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March 6, 2026 Get Citation Alerts Download PDF Add Note

Elias Villalobos v. Louis Picicco

Court of Appeals for the Seventh Circuit

• Citations: None known
• Docket Number: 25-1304

• Judges: Brennan

• Opinion

• Authorities (36)

• Cited By (0)

• Summaries (0)

• Similar Cases (9.9K)

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Combined Opinion

                        by [Michael Brian Brennan](https://www.courtlistener.com/person/8553/michael-brian-brennan/)

In the

United States Court of Appeals
For the Seventh Circuit

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No. 25-1304
ELIAS VILLALOBOS,
Plaintiff-Appellee,
v.

LOUIS PICICCO, et al.,
Defendants-Appellants.

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Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:16-cv-08510 — Franklin U. Valderrama, Judge.

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ARGUED DECEMBER 10, 2025 — DECIDED MARCH 6, 2026

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Before BRENNAN, Chief Judge, and LEE and KOLAR, Circuit
Judges.
BRENNAN, Chief Judge. This constitutional tort case comes
to us in a peculiar procedural posture. In 2015, Calumet City,
Illinois police officers tased and shot Elias Villalobos in his
home. Villalobos sued the officers under 42 U.S.C. § 1983, al-
leging violations of the Fourth Amendment. At the summary
judgment stage, the officers invoked qualified immunity. But
the district court largely rejected that affirmative defense,
2 No. 25-1304

finding that nearly all Villalobos’s excessive force theories of
liability should go to trial. In the district court’s view, a jury
must resolve fact disputes central to the officers’ qualified im-
munity defense.
The district court also decided one issue as a matter of law.
It concluded that the officers violated the Fourth Amendment
when they entered Villalobos’s home without a warrant. Un-
convinced by the officers’ argument that they faced exigent
circumstances, the court rejected their qualified immunity de-
fense and granted partial summary judgment to Villalobos.
The officers then brought this interlocutory appeal, challeng-
ing only the district court’s analysis of that issue.
For the reasons stated below, we vacate the district court’s
order on the unlawful entry issue and remand for further pro-
ceedings. On remand, the parties should advance arguments
on both prongs of the qualified immunity test, not just one.
We also respectfully invite the district court to consider the
implications of some factual disputes identified by the parties
on appeal.
I
A. Undisputed Facts
In May 2015, Officer Louis Picicco drove to the home of
Elias Villalobos in Calumet City. He was responding to a 911
call about a man throwing a knife in an alley near the house.
When Picicco arrived, he spoke to the 911 caller, who pointed
out the alleged knife-thrower. Picicco says he watched the
man enter the house through the front door, but he did not
see anything in the man’s hands.
After Officer Kyle Brasewicz arrived, the two officers
knocked on Villalobos’s front door. They then exchanged
No. 25-1304 3

words with at least one person, who told the officers from be-
hind the closed door to go away.
At least two things happened next. First, Officer Fernando
Guerrero and Sergeant Kevin Urbanek arrived sometime fol-
lowing the exchange at the door. Second, some of the officers
interacted with two other people outside the house who did
not appear injured or in distress.
The officers also learned (at some point during the encoun-
ter) about a domestic violence incident linked to Villalobos’s
address. A few days earlier, a woman had reported Villalobos
to the Calumet City Police Department, accusing him of
“choking her in the shower, putting a gun to her head and
threatening to kill her, and accusing her of stealing drugs
from him.”
Based on the information the officers had gathered, they
decided to enter Villalobos’s home through the unlocked back
door without a warrant. In their telling, they did so to conduct
a well-being check and to ensure the safety of occupants. Vil-
lalobos contends this was a “pretext” designed to “grab” him
illegally in his own home.
Once inside the house, the officers searched for the man
Picicco saw earlier. In the kitchen, they encountered a woman
who did not appear injured. On the second floor, they found
Villalobos hiding in a crawl space in the bedroom closet.
Both sides strongly dispute what happened next. The of-
ficers contend Villalobos refused to comply with their com-
mands and threatened them with an electric drill, a stick, and
a knife. Villalobos insists he did none of these things. But all
agree the officers tased Villalobos several times before Picicco
shot him.
4 No. 25-1304

B. Procedural History
Villalobos sued Picicco, Brasewicz, Guerrero, and Ur-
banek for their roles in this incident. Villalobos’s pro se
amended complaint did not explain the legal theory of his
lawsuit. Once he obtained counsel, the parties distilled two
claims from his account. 1 A series of Fourth Amendment ex-
cessive force theories of liability became the centerpiece of the
lawsuit. By tasing him several times, Villalobos argued, each
officer had acted unreasonably because he had not resisted
their commands or threatened them. He also asserted that
Picicco had no reasonable grounds for shooting him because
he did not wield a knife at the officers.
Villalobos also alleged the officers violated his Fourth
Amendment right to be free of a “warrantless and nonconsen-
sual entry” into his home. Payton v. New York, 445 U.S. 573, 576
(1980). The officers, however, believed the exigent circum-
stances exception to the warrant requirement justified their
entry. There had been a prior domestic violence incident at
the house, and some officers claimed they heard a woman’s
voice from behind the door say she could not open it. So, un-
der the totality of circumstances, the officers decided to con-
duct a well-being check for the physical safety of individuals
who might be inside.
At the close of discovery, the officers moved for summary
judgment. They invoked qualified immunity as an affirmative
defense to all Villalobos’s Fourth Amendment challenges. But
the district court largely denied this motion. Though it de-
cided Picicco could not be held liable for the first deployment

1 Villalobos voluntarily dismissed his third theory, a false arrest argu-

ment, at the summary judgment stage.
No. 25-1304 5

of his taser, the court rejected the officers’ motion on all other
excessive force arguments. It found several disputes of mate-
rial fact on issues core to the immunity defense, precluding
summary judgment. These are issues for trial on remand.
The district court handled the unlawful entry theory dif-
ferently. Villalobos had moved for partial summary judgment
on this issue, contending the officers had not shown an emer-
gency justifying their warrantless entry. Agreeing with Villa-
lobos, the district court simultaneously rejected the officers’
qualified immunity defense and entered partial summary
judgment for Villalobos on the unlawful entry component.
The officers then filed this interlocutory appeal. They chal-
lenge only the portion of the district court’s order denying
them qualified immunity on Villalobos’s unlawful entry
claim. The officers do not ask us to revisit the grant of partial
summary judgment to Villalobos, nor do they appeal the dis-
trict court’s handling of the excessive force claims.
We review a denial of summary judgment de novo. Smith
v. Finkley, 10 F.4th 725, 734 (7th Cir. 2021). In other words, we
examine the record to see whether the district court properly
rejected the defendants’ qualified immunity defense. Id.
When the facts require us to draw inferences, they are con-
strued in favor of the non-moving party, Villalobos. Doe v.
Gray, 75 F.4th 710, 716 (7th Cir. 2023).
II
As always, we begin with jurisdiction. Chi. Tchrs. Union,
Loc. 1 v. Educators for Excellence, Inc., 159 F.4th 524, 528 (7th
Cir. 2025). We have no reason to doubt the district court’s ju-
risdiction to hear the underlying dispute. See 28 U.S.C. § 1331.
6 No. 25-1304

But this court must also ensure it has appellate jurisdiction.
Smith, 10 F.4th at 734–35.
Appellate courts have jurisdiction to review final orders.
28 U.S.C. § 1291. Normally, this means parties cannot appeal
a denial or partial grant of summary judgment when other
claims continue to trial. Dupree v. Younger, 598 U.S. 729, 735–
36 (2023); Stinson v. Gauger, 868 F.3d 516, 522 (7th Cir. 2017)
(en banc). Under the collateral order doctrine, though, orders
rejecting a qualified immunity defense before trial are treated
as final. Mitchell v. Forsyth, 472 U.S. 511, 524–30 (1985). Be-
cause qualified immunity is an “immunity from suit rather
than a mere defense to liability,” the Supreme Court has clar-
ified that the defense is “effectively lost if a case is erroneously
permitted to go to trial.” Id. at 526 (emphasis omitted). So ap-
pellate courts can sometimes review a district court’s denial
of summary judgment on qualified immunity grounds.
In this interlocutory posture, “appellate jurisdiction is
limited.” Smith, 10 F.4th at 729. An appellate court has juris-
diction over purely legal questions but not a district court’s
“determination of ‘evidence sufficiency.’” Plumhoff v. Rickard,
572 U.S. 765, 772 (2014) (quoting Johnson v. Jones, 515 U.S. 304,
314 (1995)). That means it cannot review a district court’s con-
clusion that genuine disputes of material fact preclude sum-
mary judgment. Stewardson v. Biggs, 43 F.4th 732, 734 (7th Cir.
2022). But if the defendants “adopt the plaintiff’s facts” on ap-
peal, we can review the legal question of whether those facts
satisfy the qualified immunity test. Smith, 10 F.4th at 738.
The “line between appealable and nonappealable orders”
is often “hazy.” Gutierrez v. Kermon, 722 F.3d 1003, 1011 (7th
Cir. 2013). So this court has articulated a two-step test for de-
termining our appellate jurisdiction in unclear cases. First, we
No. 25-1304 7

examine whether the district court “identifies factual disputes
as the reason for denying qualified immunity.” Smith, 10 F.4th
at 736. And second, we “consider the arguments (or stipula-
tions) offered by those appealing to see if they … make a
‘back-door effort’ to use disputed facts.” Id.
The first step is not dispositive: even if the district court
points to factual disputes when rejecting qualified immunity,
appellate jurisdiction exists if the defendant officials adopt the
plaintiff’s version of the facts for purposes of the legal inquiry.
See Jones v. Clark, 630 F.3d 677, 680 (7th Cir. 2011). But if an
official fails the second step, he “effectively pleads himself out
of court by interposing disputed factual issues in his argu-
ment.” Gutierrez, 722 F.3d at 1010. The goal of this inquiry is
to see whether the “arguments for qualified immunity de-
pend upon, and are inseparable from,” disputed facts. Smith,
10 F.4th at 738.
Of course, this court always has jurisdiction to determine
its own jurisdiction. Word Seed Church v. Village of Hazel Crest,
111 F.4th 814, 819 (7th Cir. 2024). We exercise that authority
now to consider the propriety of this appeal.
III
At first glance, this looks like the type of case in which this
court has appellate jurisdiction. The district court rejected the
officers’ qualified immunity defense as a matter of law on the
unlawful entry issue. It identified no disputes of material fact
requiring the issue to go to trial—unlike the excessive force
claims, which all hinged on disputed facts. The court also
identified no relevant factual disputes on the same issue and
granted partial summary judgment to Villalobos. Further, the
8 No. 25-1304

officers generally adopt both Villalobos’s account and the dis-
trict court’s recitation of the relevant facts before this court.
In an ordinary case, this would be more than enough to
rule on qualified immunity. But in their briefs and at oral
argument, both parties alerted us to anomalies in the under-
lying litigation, giving us pause. The officers noted that the
district court did not consider one prong of the qualified im-
munity analysis—whether “clearly established law” put the
officers on notice that their conduct violated the Fourth
Amendment. And Villalobos maintains there are disputes of
material fact on the unlawful entry claim, precluding appel-
late jurisdiction. Given the confusion about both points
throughout this appeal, we address each in turn.
A. Clearly Established Law
There are two prongs to the qualified immunity analysis.
Doe, 75 F.4th at 716. First, courts ask whether officials violated
a federal right. Id. Second, they consider whether “the unlaw-
fulness of their conduct was clearly established at the time.”
District of Columbia v. Wesby, 583 U.S. 48, 63 (2018) (citation
modified). Unless both questions are answered in the affirm-
ative, the defendant is protected by qualified immunity. See
Koh v. Ustich, 933 F.3d 836, 844 (7th Cir. 2019).
Importantly, the plaintiff bears the burden of proving the
law is clearly established—not the defendant. Findlay v.
Lendermon, 722 F.3d 895, 899 (7th Cir. 2013). Though “quali-
fied immunity is an affirmative defense,” the “burden shifts
to the plaintiff to defeat it” once properly raised. Leiser v.
Kloth, 933 F.3d 696, 701 (7th Cir. 2019). Meeting this burden is
a “do or die” requirement for the plaintiff’s suit. If a plaintiff
fails to identify analogous precedent clearly establishing the
No. 25-1304 9

law, the district court must grant summary judgment for the
defendant. Manery v. Lee, 124 F.4th 1073, 1079 (7th Cir. 2025)
(“An official will be protected by qualified immunity unless
the plaintiff” satisfies both prongs (citation modified)).
A plaintiff carries this burden by pointing to specific cases,
not general legal principles. City of Tahlequah v. Bond, 595 U.S.
9, 12 (2021). The plaintiff must identify “a reasonably analo-
gous case that has both articulated the right at issue and ap-
plied it to a factual circumstance similar to the one at hand.”
Leiser, 933 F.3d at 701 (citation omitted). “Although the plain-
tiff need not point to an identical case finding the alleged con-
duct unlawful,” the bar is still high: plaintiffs “must point to
precedent placing the ‘statutory or constitutional question be-
yond debate.’” Schimandle v. Dekalb Cnty. Sheriff’s Off., 114
F.4th 648, 655 (7th Cir. 2024) (quoting Mullenix v. Luna, 577
U.S. 7, 12 (2015)). As the Supreme Court regularly reminds us,
“[i]t is not enough that a rule be suggested by then-existing
precedent; the rule’s contours must be so well defined that it
is clear to a reasonable officer that his conduct was unlawful
in the situation he confronted.” Tahlequah, 595 U.S. at 12 (cita-
tions modified). That means courts must not “define clearly
established law at too high a level of generality.” Id. 2

2 If no such analogous case exists, the plaintiff can try to satisfy this

burden by showing the violation was so obvious that no reasonable officer
could believe his actions were constitutional. Brosseau v. Haugen, 543 U.S.
194, 199 (2004) (“Of course, in an obvious case, [general] standards can
‘clearly establish’ the answer, even without a body of relevant case law.”).
But it is a “rare case[] in which the constitutional violation is patently
obvious and so outrageous” that an officer loses the qualified immunity
defense in this way. Smith, 10 F.4th at 746 n.8 (citation modified). The
Supreme Court usually reserves this escape hatch for egregious factual
10 No. 25-1304

In this case, neither party asked, nor did the district court
decide, whether the relevant law was clearly established. But
district courts cannot deny qualified immunity as a matter of
law unless both prongs of the test are satisfied. See Stewardson
v. Titus, 126 F.4th 1264, 1276 (7th Cir. 2025) (“Before piercing
an officer’s immunity shield, a court must answer both steps
of the inquiry in the affirmative.”). By contrast, a district court
can grant a motion for summary judgment on qualified im-
munity grounds by relying on either prong of the test. Pearson
v. Callahan, 555 U.S. 223, 231–37 (2009). This asymmetry arises
because qualified immunity “provides ample room for mis-
taken judgments and protects all but the plainly incompetent
and those who knowingly violate the law.” Schimandle, 114
F.4th at 655 (citation modified).
The summary judgment standard adds a layer of complex-
ity. But the same principles govern when the material facts are
undisputed: the court can either grant or deny the motion as
a matter of law. See, e.g., Scott v. Harris, 550 U.S. 372, 386 (2007).
Where material facts are disputed, the district court has
three options. First, it can still grant the motion for summary
judgment on qualified immunity grounds, so long as it con-
strues all facts in the plaintiff’s favor. Wonsey v. City of Chicago,
940 F.3d 394, 400 (7th Cir. 2019). If it finds that the plaintiff’s
factual allegations do not add up to a constitutional violation,
it should enter judgment on prong one. Id. at 401. Or it can
find that the relevant law was not clearly established at the
time of the incident, granting the motion on prong two. See,
e.g., Pryor v. Corrigan, 124 F.4th 475, 491 (7th Cir. 2024).

scenarios in the Eighth Amendment context. See Taylor v. Riojas, 592 U.S.
7, 8–9 (2020) (citing Hope v. Pelzer, 536 U.S. 730, 741 (2002)).
No. 25-1304 11

Second, the district court can deny the motion for sum-
mary judgment and reject the qualified immunity defense as
a matter of law. These cases arise when both prongs of the
qualified immunity analysis are satisfied, taking the plaintiffs’
version of the facts as given. See generally Est. of Escobedo v.
Bender, 600 F.3d 770 (7th Cir. 2010). In some cases, but not all,
this means the plaintiff could also be entitled to summary
judgment on the relevant legal theory. Of course, the district
court would need to re-construe all facts in the defendant’s
favor before granting such a motion. Pryor, 124 F.4th at 483.
Third, the district court can deny the summary judgment
motion when there are disputed facts going to the heart of the
immunity defense. Smith, 10 F.4th at 750. In this scenario, the
district court temporarily rejects the qualified immunity de-
fense, but the defendants can renew it after a jury settles the
relevant disputes of fact at trial. Id. (“[T]he affirmative defense
remains preserved for a later ruling”). This category repre-
sents the standard case in which there is no appellate jurisdic-
tion. See Johnson, 515 U.S. at 316–18.
Before the district court, Villalobos did not point to any
cases with analogous facts that clearly established the law. 3

3 In his motion for partial summary judgment, Villalobos cited three

cases that cannot satisfy his burden, for different reasons. First, he cited
Caniglia v. Strom, 593 U.S. 194 (2021), a case concluding there is no “free-
standing community-caretaking exception” to the warrant requirement.
Id. at 197. But that case postdates this incident, which occurred in 2015. See
Brosseau, 543 U.S. at 198 (“[R]easonableness is judged against the backdrop
of the law at the time of the conduct.”). Next, he cited United States v.
Pichany, 687 F.2d 204 (7th Cir. 1982), on the same point. But that case is not
analogous to these facts. Id. at 205–06 (officers entered a commercial ware-
house without a warrant in response to a burglary). Finally, he cited United
States v. Patino, 830 F.2d 1413 (7th Cir. 1987), for the point that officers do
12 No. 25-1304

Instead, he principally argued that a case the officers cited in
support of their qualified immunity defense—United States v.
Huddleston, 593 F.3d 596 (7th Cir. 2010)—was not analogous
to his situation. In Huddleston, police officers received a call
that a man “had a gun and was trespassing in the home of a
woman whom he had threatened to kill earlier that evening.”
Id. at 600. Even though the officers did not see any evidence
of imminent domestic abuse, this court held that exigent cir-
cumstances justified their warrantless entry into the home. It
did so, in part, because the officers knew Huddleston had “a
criminal history involving the discharge of a firearm.” Id.
It is certainly possible to distinguish Huddleston from this
case, but that is not the point of the qualified immunity test.
Villalobos’s burden is more specific. He should point to an
analogous case holding that officials violated the Fourth
Amendment, not one where they acted constitutionally. If an-
ything, Huddleston muddies the waters: it suggests a reasona-
ble officer could think a warrantless entry is acceptable, even
when the officer does not see first-hand evidence of domestic
abuse. Cf. Stewardson, 126 F.4th at 1277 (“[T]he law as it ex-
isted” at the time of the incident “would have led a reasonable
officer to conclude” his actions were “appropriate.”). When a
case holds that officials acted reasonably, that precedent would
not prompt an officer to think his own analogous conduct is
unreasonable. These cases, therefore, “clearly establish” the
law only in the rarest of circumstances.

not face exigent circumstances when they have time to get a warrant. Id.
at 1415–16. Again, this case does not clearly establish the law because of
obvious factual dissimilarities. See id. at 1414 (officers went out to lunch
for nearly two hours between receiving verbal authorization to arrest and
entering the home).
No. 25-1304 13

At oral argument, the officers argued that Villalobos did
not carry his burden on this point. That would mean the dis-
trict court could not have properly denied the officer’s motion
for summary judgment. On remand, the district court should
invite Villalobos to identify specific cases showing the law
was clearly established. 4
B. Factual Issues
Normally, this court does not send “pure questions of
law” back to the district court. Smith, 10 F.4th at 735. As dis-
cussed above, we can consider whether the district court cor-
rectly applied the qualified immunity test to undisputed or
stipulated facts. Id. at 736. That includes whether the law is
clearly established. Stewardson, 126 F.4th at 1275–79; Doe, 75
F.4th at 716–18. But in their briefs and at oral argument, the

4 For the first time at oral argument, Villalobos pointed to a case that

might satisfy the test. Hawkins v. Mitchell, 756 F.3d 983 (7th Cir. 2014); see
Oral Arg. at 14:05–14:37. There, two police officers responded to a 911 call
regarding a domestic dispute involving a person with a history of abuse.
Hawkins, 756 F.3d at 987–88. Upon arrival at the residence, the officers saw
the woman outside, spoke to her, and confirmed she had no injury. Id. at
988. Yet the officers entered the home anyway. Id. This court found no
exigent circumstances in Hawkins because the officers knew “no physical
attack had occurred” and the woman in question was outside the home
while the man was inside. Id. at 993.
Villalobos did not cite this case in his briefs to us. And as far as we can
tell, he also did not cite it for its specific factual predicate before the district
court. See Dkt. 174 at 8 (quoting Hawkins for general principles, not its
facts). Neither this court nor the district court, therefore, had an adequate
opportunity to consider the applicability of Hawkins to this case. If Villa-
lobos invokes Hawkins on remand, the district court should consider
whether the discrepancies between this case and Hawkins—including the
fact that these officers never saw the woman in question—change the way
a reasonable officer would evaluate the situation.
14 No. 25-1304

parties alerted us to additional difficulties in this case, coun-
seling against deciding the legal question at this juncture.
Villalobos argues there are disputes of fact related to his
unlawful entry theory, which foreclose appellate jurisdiction.
This argument struck us as odd. After all, the district court
granted his motion for partial summary judgment on that
claim. The court could do so only if, re-construing all facts in
the officers’ favor, it concluded there were no genuine dis-
putes of material fact. Cf. Gill v. Scholz, 962 F.3d 360, 363 (7th
Cir. 2020) (where “both parties filed cross-motions for sum-
mary judgment, all reasonable inferences are drawn in favor
of the party against whom the motion was granted”). The dis-
position of this case, therefore, suggested Villalobos’s jurisdic-
tional arguments did not have merit.
After a de novo review of the record, however, we strug-
gled to identify all the undisputed facts necessary for our le-
gal ruling. Oral argument brought less clarity. The parties
conceded disputed facts and changed the factual narrative
presented in the district court’s opinion. Though minor dis-
putes abound, two stand out: the exchange at Villalobos’s
door and the timeline of the incident.
1. The parties dispute who answered the door.
The parties disagree on whether a woman or a man re-
sponded when Picicco and Brasewicz knocked on Villalobos’s
door. The officers claim they heard only a female voice tell
them to “go away” and “that she could not open the door.” In
his deposition, Picicco claimed the woman’s response made
his “suspicion level … grow rapidly because the tone in her
voice was that of uncertainty or fear.” He felt he had “reason
No. 25-1304 15

for concern” because he had watched a person who allegedly
had a knife walk through that same door moments earlier.
But Villalobos says he also responded to the officers from
behind the door. In his statement of facts, Villalobos told the
district court that “he and his guest” told the officers to go
away, implying the “guest” was a woman. In response to the
officers’ statement of facts, he admitted a woman responded.
Yet Villalobos testified at his deposition, “I told [the officers]:
Go away. No one called you. I didn’t call you, no one here
called you, so go away, there is nothing happening here.” 5
At oral argument, counsel for both parties conceded they
dispute what happened at the door. And for the first time be-
fore us, both sides hypothesized that nobody opened it be-
cause the occupants were “having trouble getting the door
open.” 6 No record support was offered for that point.
For its part, the district court construed the facts in Villa-
lobos’s favor and concluded that both he and his guest re-
sponded at the door. It did not note this as a disputed fact.

5 The officers denied Villalobos’s statement of facts insofar as it sug-

gested a man’s voice answered at the door. Villalobos justifies his claim
that multiple people responded at the door with a cursory reference from
his deposition testimony: that “everybody said who is it” when the offic-
ers knocked. He made clear that the other people in the house “wanted to
answer,” but “I told them no because it’s my house.”
6 Compare Oral Arg. at 3:47–4:57 (counsel for the officers acknowledges

the disputed fact), with id. at 16:32–18:30 (counsel for Villalobos says he
disagrees with the officers’ characterization of the incident but believes
their version does not amount to an exigency). Counsel for the officers ex-
pressed willingness to adopt Villalobos’s version of the facts for purposes
of this appeal.
16 No. 25-1304

1. The timeline of the incident is unclear. Villalobos also makes factual claims about the timeline of this incident. In his brief, he contends, “Defendants, after knocking and being told to leave, waited for over thirty minutes before attempting entry for the second time.” Though he did not make this exact assertion before the district court, Villalobos said (and the officers disputed) that they waited to enter the house until “[a]proximately fifteen minutes after Defendant Urbanek arrived.” Yet on the officers’ telling, thirty minutes (plus or minus) elapsed from Picicco’s first conversation with the 911 caller to the encounter in which Villalobos was tased and shot. In fact, Picicco estimated that fifteen minutes elapsed between when he saw the man who allegedly held a knife and when the of- ficers entered the house. And in his deposition testimony, even Villalobos admitted the officers entered his home roughly “three, four minutes” after the exchange at the door—a much shorter delay than the “over thirty minutes” he submits on appeal. As the district court noted, and Villalobos reminds us, one factor in the exigent circumstances test can be whether officers had enough time to get a warrant. See Sutterfield v. City of Mil- waukee, 751 F.3d 542, 553, 557 (7th Cir. 2014). If we adopted Villalobos’s version of events, we would be basing our quali- fied immunity analysis on a factual claim not grounded in the record. Yet, we do not normally consider such thorny fact questions for the first time on appeal. Cf. Roberts v. Sears, Roe- buck & Co., 723 F.2d 1324, 1335 (7th Cir. 1983) (“An appellate court does not sit to adjudicate de novo the factual issues” raised in a case). No. 25-1304 17

---

Given the considerable confusion about these critical facts,
we decline to address the legal question of whether the law
was clearly established. To be sure, not every factual dispute
is “material,” even under a totality of the circumstances test.
See Tousis v. Billiot, 84 F.4th 692, 695 (7th Cir. 2023) (though
the parties disputed facts, none were “material to the relevant
legal question” of qualified immunity). And the district court
has latitude to respond to the parties’ presentation of the facts
as it sees fit. See FED R. CIV. P. 56(e). But our de novo review
yields potentially dispositive fact disputes in this record.
When the district court reconsiders the officers’ motion for
summary judgment, it could receive additional submissions
from the parties to clarify some of these facts. We do not be-
lieve these concerns destroy our appellate jurisdiction, given
that the appellee (Villalobos), not the appellants (the officers),
made a “back-door effort” to use disputed facts. Cf. Smith, 10
F.4th at 736. But Villalobos relied on these facts as a central
component of his appeal, so it would be best if the district
court reconsidered their significance in the first instance.
Further specificity about when the officers learned relevant
information will help clarify the reasonableness of their ac-
tions under the Fourth Amendment. 7
IV
Taken together, these difficulties encourage us to send this
case back to the district court to reassess the unlawful entry
issue. When exercising our jurisdiction to determine whether

7 Beyond the disputed facts identified above, there may be other facts

relevant to the totality of the circumstances to reconsider, including when
exactly the officers learned about the prior domestic violence incident.
18 No. 25-1304

appellate jurisdiction exists, this court vacates and remands
“as may be just under the circumstances.” 28 U.S.C. § 2106; cf.
Pasquino v. Prather, 13 F.3d 1049, 1050–53 (7th Cir. 1994) (va-
cating an order denying qualified immunity and remanding
because of confusion about its factual and legal predicates, cit-
ing Circuit Rule 50). Given the legal and factual hurdles to
properly resolving this appeal, the district court should facil-
itate another attempt at clarifying this issue before the rest of
the case goes to trial.
Accordingly, we VACATE the district court’s order in
part—only insofar as it denied the defendants’ motion for
summary judgment on the unlawful entry issue. And we
REMAND for further proceedings in line with this opinion. Vil-
lalobos should point to precedent putting the officers on no-
tice that their specific conduct was unlawful in 2015. We also
invite both the parties and the district court to clarify the facts
in light of the disputes raised on appeal.
VACATED AND REMANDED WITH INSTRUCTIONS