                          NONPRECEDENTIAL DISPOSITION
                            To be cited only in accordance with
                                    Fed. R. App. P. 32.1



             United States Court of Appeals
                                     For the Seventh Circuit
                                     Chicago, Illinois 60604

                                           July 17, 2007

                                                Before

                               Hon. RICHARD D. CUDAHY, Circuit Judge

                               Hon. DANIEL A. MANION, Circuit Judge

                               Hon. ILANA DIAMOND ROVNER, Circuit Judge


Nos. 05-4278 & 05-4590                                   Appeals from the United States District
                                                         Court for the Northern District of Illinois,
Alejandro Duran, Maria C. Duran,                         Eastern Division
Jaquelin Duran, et al.,
                        Plaintiffs-Appellees,            No. 01 C 6858

       v.                                                John F. Grady, Judge.

Rudy Sirgedas, Anthony Lewandowski,
Thomas Kratochvil, et al.,
                  Defendants-Appellants.


                                            ORDER

        On May 15, 2007, defendant Robert DeCianni filed a petition for rehearing, contending
that he had not waived his defense of qualified immunity as to plaintiff Gonzalo Duran’s claim
of excessive force. In our original opinion, based on the district court’s opinion, we concluded
that Officer DeCianni had waived any claim of qualified immunity by not presenting the
argument to the district court. However, in his petition for rehearing, Officer DeCianni provided
record support showing that he had in fact argued before the district court (as he did on appeal)
that he was entitled to qualified immunity on Gonzalo’s excessive force claim. In their answer
to the petition for rehearing, the plaintiffs agree that Officer DeCianni argued his claim of
qualified immunity to the district court. Therefore, even though the district court did not
expressly address Officer DeCianni’s claim of qualified immunity, we conclude that Officer
DeCianni did not waive this issue. Accordingly, we grant the petition for rehearing and vacate
that portion of our earlier order holding that Officer DeCianni had waived any claim of qualified
Nos. 05-4278 & 05-4590                                                                      Page 2



immunity as to Gonzalo’s excessive force claim, namely part II.B.2.e and the related concluding
summary in part III. We further modify the original order to substitute for the vacated portion
the following analysis of Gonzalo’s excessive force claim against Officer DeCianni.

                                 e. Defendant Officer DeCianni


        Gonzalo also alleged an excessive force claim against Officer DeCianni. As to this claim,
the district court noted that “Gonzalo alleged that DeCianni beat and choked him in the attempt
to subdue and arrest him.” District Court Opinion at 88. Based on these facts, the district court
concluded that Gonzalo had an evidentiary basis for his excessive force claim against Officer
DeCianni. District Court Opinion at 80. On appeal, Officer DeCianni claims that he was
entitled to qualified immunity on Gonzalo Duran’s excessive force claim.


         On interlocutory appeal from the denial of qualified immunity, we must accept the
district court’s version of the factual record, see Leaf, 400 F.3d at 1077-78, but the question of
the reasonableness of force is a legal question that we review de novo, Bell, 321 F.3d at 640.
Our de novo review convinces us that, as was the case with Officers Sirgedas and Vitalo and
Sergeant Krummick, under the limited circumstances of this case (i.e., the escalating situation in
which party-goers outnumbered law enforcement officers, and where Gonzalo was able to resist
the attempts of four officers to arrest him) the force Officer DeCianni used was reasonable in
light of the Graham factors, or alternatively the lack of analogous case law would entitle Officer
DeCianni to qualified immunity. Accordingly, we reverse the district court’s denial of summary
judgment to Officer DeCianni on Gonzalo’s excessive force claim.1




       1
           The fact that Gonzalo’s false arrest claim remains against Officer DeCianni is
irrelevant, as a false arrest claim is distinct from an excessive force claim. See Cortez v.
McCauley, 478 F.3d 1108, 1127 (10th Cir. 2007) (“If the plaintiff can prove that the officers
lacked probable cause, he is entitled to damages for the unlawful arrest, which includes damages
resulting from any force reasonably employed in effecting the arrest. If the plaintiff can prove
that the officers used greater force than would have been reasonably necessary to effect a lawful
arrest, he is entitled to damages resulting from that excessive force. These two inquiries are
separate and independent, though the evidence may overlap.”).
