speculative on its face.”). Thus, under Johnson, we lack
jurisdiction to consider Officer Duplain’s appeal. Johnson,
515 U.S. at 319-20; see also Behrens, 516 U.S. at 313 (explain-
ing that “if what is at issue in the sufficiency determination
is nothing more than whether the evidence could support a
finding that particular conduct occurred, the question
decided is not truly separable from the plaintiff’s claim, and
hence there is no final decision . . .”).
  The Sixth Circuit reached the same conclusion in Ellis
v. Washington County and Johnson City, Tenn., 198 F.3d 225
(6th Cir. 1999). In Ellis, the mother and minor child of a
pretrial detainee sued under § 1983 after the detainee
committed suicide in the county jail. Id. at 226. Relevant for
our purposes is the claim against one of the jailors, defen-
dant R.D. Jamerson. Jamerson moved for summary judg-
ment based on qualified immunity. The district court denied
No. 05-3812                                                   23

Jamerson’s motion and Jamerson appealed. Id. On appeal,
Jamerson argued that he was entitled to summary judgment
because the only evidence that could possibly create liability
on his part was inadmissible hearsay evidence. The Sixth
Circuit quite concisely framed the issue: “The question then
comes down to this: In a qualified immunity appeal by a
state official, should the court of appeals look behind a
Johnson v. Jones type factual dispute to determine if the
factual dispute is based only on uncorroborated hearsay
that will not be admissible at trial[?]” Id. at 229. The Sixth
Circuit then stressed that the “court below declined to grant
Jamerson’s motion for summary judgment because, and
only because, of Sheriff England’s hearsay statements.” Id.
The Sixth Circuit then went so far as to say that “the only
factual dispute in this case arises from the rankest type of
inadmissible hearsay.” Id. Yet, the Sixth Circuit explained
that “restrained as we are by Johnson, we must dismiss
Jamerson’s appeal because a factual dispute remains.” Id.
  We are likewise constrained by Johnson and thus, notwith-
standing the numerous problems with the proffered experts’
opinions that Officer Duplain identifies, we must dismiss
Officer Duplain’s appeal for lack of jurisdiction. It is true, as
Officer Duplain stresses, that the defense of qualified
immunity is not just a defense to liability, but it also entitles
a defendant not to stand trial. Leaf, 400 F.3d at 1080. Officer
Duplain also correctly notes that the issue of qualified
immunity “should be resolved at the earliest possible stage
in the litigation.” Bleavins v. Bartels, 326 F.3d 887, 891 (7th
Cir. 2003). However, the Supreme Court in Johnson, while
acknowledging those principles, nonetheless concluded that
other policy concerns outweighed the need for an immedi-
ate appeal. See Johnson, 515 U.S. at 317-18 (noting that “the
countervailing considerations that we have mentioned
(precedent, fidelity to statute, and underlying policies) are
too strong to permit” an immediate appeal). Specifically, the
24                                                No. 05-3812

Court in Johnson reasoned that “the existence or nonexis-
tence of a triable issue of fact . . . is the kind of issue that
trial judges, not appellate judges, confront almost daily.” Id.
at 316. Additionally, “questions about whether or not a
record demonstrates a ‘genuine’ issue of fact for trial, if
appealable, can consume inordinate amounts of appellate
time. . . . To resolve those controversies—to determine
whether there is or is not a triable issue of fact about such a
matter—may require reading a vast pretrial record, with
numerous conflicting affidavits, depositions, and other
discovery materials. This fact means . . . greater delay.” Id.
Finally, the Supreme Court noted that “the close connection
between this kind of issue and the factual matter that will
likely surface at trial means that the appellate court, in the
many instances . . . may well be faced with approximately
the same factual issue again, after trial, . . . [which would]
require it, once again, to canvass the record.” Id. at 316-17.
Thus, “an interlocutory appeal concerning this kind of issue
in a sense makes unwise use of appellate courts’ time, by
forcing them to decide in the context of a less developed
record, an issue very similar to one they may well decide
anyway later, on a record that will permit a better decision.”
Id. at 317.
  Although in some cases, the same factors that the Su-
preme Court in Johnson believed weighed against immediate
appeal, might instead cut the other way—for instance,
where the district court’s mistake seems obvious—the Court
in Johnson stressed that it must “of course de-
cide appealability for categories of orders rather than
individual orders.” Id. at 315. Accordingly, we cannot,
in each individual case, “engage in ad hoc balancing to
decide issues of appealability.” Id. Therefore, even though
in this case a holding that we lack jurisdiction may problem-
atically prolong this case, under Johnson that is our
only option. However, before this case proceeds further, we
No. 05-3812                                                     25

would encourage the district court to consider in more
detail its reliance on the proffered experts’ opinions. It is
unclear from the district court’s opinion if it even applied
the Daubert framework. That, of course, is the required
starting point. See Ammons v. Aramark Uniform Serv., Inc., 368
F.3d 809, 816 (7th Cir. 2004) (holding that in reviewing the
district court’s decision concerning expert testimony, we
must first determine whether the district court properly
followed the framework set forth in Daubert). Nonetheless,
under Johnson, our review of any ruling under Daubert
cannot proceed at this time.5
  Alternatively, Officer Duplain argues that this court has
pendent appellate jurisdiction to consider his Daubert
challenge. The Supreme Court in Swint v. Chambers County
Community, 514 U.S. 35, 51 (1995), “set out a general rule
against exercising pendent jurisdiction over related rulings
but left open the possibility that appellate courts could
extend such jurisdiction if the rulings were ‘inextricably
intertwined.’ ” Watkins v. City of Oakland, Cal., 145 F.3d 1087,
1092 (9th Cir. 1998) (citing Swint, 514 U.S. at 51). Thus, “the
doctrine of pendent appellate jurisdiction . . . allows a court
of appeals ‘to review an otherwise unappealable interlocu-
tory order if it is inextricably intertwined with an
appealable one.’ ” Montano v. City of Chicago, 375 F.3d 593,



5
  Because this court lacks interlocutory jurisdiction in qualified
immunity cases to consider evidentiary challenges, we stress that
district courts should thoroughly consider challenges to the
admissibility of evidence before ruling on summary judgment
motions, as “when acting on a motion for summary judgment, the
judge [should] consider[ ] only evidence that would be admissi-
ble at trial.” Gustovich v. AT&T Communications, Inc., 972 F.2d 845
(7th Cir. 1992).
26                                                  No. 05-3812

599 (7th Cir. 2004) (quoting Jones v. InfoCure, Corp., 310 F.3d
529, 536 (7th Cir. 2002)).
   To establish pendent appellate jurisdiction, however,
Officer Duplain must first establish at least one appealable
order, because without an underlying “appealable” order,
there can be nothing pendent. See Montano, 375 F.3d at 599
(holding that pendent jurisdiction allows review of an
unappealable order “if it is inextricably intertwined with an
appealable one”) (internal quotation omitted) (emphasis
added). Yet, we have already determined that McKinney’s
excessive force claim is not appealable because the district
court concluded that a genuine issue of material fact existed
as to whether McKinney charged Officer Duplain. Now, it
is true, as we stressed in Leaf, that “[a] defendant may
appeal the denial of qualified immunity with respect to
particular claims even when he still will be required to go to
trial on a matter separate from the claims for which he
asserted qualified immunity.” Leaf, 400 F.3d at 1078. Thus,
if a plaintiff “seeks relief for a single incident on multiple
theories of liability, . . . the defendant does not lose his right
to appeal the denial of qualified immunity as to one theory
of liability even when he still will be required to go to trial
on another theory.” Id. at 1078-79. Here, however, although
McKinney attempts to present several distinct issues on
appeal, those issues all relate to the same underlying
excessive force claim. For instance, McKinney focuses on
how Officer Duplain identified himself (or failed to do so),
but this, by itself, does not present an independent basis for
liability. Likewise, the high incidence of intoxicated college
students in the Village do not present an independent
constitutional claim. Rather, these facts relate to the totality
of the circumstances underlying McKinney’s excessive force
claim. This scenario contrasts with Leaf, in which the
plaintiffs had alleged numerous distinct claims, including
No. 05-3812                                                 27

an unconstitutional entry, unconstitutional search, unconsti-
tutional seizure, and unconstitutional shooting. Leaf, 400
F.3d at 1076. The final two aspects of McKinney’s excessive
force claim could, plausibly, be read as two distinct theories
of liability: First, that Officer Duplain violated the Fourth
Amendment by shooting McKinney, even once, and second,
that Officer Duplain violated the Fourth Amendment by
shooting McKinney multiple times. As noted, however, the
district court found that a genuine issue of material fact
existed as to whether McKinney charged Officer Duplain.
This factual dispute is relevant to both potential excessive
force theories and, therefore, we lack jurisdiction to consider
either theory of liability. In short, then, none of the claims
that McKinney presents is within our jurisdiction. Accord-
ingly, there is no appealable claim on which a pendent
claim could attach. Therefore, we do not have pendent
appellate jurisdiction to consider Duplain’s evidentiary
challenge to the experts’ opinions.


                             III.
  The district court denied Officer Duplain’s motion for
summary judgment based, in part, on its belief that a
genuine issue of material fact existed as to whether
McKinney had charged Officer Duplain. Although that
conclusion rested on the district court’s reliance on several
problematic expert opinions, under the Supreme Court’s
holding in Johnson, this court lacks jurisdiction to review the
district court’s conclusion that a genuine factual dispute
exists. Therefore, we must DISMISS for lack of jurisdiction.
28                                           No. 05-3812

A true Copy:
       Teste:

                      _____________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                USCA-02-C-0072—9-12-06
