                             In the

    United States Court of Appeals
               For the Seventh Circuit
                   ____________________
No. 18-1287
ANTHONY GANT,
                                                Plaintiff-Appellee,
                               v.

DANIEL HARTMAN,
                                            Defendant-Appellant.
                   ____________________

       Appeal from the United States District Court for the
        Northern District of Indiana, Fort Wayne Division.
      No. 1:16-CV-380 — Theresa L. Springmann, Chief Judge.
                   ____________________

    ARGUED FEBRUARY 7, 2019 — DECIDED MAY 14, 2019
                ____________________

   Before BAUER, HAMILTON, and BRENNAN, Circuit Judges.
    HAMILTON, Circuit Judge. Anthony Gant brought this ac-
tion against three police oﬃcers and the City of Fort Wayne
for injuries he sustained as he fled from an armed robbery.
Gant’s operative First Amended Complaint alleges several
constitutional violations and seeks damages under 42 U.S.C.
§ 1983. The defendants moved for summary judgment, assert-
ing claims of qualified immunity for Oﬃcers Daniel Hartman,
Bradley Griﬃn, and Jason Palm.
2                                                 No. 18-1287

    The district court granted summary judgment for all de-
fendants except Oﬃcer Hartman, who Gant alleges violated
his Fourth Amendment rights by using unconstitutional ex-
cessive force in shooting him. Oﬃcer Hartman now appeals
the district court’s denial of summary judgment. Because Of-
ficer Hartman’s argument depends upon and is inseparable
from the disputed facts identified by the district court, we
must dismiss this appeal for lack of appellate jurisdiction.
I. The Robbery and Shooting
    On August 23, 2015, just before sunset, Oﬃcers Hartman,
Griﬃn, Palm, and others responded to a report of an ongoing
armed robbery at a Dollar General store in Fort Wayne, Indi-
ana. Police dispatch told Oﬃcer Hartman that a female caller
was on the phone with her friend, an employee of Dollar Gen-
eral, when the employee screamed and exclaimed several
times that she could not open the register because it was on a
timer. Hartman and the other responding oﬃcers knew that
there had been a series of armed robberies at various Dollar
General stores in the Fort Wayne area. The police had not ar-
rested any suspects in association with these robberies. In the
previous robberies, two men would enter the store, display
handguns, confine or zip-tie employees, wait for the registers
to open, and depart after collecting cash, cigarettes, and em-
ployees’ cell phones.
    Arriving at the scene of the robbery, Oﬃcer Hartman
crouched ten to fifteen feet from the front entrance of the
store. He could not see clearly into the store because shelving
units blocked his view. Oﬃcers Griﬃn and Palm arrived and
positioned themselves respectively on the west and east sides
of the store’s front entrance. Two more oﬃcers (Edward Black
and Mark Bieker) went to the back of the store. By this time,
No. 18-1287                                                     3

the dispatcher had told the oﬃcers that the 911 caller had lost
phone contact with the employee, who had continued to yell
that she could not open the register. While Oﬃcers Hartman,
Griﬃn, and Palm were discussing how to proceed, the two
oﬃcers at the back of the store radioed that they had observed
suspects start to try to escape out the back but then retreat into
the store. Oﬃcer Palm then reported that he saw two people
inside approaching the front entrance of the store.
    What happened next was recorded by the cameras of two
patrol cars facing the store entrance. The video recordings
were subject to frame-by-frame analysis by Oﬃcer Hartman’s
expert witness. The following events happened in rapid suc-
cession, all occurring within a single second. Oﬃcer Hartman
started to approach the front entrance. As he started toward
the doors, two men appeared in the front entrance. The first
suspect, later identified as Christopher Johnson, ran out of the
front entrance. All three oﬃcers shouted to the suspects to get
down on the ground. Oﬃcer Hartman started to run toward
Johnson, but then turned to see plaintiﬀ Anthony Gant stand-
ing in the doorway. Gant had his left arm extended, holding
the door open. Hartman then fired two shots. One struck Gant
in the abdomen.
    Oﬃcer Hartman explained afterward that he feared for his
life because he believed Gant was holding a handgun, and
Hartman had no cover from a potential shot. At the moment
he fired his weapon, Oﬃcer Hartman estimates, he was less
than twenty feet away from Gant. Oﬃcer Hartman reported
later that Gant showed no signs of surrendering or obeying
commands to get down on the ground. Oﬃcer Hartman be-
lieved Gant was holding a gun in his left hand and was pre-
paring to shoot.
4                                                   No. 18-1287

    It was later determined that Gant had not been holding a
handgun, nor any object, in his hand when Oﬃcer Hartman
fired. Gant argues that he was either attempting to surrender
or that he was given no opportunity to respond to the orders
because he was shot immediately as he was exiting the store.
On July 25, 2016, Gant pleaded guilty to the charge of armed
robbery under Indiana Code § 35-42-5-1(1).
II. District Court Proceedings
    After pleading guilty, Gant filed this § 1983 action against
Hartman and others for violating his Fourth Amendment
rights by using excessive force. The defendants moved for
summary judgment, asserting the defense of qualified im-
munity for Oﬃcers Hartman, Griﬃn, and Palm. The district
court granted summary judgment for all defendants except
Oﬃcer Hartman. The court found that, when viewing the ev-
idence in the light reasonably most favorable to the plaintiﬀ,
that claim presented genuine issues of material fact for a jury
to decide. The court found that a jury would need to decide
whether it was reasonable for an oﬃcer in Hartman’s position
to believe that plaintiﬀ Gant had a gun. The court also found
that “a reasonable juror could conclude either that Plaintiﬀ
was in the process of obeying Defendant Hartman’s com-
mands or that he did not have the opportunity to obey De-
fendant Hartman’s commands.” Because of these factual dis-
putes, the district court denied Hartman’s motion for sum-
mary judgment based on qualified immunity. Hartman has
appealed.
III. Appellate Jurisdiction
   A denial of summary judgment is generally an unappeal-
able interlocutory order because it is not a “final decision” for
No. 18-1287                                                      5

purposes of 28 U.S.C. § 1291. Ortiz v. Jordan, 562 U.S. 180, 188
(2011). There is an exception for appeals based on the denial
of qualified immunity. Mitchell v. Forsyth, 472 U.S. 511, 530
(1985). An order denying qualified immunity on summary
judgment can be appealed immediately as a collateral order
that amounts to a final decision on the defendant’s right not
to stand trial. See Plumhoﬀ v. Rickard, 572 U.S. 765, 771–72
(2014); Gutierrez v. Kermon, 722 F.3d 1003, 1009 (7th Cir. 2013)
(dismissing interlocutory appeal of denial of qualified im-
munity because appellant’s argument depended on disputed
fact), citing Mitchell, 472 U.S. at 524–30.
    A denial of qualified immunity can be appealed, however,
only “to the extent that it turns on an issue of law.” Mitchell,
472 U.S. at 530. The Supreme Court held in Johnson v. Jones
that a defendant cannot appeal an order denying immunity
“insofar as that order determines whether or not the pretrial
record sets forth a ‘genuine’ issue of fact for trial.” 515 U.S.
304, 319–20 (1995). When the district court concludes that fac-
tual disputes prevent the resolution of a qualified immunity
defense, “these conclusions represent factual determinations
that cannot be disturbed in a collateral-order appeal.” Jones v.
Clark, 630 F.3d 677, 681 (7th Cir. 2011); see also Gutierrez, 722
F.3d at 1010 (“[A]n appellant challenging a district court’s de-
nial of qualified immunity eﬀectively pleads himself out of
court by interposing disputed factual issues in his argu-
ment.”). An appellate court may not “make conclusions about
which facts the parties ultimately might be able to establish at
trial,” nor may it “reconsider the district court’s determina-
tion that certain genuine issues of fact exist.” McKinney v. Du-
plain, 463 F.3d 679, 688 (7th Cir. 2006), quoting Leaf v. Shelnutt,
400 F.3d 1070, 1078 (7th Cir. 2005).
6                                                     No. 18-1287

   To establish appellate jurisdiction, therefore, the party
seeking review must invoke “a purely legal argument that
does not depend on disputed facts.” White v. Gerardot, 509
F.3d 829, 833 (7th Cir. 2007) (dismissing interlocutory appeal
from denial of qualified immunity because defendant failed
to base legal arguments either on facts assumed by district
court or alleged by plaintiﬀ). Appellate jurisdiction is also im-
proper when the appellant’s supposedly legal arguments “are
dependent upon, and inseparable from, disputed facts.” Id. at
835.
    White illustrates this rule in a very similar case (except that
the suspect in that case died from the oﬃcer’s shot). In White
the defendant oﬃcer claimed that he feared for his life be-
cause he believed the suspect had a gun and, despite the of-
ficer’s commands to raise his hands, moved his hands in front
of him “as if he were reloading his gun.” Id. at 834. The plain-
tiﬀ, however, oﬀered testimony that the suspect was neither
armed nor disobeying orders when the oﬃcer shot him. The
district court denied summary judgment based on qualified
immunity because of the disputed factual issues. We dis-
missed the defendant’s interlocutory appeal of that denial be-
cause the defendant’s argument necessarily depended on and
was inseparable from his version of the facts. Id. at 836–37.
    The defendant’s reliance on disputed facts in White barred
appellate jurisdiction. To appeal a denial of qualified immun-
ity, an appellant must “refrain[] from contesting any fact that
a reasonable jury could resolve against him.” Rainsberger v.
Benner, 913 F.3d 640, 643 (7th Cir. 2019) (aﬃrming denial of
qualified immunity). The appellant’s argument therefore
must accept the facts and reasonable inferences favorable to
the plaintiﬀ or the facts assumed by the district court’s
No. 18-1287                                                     7

decision. Johnson, 515 U.S. at 319; Gutierrez, 722 F.3d at 1009;
see also Jackson v. Curry, 888 F.3d 259, 263 (7th Cir. 2018) (dis-
missing interlocutory appeal because appellant did not raise
a pure legal issue). The line between appealable and non-ap-
pealable orders established by Johnson can often be diﬃcult to
apply. See Gutierrez, 722 F.3d at 1011. The key is that the legal
argument cannot depend entirely on disputed facts. An ap-
peal making an otherwise purely legal argument may, how-
ever, survive “the mere mention” of disputed facts. Id.
    There is also a narrow, pragmatic exception allowing ap-
pellants to contest the district court’s determination that ma-
terial facts are genuinely disputed. In Scott v. Harris, the Su-
preme Court found the defendant police oﬃcer could dispute
the district court’s finding that a genuine factual dispute ex-
isted because a video recording of the incident “utterly dis-
credited” the plaintiﬀ’s testimony that he was driving care-
fully. 550 U.S. 372, 380–81 (2007). The video recording of the
plaintiﬀ driving erratically during a high-speed chase was ir-
refutable evidence that he “posed an actual and imminent
threat to the lives” of others and that, as a matter of pure law
in light of that incontestable fact, the defendant used reason-
able force to stop him. Id. at 383–84.
    We recently applied this reasoning in Dockery v. Blackburn,
finding that the plaintiﬀ’s version of the facts was discredited
by video evidence. 911 F.3d 458, 466 (7th Cir. 2018) (reversing
denial of qualified immunity because, despite conflicting ver-
sions of the facts, video evidence showed there was no genu-
ine issue of material fact). The plaintiﬀ in Dockery argued that
the video of his arrest was subject to multiple interpretations
and that he did not intend to resist the oﬃcers. We found,
however, that the video plainly showed that Dockery was
8                                                             No. 18-1287

“uncooperative and physically aggressive” toward the oﬃc-
ers and “wildly kicked” in their direction as they attempted
to handcuﬀ him. Id. at 467.
    Other courts applying this narrow Scott exception have
stressed that it applies only in the rare case at the “outer limit”
of the principle established by Johnson. E.g., Bishop v. Hackel,
636 F.3d 757, 769 (6th Cir. 2011); Blaylock v. City of Philadelphia,
504 F.3d 405, 414 (3d Cir. 2007). “Scott does not hold that
courts should reject a plaintiﬀ’s account on summary judg-
ment whenever documentary evidence, such as a video, oﬀers
some support for a governmental oﬃcer’s version of events.”
Witt v. West Virginia State Police, Troop 2, 633 F.3d 272, 276 (4th
Cir. 2011). Instead, Scott holds that “where the trial court’s de-
termination that a fact is subject to reasonable dispute is bla-
tantly and demonstrably false, a court of appeals may say so,
even on interlocutory review.” Blaylock, 504 F.3d at 414 (dis-
missing appeal in relevant part where video did not blatantly
and demonstrably contradict plaintiﬀ’s version); accord, Witt,
633 F.3d at 276–77 (same). While the video in Dockery demon-
strated facts reaching this outer limit, it should be considered
a rare case. It does not apply where the video record is subject
to reasonable dispute.
    In this case, Oﬃcer Hartman has not satisfied any of the
routes to interlocutory appellate jurisdiction under § 1291. He
accepts neither the facts most favorable to the plaintiﬀ nor the
facts assumed by the district court; in fact, he has openly con-
tested the facts throughout his briefs and oral argument.1

    1 See, e.g., Appellant’s Reply Br. at 3 (“Contrary to the district court’s
opinion, a reasonable juror could not conclude that Gant was in the pro-
cess of obeying Hartman’s commands.”); id. (“[T]he district court did not
set forth a single disputed material issue of fact.”); Oral Arg. 4:05 (“The
No. 18-1287                                                                 9

Oﬃcer Hartman has consistently relabeled certain facts as
“undisputed,” and he asks this court to challenge the district
court’s determination that material facts are genuinely dis-
puted. Oﬃcer Hartman has asserted repeatedly that it is un-
disputed that Gant was not attempting to surrender. That is
correct, but Gant contends that he was not resisting arrest
when he was shot and that he was either attempting to com-
ply with orders or did not have time to respond to those or-
ders when Oﬃcer Hartman shot him in that critical second, as
we described above. Oﬃcer Hartman cannot pursue an inter-
locutory appeal by arguing that the evidence is insuﬃcient to
support the district court’s conclusion or by relabeling the dis-
puted facts as “undisputed.” These add up to “a back-door
eﬀort to contest the facts.” Jones v. Clark, 630 F.3d 677, 680 (7th
Cir. 2011); see also Thompson v. Cope, 900 F.3d 414, 420 (7th Cir.
2018).
    Absent irrefutable evidence, we may not use an interlocu-
tory appeal to second-guess the district court’s conclusion
that material facts are disputed. We have watched the videos
of Gant’s shooting and arrest, and we have reviewed the
frame-by-frame analysis by Hartman’s expert witness. Unlike
the footage in Scott and Dockery, the videos in this case do not
“utterly discredit” Gant’s contentions that he was trying to
comply with orders or did not have time to respond to Oﬃcer
Hartman’s commands. The recordings show Gant standing in
the doorway, his arm extended holding the door, and then his
arm lowering slightly before Oﬃcer Hartman fired. All of this


undisputed facts show that [Gant] was not surrendering when he was shot
and that he posed a threat of serious bodily harm or death to Officer Hart-
man at the time he discharged his firearm.”); id. at 6:40 (“The district court
was wrong and there are no disputed facts.”).
10                                                  No. 18-1287

occurs within a single second. This is not comparable to Dock-
ery where the plaintiﬀ actively pushed and kicked at oﬃcers,
thus “utterly discrediting” his claim that he had not resisted
arrest. Nor do the videos here provide irrefutable proof that
it was reasonable for Oﬃcer Hartman to believe Gant was
holding a gun when he was shot. Outside of irrefutable evi-
dence like that in Scott and Dockery, an appellate court is not
in the position to decide on interlocutory appeal what facts
may eventually be established at trial by a reasonable fact-
finder. See McKinney v. Duplain, 463 F.3d 679, 688 (7th Cir.
2006).
    Oﬃcer Hartman claims that he is entitled to qualified im-
munity because his actions did not violate Gant’s constitu-
tional rights and, even if they did, those rights were not
clearly established on or before August 23, 2015. To make this
argument, however, Oﬃcer Hartman asks in eﬀect that we re-
solve facts that the district court treated as disputed. Oﬃcer
Hartman relies on several cases, such as Ford v. Childers, 855
F.2d 1271 (7th Cir. 1988), and Tom v. Voida, 963 F.2d 952 (7th
Cir. 1992), to support his claim that his use of deadly force was
reasonable. However, the facts of those police-action shoot-
ings were not comparable to the district court’s version of the
evidence here most favorable to plaintiﬀ Gant. The armed
suspect in Ford was attempting to flee when he was shot. 855
F.2d at 1275. The suspect in Tom was actively engaged in a
violent struggle with the oﬃcer when she used deadly force.
963 F.2d at 955. Our decisions show that it is unreasonable to
use deadly force against a suspect who is not resisting arrest
and who is genuinely attempting to surrender. See, e.g., Miller
v. Gonzalez, 761 F.3d 822, 829 (7th Cir. 2014) (“This prohibition
against significant force against a subdued suspect applies
notwithstanding a suspect’s previous behavior—including
No. 18-1287                                                     11

resisting arrest, threatening oﬃcer safety, or potentially car-
rying a weapon.”); see also Alicea v. Thomas, 815 F.3d 283, 292
(7th Cir. 2016) (It is “clearly established that using a signifi-
cant level of force on a non-resisting or a passively resisting
individual constitutes excessive force.”). To answer the ques-
tion of reasonableness as a matter of law, we would need to
resolve disputed issues of material fact about that critical one
second.
    Because Oﬃcer Hartman’s appellate argument relies on
disputed facts and he has not presented suﬃcient evidence to
“utterly discredit” the district court’s findings, this court lacks
jurisdiction over this interlocutory appeal. The appeal is
                                                     DISMISSED.
