William N. Gerhartz v. DAVID RICHERT and BILL TYSON

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 13-3079, 14-1041
W ILLIAM N. GERHARTZ ,
Plaintiff-Appellant,
v.
DAVID R ICHERT and
BILL TYSON ,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:12-cv-00731-RTR — Rudolph T. Randa, Judge.
____________________
A RGUED O CTOBER 1, 2014 — DECIDED M ARCH 5, 2015
____________________
Before WOOD, Chief Judge, and R IPPLE and TINDER , Circuit
Judges.
R IPPLE, Circuit Judge. William Gerhartz brought this ac-
tion under 42 U.S.C. § 1983 against Deputy David Richert
and Sergeant Bill Tyson, two officers of the Calumet County
Sheriff’s Department. He alleged that the officers had violat-
ed his Fourth Amendment rights by ordering that his blood
be drawn, for evidentiary purposes, without a warrant. The

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2 Nos. 13-3079, 14-1041
district court granted summary judgment for the officers. It
determined that the natural dissipation of alcohol from
Mr. Gerhartz’s bloodstream was an exigent circumstance
sufficient to justify the officers’ warrantless blood draw.
Mr. Gerhartz later filed a Rule 59(e) motion to alter and
amend the judgment, which the district court denied.
Mr. Gerhartz now appeals both the district court’s grant of
summary judgment as well as its denial of his Rule 59(e) mo-
tion. For the reasons set forth in the following opinion, we
affirm the judgment of the district court.
I
BACKGROUND
A.
On the night of February 16, 2006, Mr. Gerhartz was driv-
ing south on a rural highway toward Stockbridge, Wiscon-
sin, when he lost control of his vehicle and struck an oncom-
ing car. Four officers from the Calumet County Sheriff’s De-
partment were dispatched to the scene. Deputy Richert was
the first to arrive. He spoke to Paramedic Kent J. Katalinick
who had been treating Mr. Gerhartz. Katalinick advised the
Deputy that he believed Mr. Gerhartz had been drinking al-
cohol.
Sergeant Tyson was the last officer to arrive at the scene.
After making contact with his fellow officers, he instructed
Deputy Richert to follow Mr. Gerhartz to the hospital and to
continue his investigation there; Deputy Richert did so. After
Mr. Gerhartz’s ambulance left, Sergeant Tyson spoke to
Aimee Zeinert, a member of the first responder team and,
coincidentally, a bartender for a nearby Stockbridge bar.

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Nos. 13-3079, 14-1041 3
Zeinert informed Sergeant Tyson that, earlier that evening,
she had served Mr. Gerhartz “three or possibly four glasses
of Bud Light beer.”1 Zeinert also stated that Mr. Gerhartz
told her that he had smoked “too much pot tonight.”2 Ser-
geant Tyson relayed this information to Deputy Richert, who
was still en route to the hospital. Sergeant Tyson also in-
structed Deputy Richert to arrest Mr. Gerhartz for driving
under the influence and to obtain a blood sample from
Mr. Gerhartz, either voluntarily or by force.
Upon arriving at the hospital, another sheriff’s deputy
told Deputy Richert that Paramedic Katalinick again had re-
ported smelling alcohol on Mr. Gerhartz. Based on this in-
formation, Deputy Richert ordered, without a warrant, an
evidentiary blood draw on Mr. Gerhartz pursuant to Wis-
consin’s implied consent law.3 A laboratory technician con-
1 R.40-1 at 10.
2 Id.; R.35-9 at 2.
3 Wisconsin’s implied consent law provides that, under certain specified
circumstances, any person who drives or operates a motor vehicle on a
public highway in the state
is deemed to have given consent to one or more tests of
his or her breath, blood or urine, for the purpose of de-
termining the presence or quantity in his or her blood or
breath, of alcohol, controlled substances, controlled sub-
stance analogs or other drugs, when requested to do so
by a law enforcement officer[.]
Wis. Stat. § 343.305(2). Although the parties each mention this statute in
their briefs, neither party asserts that it is relevant to our analysis on ap-
peal. Accordingly, we do not consider it when evaluating Mr. Gerhartz’s
claim.

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4 Nos. 13-3079, 14-1041
ducted the blood draw at 11:33 p.m., a little over two hours
after the accident. Mr. Gerhartz was unconscious at the time.
Test results later showed that his blood-alcohol content was
.243g/100ml.4
As a result of the accident, Mr. Gerhartz was later
charged and convicted in a Wisconsin court on one count of
injury by intoxicated use of a motor vehicle and one count of
operating a motor vehicle under the influence.
B.
Mr. Gerhartz brought this action pro se under 42 U.S.C.
§ 1983 against Deputy Richert and Sergeant Tyson, alleging
that they had violated his Fourth and Fourteenth Amend-
ment rights by ordering that his blood be drawn, for eviden-
tiary purposes, without either his consent or probable cause.
The officers moved for summary judgment. In their motion,
they contended, among other things, that exigent circum-
stances justified their decision to order the warrantless blood
draw and that, in any event, they were entitled to qualified
immunity.
The district court granted the officers’ motion for sum-
mary judgment. It first dismissed Mr. Gerhartz’s Fourteenth
Amendment claim, concluding that his allegations were
most appropriately analyzed under the more specific Fourth
Amendment. Under that provision, the court determined
4 In Wisconsin, it is illegal to drive or operate a motor vehicle with a
blood-alcohol concentration of .08g/100ml or more. See Wis. Stat.
§§ 340.01(46m)(a), 346.63(1)(b).

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Nos. 13-3079, 14-1041 5
that the natural dissipation of alcohol from Mr. Gerhartz’s
bloodstream was an exigent circumstance sufficient to justify
the officers’ warrantless blood draw. The court did not ad-
dress the second prong of the officers’ qualified immunity
defense.5
Notably, the district court’s grant of summary judgment
came approximately four months after the Supreme Court’s
decision in Missouri v. McNeely, 133 S. Ct. 1552 (2013), which
held that the natural dissipation of alcohol from a person’s
bloodstream, without more, does not constitute a per se exi-
gency sufficient to justify a warrantless blood draw. See id. at
1563.
Mr. Gerhartz subsequently filed a Rule 59(e) motion, ask-
ing the district court to alter and amend its judgment in light
of McNeely. In particular, he submitted that, under McNeely,
the district court erred in finding that exigent circumstances
were present to justify a warrantless search. After initially
noting that “Rule 59(e) motions are generally not vehicles to
introduce new evidence or advance arguments that could or
should have been presented to the district court prior to
judgment,” the court ultimately concluded that, despite
McNeely, exigent circumstances did, in fact, exist because
“Officer Richert might reasonably have believed that he was
confronted with an emergency situation in which the delay
necessary to obtain a warrant threatened the destruction of
5 See Pearson v. Callahan, 555 U.S. 223, 232 (2009) (noting that qualified
immunity entails a two-prong inquiry, the first, whether the facts as al-
leged by the plaintiff “make out a violation of a constitutional right,” and
the second, “whether the right at issue was ‘clearly established’ at the
time of defendant’s alleged misconduct”).

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6 Nos. 13-3079, 14-1041
evidence.”6 Accordingly, the court denied Mr. Gerhartz’s
request to alter or amend the judgment.
Mr. Gerhartz, now assisted by counsel, appeals both the
district court’s grant of summary judgment as well as its de-
nial of his Rule 59(e) motion as to his Fourth Amendment
claim.
II
DISCUSSION
We review a district court’s grant of summary judgment
de novo, viewing the evidence in the light most favorable to
the nonmoving party. Powers v. USF Holland, Inc., 667 F.3d
815, 819 (7th Cir. 2011). Summary judgment is appropriate
where there is “no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). Our review is not limited to the district
court’s reasons for awarding summary judgment; instead,
“we may affirm a grant of summary judgment on any alter-
native basis found in the record as long as that basis was ad-
equately considered by the district court and the nonmoving
party had an opportunity to contest it.” Best v. City of Port-
land, 554 F.3d 698, 702 (7th Cir. 2009).
A.
As a threshold argument, the defendants submit that
Mr. Gerhartz has waived the issue of whether exigent cir-
6 R.71 at 3, 5.

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Nos. 13-3079, 14-1041 7
cumstances justified the blood draw. We do not consider it
appropriate to rest our decision on the ground of waiver. As
the matter comes to us, Mr. Gerhartz had filed a complaint
in the district court in which he maintained that the defend-
ants had procured a blood sample without probable cause.
In moving for summary judgment, the defendants not only
maintained that there was probable cause but that they were
excused from having to demonstrate that probable cause be-
fore a judicial officer because of exigent circumstances. In
particular, the defendants asserted that “exigent circum-
stances existed because of the nature of the dissipation of al-
cohol from a person’s bloodstream.”7 Mr. Gerhartz, proceed-
ing pro se, did not address this argument in his response,
instead asserting that the defendants lacked probable cause.
Mr. Gerhartz’s failure to respond to the defendants’ exi-
gency argument amounted to, at most, an admission to the
facts on which the defendants’ claim of exigent circumstanc-
es was based. See Flynn v. Sandahl, 58 F.3d 283, 288 (7th Cir.
1995). “[I]t [did] not constitute a waiver by [Mr. Gerhartz] of
all legal arguments based upon those undisputed facts.” Id.
As the moving party, the defendants still “ha[d] the burden
to show that [they were] entitled to judgment under estab-
lished principles.” Adickes v. S. H. Kress & Co., 398 U.S. 144,
161 (1970) (internal quotation marks omitted); accord Keeton
v. Morningstar, Inc., 667 F.3d 877, 884 (7th Cir. 2012). A mov-
ing party who fails to discharge this burden is not entitled to
summary judgment, even if the nonmovant entirely fails to
7 R.55 at 8.

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8 Nos. 13-3079, 14-1041
respond.8 Thus, even though Mr. Gerhartz failed to address
the defendants’ exigency argument, “the court still [had to]
ascertain that judgment [was] proper as a matter of govern-
ing law.” Johnson v. Gudmundsson, 35 F.3d 1104, 1112 (7th
Cir. 1994) (internal quotation marks omitted).
Applying these principles, we do not believe that
Mr. Gerhartz waived his right to contest the district court’s
finding of exigent circumstances. Here, the defendants’
summary judgment motion was premised on the same per
se exigency theory, rejected by the Supreme Court in
McNeely. The district court accepted this theory in awarding
summary judgment. As the nonmovant, Mr. Gerhartz was
under no obligation to point out the obvious legal error in
the defendants’ exigency argument. See Flynn, 58 F.3d at 288;
8 See Johnson v. Gudmundsson, 35 F.3d 1104, 1112 (7th Cir. 1994) (“Even if
the opposing party completely fails to respond to a summary judgment
motion, Rule 56(e) permits judgment for the moving party only if appro-
priate—that is, if the motion demonstrates that there is no genuine issue
of material fact and that the movant is entitled to judgment as a matter of
law.” (emphasis in original) (internal quotation marks omitted)); see also
Adickes v. S. H. Kress & Co., 398 U.S. 144, 161 (1970) (“No defense to an
insufficient showing is required.” (internal quotation marks omitted));
Big O Tire Dealers, Inc. v. Big O Warehouse, 741 F.2d 160, 163 (7th Cir.
1984) (“Where the moving party fails to meet its strict burden of proof,
summary judgment cannot be entered even if the opposing party fails to
respond to the motion.”); Yorger v. Pittsburgh Corning Corp., 733 F.2d
1215, 1223 (7th Cir. 1984) (“[I]t would be a distortion of justice for a mov-
ing party to prevail on appellate review of a summary judgment in favor
of the movant on the ground that, notwithstanding the movant’s failure
to satisfy its burden of showing the non-existence of genuine issues of
material fact, the non-movant did not in the court below dissect the mo-
vant’s incorrect affirmative defense.”).

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Nos. 13-3079, 14-1041 9
Johnson, 35 F.3d at 1112; Glass v. Dachel, 2 F.3d 733, 739 (7th
Cir. 1993); Tobey v. Extel/JWP, Inc., 985 F.2d 330, 332 (7th Cir.
1993); Yorger v. Pittsburgh Corning Corp., 733 F.2d 1215, 1223
(7th Cir. 1984). Thus, to the extent that Mr. Gerhartz chal-
lenges the district court’s award of summary judgment
based on the court’s application of this erroneous legal
standard, we do not believe that this challenge was waived.
In any event, the district court’s decision to address the
merits of Mr. Gerhartz’s exigency argument on a post-
verdict motion preserved the issue for appeal. Although an
issue presented for the first time in a Rule 59(e) motion gen-
erally is not timely raised, “such an issue is subject to appel-
late review if the district court exercises its discretion to con-
sider the issue on the merits.” Dyson v. District of Columbia,
710 F.3d 415, 419 (D.C. Cir. 2013); accord Int’l Prod. Specialists,
Inc. v. Schwing Am., Inc., 580 F.3d 587, 600 (7th Cir. 2009)
(“[A]n issue first presented to the district court in a post-trial
brief is properly raised below when the district court exer-
cises its discretion to consider the issue.” (internal quotation
marks omitted)); Armstead v. Frank, 383 F.3d 630, 633 (7th
Cir. 2004) (recognizing that “[a]n issue presented for the first
time in a [Rule 59(e)] motion…is not preserved for appellate
review unless the district court exercises its discretion to ex-
cuse the party’s lack of timeliness and consider[s] the issue”
(third alteration in original) (internal quotation marks omit-
ted)).9 Here, following the entry of judgment, Mr. Gerhartz
9 See also Fortress Bible Church v. Feiner, 694 F.3d 208, 216 n.3 (2d Cir. 2012)
(noting that an argument first raised in a post-trial brief and considered
by the district court is properly considered on appeal); Kleinsmith v.
Shurtleff, 571 F.3d 1033, 1038–39 (10th Cir. 2009) (noting that an argument
first raised in a motion for reconsideration is preserved for appeal so
(…continued)

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10 Nos. 13-3079, 14-1041
filed a Rule 59(e) motion challenging the district court’s or-
der as inconsistent with the Supreme Court’s decision in
McNeely. Rather than treating this issue as waived, the dis-
trict court addressed Mr. Gerhartz’s argument on the merits.
The issue, therefore, is preserved for appellate review.
B.
We turn now to the merits of Mr. Gerhartz’s Fourth
Amendment claim. The Supreme Court first addressed the
issue of warrantless blood draws in Schmerber v. California,
384 U.S. 757 (1966). In Schmerber, the Court determined that
probable cause alone could justify a blood draw so long as
the officer ordering the test “might reasonably have believed
that he was confronted with an emergency, in which the de-
lay necessary to obtain a warrant, under the circumstances,
long as the district court “exercise[s] its discretion to address that chal-
lenge”); Holland v. Big River Minerals Corp., 181 F.3d 597, 605 (4th Cir.
1999) (“[A]n issue presented for the first time in a motion pursuant to
Federal Rule of Civil Procedure 59(e) generally is not timely raised; ac-
cordingly, such an issue is not preserved for appellate review unless the
district court exercises its discretion to excuse the party’s lack of timeli-
ness and consider the issue.”); Quest Med., Inc. v. Apprill, 90 F.3d 1080,
1087 (5th Cir. 1996) (“A district court has discretion to consider new the-
ories raised for the first time in a post-trial brief, and an issue first pre-
sented to the district court in a post-trial brief is properly raised below
when the district court exercises its discretion to consider the issue.” (ci-
tations omitted)).
(…continued)

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Nos. 13-3079, 14-1041 11
threatened the destruction of evidence.” Id. at 770 (internal
quotation marks omitted). Such destruction, the Court ex-
plained, was a likely consequence of the natural dissipation
of alcohol from the blood:
We are told that the percentage of alcohol in
the blood begins to diminish shortly after
drinking stops, as the body functions to elimi-
nate it from the system. Particularly in a case
such as this, where time had to be taken to
bring the accused to a hospital and to investi-
gate the scene of the accident, there was no
time to seek out a magistrate and secure a
warrant. Given these special facts, we con-
clude that the attempt to secure evidence of
blood-alcohol content in this case was an ap-
propriate incident to petitioner’s arrest.
Id. at 770–71.
Following Schmerber, several courts read the Supreme
Court’s decision as endorsing a per se exigency rule in
blood-alcohol cases—that is, that the natural dissipation of
alcohol from the blood constitutes a per se exigency. See
McNeely, 133 S. Ct. at 1558 n.2 (collecting cases). Notably, the
Supreme Court of Wisconsin was among those that took this
view, declaring in State v. Bohling, 494 N.W.2d 399 (Wis.
1993), that the exigency identified in Schmerber “was caused
solely by the fact that the amount of alcohol in a person’s
blood stream diminishes over time.” Id. at 402.
The Supreme Court rejected this understanding of
Schmerber in McNeely. In McNeely, the Court clarified that,
“while the natural dissipation of alcohol in the blood may

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12 Nos. 13-3079, 14-1041
support a finding of exigency in a specific case, as it did in
Schmerber, it does not do so categorically.” 133 S. Ct. at 1563.
Thus, the Court explained, “[w]hether a warrantless blood
test of a drunk-driving suspect is reasonable must be deter-
mined case by case based on the totality of the circumstanc-
es.” Id.
Mr. Gerhartz contends that the district court awarded
summary judgment based on the same per se exigency theo-
ry rejected in McNeely and that, under McNeely, summary
judgment was improper because there existed a genuine
dispute as to whether exigent circumstances were present. In
response, Deputy Richert and Sergeant Tyson contend, as
they did before the district court, that their decision to order
a blood draw on Mr. Gerhartz was lawful and that, in any
event, they are entitled to qualified immunity.
“The doctrine of qualified immunity protects govern-
ment officials from liability for civil damages insofar as their
conduct does not violate clearly established statutory or con-
stitutional rights of which a reasonable person would have
known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal
quotation marks omitted). Accordingly, in order to defeat a
properly raised qualified immunity defense, the plaintiff
must establish two things: “first, that the facts alleged de-
scribe a violation of a protected right; and second, that this
right was clearly established at the time of the defendant’s
alleged misconduct.” Mordi v. Zeigler, 770 F.3d 1161, 1164
(7th Cir. 2014). We have the discretion to decide which of
these two prongs to address first. See Pearson, 555 U.S. at 236.
Here, because of the undeveloped nature of the factual
record, we start (and end) our analysis with the clearly-
established prong. During the parties’ briefing of this case,

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Nos. 13-3079, 14-1041 13
we decided a similar issue. In Seiser v. City of Chicago, 762
F.3d 647 (7th Cir. 2014), we held that, prior to the Supreme
Court’s decision in McNeely, the law was not clearly estab-
lished on the issue of whether the natural dissipation of al-
cohol from the bloodstream constitutes a per se exigency. See
id. at 658. In arriving at this conclusion, we noted that, prior
to McNeely, courts were split over this issue and that many
jurisdictions—like Illinois, where the search in Seiser took
place—had adopted a per se exigency rule in blood-alcohol
cases. See id. at 657–58. Given these circumstances, the court
determined that a reasonable officer in the defendant’s posi-
tion “would have believed…that so long as there was prob-
able cause to justify a breathalyzer examination, there was
no need to consider seeking a warrant first.” Id. at 658.
Seiser was decided sixteen days before Mr. Gerhartz filed
his reply brief. In that brief, Mr. Gerhartz attempts to distin-
guish Seiser by arguing that its holding was limited to
breathalyzer tests. In particular, he submits that since a
blood draw is more intrusive than a breathalyzer test a rea-
sonable officer would not have believed that probable cause
alone was sufficient to justify a warrantless blood draw.
Although the intrusiveness of a search is certainly rele-
vant to its reasonableness under the Fourth Amendment,
Mr. Gerhartz has not identified any clearly established au-
thority that would have put the defendants on notice that
their decision to order a warrantless blood draw (as opposed
a breathalyzer test) was unlawful. Nor could he. At the time
McNeely was decided, the law regarding exigent circum-
stances in blood-alcohol cases was just as unclear with re-
gard to blood draws as breathalyzer tests. Indeed, both
McNeely and Schmerber concerned warrantless blood draws

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14 Nos. 13-3079, 14-1041
rather than breathalyzer tests. See McNeely, 133 S. Ct. at 1557;
Schmerber, 384 U.S. at 758. Our reasoning in Seiser drew no
distinction between the two. See 762 F.3d at 656–59. Accord-
ingly, we cannot distinguish Seiser on these grounds.
Rather, we conclude that Seiser is controlling in this case.
Here, the search at issue took place in Wisconsin on Febru-
ary 16, 2006. At this time, approximately seven years before
McNeely, Wisconsin case law recognized a per se exigency
rule in blood-alcohol cases. See Bohling, 494 N.W.2d at 402.10
Thus, Deputy Richert and Sergeant Tyson faced the same
lack of clearly established law that confronted the defend-
ants in Seiser. As such, they are entitled to qualified immuni-
ty.
Conclusion
Having decided that Deputy Richert and Sergeant Ty-
son’s conduct did not contravene any clearly established
law, we need not decide whether their actions in fact violat-
ed Mr. Gerhartz’s Fourth Amendment rights. Because the
defendants are entitled to qualified immunity, the judgment
of the district court is affirmed.
10 In highlighting the defendants’ reasonable reliance on State v. Bohling,
494 N.W.2d 399 (Wis. 1993), we do not mean to suggest that a state su-
preme court decision always will prove sufficient to demonstrate the
absence of clearly established law. Crucially, at the time of the defend-
ants’ actions in this case, neither this court nor the Supreme Court had
addressed whether Schmerber v. California, 384 U.S. 757 (1966), created a
per se exigency rule in blood-alcohol cases.

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