The case arose from a 2013 criminal trial in Wisconsin where Deputy Vu Do told jurors during deliberations that they had to reach a unanimous verdict and 'that they were not allowed to be hung or deadlocked.' Deputy Scott Woida was present during the exchange but failed to intervene or report the incident to the trial court. The jury convicted defendant Marwan Mahajni of kidnapping and sexual assault, but his convictions were later vacated when the state court found the deputy's communication had prejudiced the jury. Mahajni then spent approximately six years and eight months in prison before prosecutors dismissed the charges.
Writing for a three-judge panel, Ripple ruled that the Eastern District of Wisconsin's oral ruling did not constitute a final decision on qualified immunity for Deputy Woida. As Ripple explained, the district court 'started by explaining that both parties had misapprehended the qualified immunity issue as it applied to Deputy Woida: so I don't really have any help from either side in determining whether qualified immunity applies to Woida.' Chief Judge Pamela Pepper had denied qualified immunity to Deputy Do but specifically said she was 'not going to extend qualified immunity to Deputy Woida at this time, but I'm making that decision without prejudice.'
The court emphasized the tentative nature of the ruling, noting that Judge Pepper 'specifically instructed [Deputy Woida] to raise an argument that addresses Deputy Woida's conduct at summary judgment.' Ripple distinguished this case from situations where qualified immunity is definitively denied, writing that 'the district court simply ruled that the question of Deputy Woida's immunity was not ripe for adjudication. There is no substantive district court decision on qualified immunity for us to review.'
The procedural confusion arose because both deputies initially filed joint briefs that failed to distinguish between their different roles in the alleged constitutional violation. Deputy Do had directly spoken to the jury, while Deputy Woida was accused of failing to intervene and failing to report the incident. As Judge Pepper noted during oral argument, 'neither party went into any discussion analyzing the claims against Woida specifically. Both parties lumped Do and Woida together and spent a lot of time talking about qualified immunity and what qualified immunity is and what qualified immunity means and various cases on it, but nobody actually applied it to discuss a claim of failure to intervene and failure to report.'
The deputies had argued that their conduct was protected because the law was not clearly established at the time. In response, Mahajni cited United States ex rel. Tobe v. Bensinger, a 1974 Seventh Circuit case holding that a bailiff violated a defendant's Sixth Amendment right by telling jurors there could not be a hung jury. However, Mahajni did not cite any cases specifically addressing failure-to-intervene claims and 'did not mention Deputy Woida's conduct specifically, instead treating Deputy Do and Deputy Woida as having engaged in the same conduct.'
Circuit Judge David Kirsch dissented, arguing the court had jurisdiction and should have reached the merits. In his view, the district court made 'adequate factual and legal findings' that warranted appellate review. 'The district court found that Deputy Woida 'raised qualified immunity.' Second, the district court found that, with the defense having been raised, it was Mahajni's burden to show that qualified immunity did not apply. And third, the district court found that Mahajni had not carried that burden,' Kirsch wrote. He argued that Deputy Woida was entitled to qualified immunity because 'there's no clearly established law that says that a bailiff who fails to stop someone else from making an improper statement to a juror violates a defendant's rights.'
The majority panel included Circuit Judges Kenneth Ripple and Stephanie Lee, with Kirsch dissenting. The case returns to the district court where Deputy Woida can renew his qualified immunity arguments at summary judgment. As Ripple noted, 'the district court's ruling does not inevitably subject Deputy Woida to unnecessary discovery' because 'Deputy Woida has the option to move for summary judgment at any time.'