Marwan Mahajni v. Vu Do

• Court: Court of Appeals for the Seventh Circuit
• Decided: April 13, 2026
• Docket: 24-3175
• Status: Published
• Author: Ripple

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 24-3175 MARWAN MAHAJNI, Plaintiff-Appellee, v.

VU DO and SCOTT WOIDA, Defendants-Appellants. ____________________

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:24-cv-00416 — Pamela Pepper, Chief Judge. ____________________

ARGUED NOVEMBER 5, 2025 — DECIDED APRIL 13, 2026 ____________________

Before RIPPLE, KIRSCH, and LEE, Circuit Judges. RIPPLE, Circuit Judge. Marwan Mahajni brought this sec- tion 1983 action against two deputies in the Wisconsin state court system. Deputy Vu Do and Deputy Scott Woida super- vised the jury during deliberations in a state criminal case where he was the defendant. In his complaint, Mr. Mahajni claimed that the deputies violated his constitutional rights by telling the jury during deliberations that it had to reach a unanimous verdict and that a hung jury was not a permissible 2 No. 24-3175

outcome of its deliberations. He further alleged that this epi- sode resulted in his wrongful conviction. 1 The deputies filed an answer asserting qualified immunity as an affirmative defense. They then filed a Rule 12(c) motion for judgment on the pleadings. In an oral ruling, the district court denied qualified immunity to Deputy Do, who had made the statement to the jury. In the same ruling, the district court also denied without prejudice qualified immunity to Dep- uty Woida and invited him to submit further arguments at summary judgment. Unlike Deputy Do, Deputy Woida had not spoken to the jury. According to the complaint, he had violated Mr. Mahajni’s rights by failing to stop his colleague’s advice to the jury and by failing to report the incident to the presiding judge. Following the district court’s oral ruling, Deputy Woida filed this appeal challenging the denial of qualified immunity. We now hold that the district court’s action did not constitute a final adjudication of the qualified immunity issue as it re- lated to Deputy Woida. An appeal under the collateral order doctrine is therefore not currently available to him and we dismiss this appeal for want of appellate jurisdiction.

1 Mr. Mahajni’s conviction was reversed by the state courts because of the

deputies’ unauthorized intervention into the jury’s deliberations. State prosecutorial authorities declined further prosecution. No. 24-3175 3

I BACKGROUND A. Facts 2

In August 2013, Wisconsin prosecutorial authorities charged Mr. Mahajni with one count of kidnapping and four counts of second-degree sexual assault. At trial, the state court instructed the jury that “before the jury may return a verdict which may legally be received, that verdict must be reached unanimously as to each count. In a criminal case all 12 jurors must agree in order to arrive at a verdict on each count.” 3 The court also instructed the jury: If you need to communicate with the Court while you’re deliberating, send a note through the bailiff signed by the presiding juror. To have a complete record of this trial, it’s important that you communicate with the court only by writ- ten note. If you have questions, the court will talk with the lawyers before answering, so it may take some time before I can get you an answer. You should continue your deliberations while you wait for an answer. The court will answer any questions in writing or orally with anyone here in open court. 4

2 At this stage of the proceedings, we accept as true the allegations in the

complaint. 3 R.35-1 at 130:06–10.

4 Id. at 130:16–131:03. 4 No. 24-3175

Deputies Do and Woida were the bailiffs assigned for jury deliberations. The trial court administered the following oath to them: Do you solemnly swear or affirm under penalty of law that you will keep this jury together as ordered, that you will not permit any person to speak to them, and that you will not speak to them yourself unless by order of the court[?] 5 During deliberations, a juror asked Deputy Do whether the jurors could be deadlocked on any of the counts. Deputy Do told the jurors that they all had to agree on guilty or not guilty and that they were not allowed to be hung or deadlocked. Deputy Woida was present when Deputy Do made these comments, but he did not intervene to stop Deputy Do. Nor did he report the incident to the trial court. Mr. Mahajni does not allege that Deputy Woida spoke to any jurors. The jury returned a guilty verdict on one count of kidnap- ping and one count of second-degree sexual assault. After re- turning the verdict, two jurors spoke to the trial judge and for the first time learned that a hung jury was a permissible out- come. Mr. Mahajni was sentenced to thirty years in prison fol- lowed by twenty years of extended supervision. Mr. Mahajni filed a motion for a new trial, contending that Deputy Do’s comments prejudiced the jury. The trial court denied the motion as well as a motion for reconsideration. On appeal, the Wisconsin Court of Appeals held that the trial court had erred by denying the motion for a new trial without first holding an evidentiary hearing.

5 R.1, ¶ 26. No. 24-3175 5

On remand, the trial court held an evidentiary hearing. Two jurors testified that Deputy Do had told them that they must reach a unanimous decision of guilty or not guilty. They further testified that Deputy Do’s statement had influenced their decision. The trial court found that at least one juror re- ceived prejudicial extraneous information. It then vacated Mr. Mahajni’s convictions and ordered a new trial. Approxi- mately two years later, the State moved to dismiss the charges, and the state court granted the motion. By this time, Mr. Mahajni had been imprisoned for approximately six years and eight months. B. Proceedings in the District Court

Mr. Mahajni filed the present action in the United States District Court for the Eastern District of Wisconsin. He named as defendants Deputy Do, Deputy Woida, Milwaukee County, Sheriff David Clarke, ABC Insurance Company, and John Does 1 through 5.6 The complaint set forth ten claims, six of which are relevant to this appeal. 7 Count 1 alleged that all

6 According to the complaint, David Clarke was the Sheriff of Milwaukee

County at the time. John Does 1 through 5 are individuals employed by Milwaukee County who were operating under color of state law and ei- ther contributed to or failed to prevent Mr. Mahajni’s constitutional harm. ABC Insurance Company is allegedly the company that provides liability insurance to Milwaukee County. None of these entities are parties to this appeal. 7 Counts 4, 8, 9, and 10 are not directed at Deputy Do or Deputy Woida.

Count 4 alleged Monell liability against Milwaukee County and Sheriff Clarke. Count 8 alleged that Milwaukee County negligently hired, trained, and supervised Deputy Do and Deputy Woida. Count 9 is a claim for state law indemnification, asserting that under Wisconsin law, the County is obligated to pay any tort judgment entered against its 6 No. 24-3175

of the defendants violated Mr. Mahajni’s right to a fair trial under the Sixth and Fourteenth Amendments. Count 2 al- leged that all the defendants had violated Mr. Mahajni’s due process rights under the Fourteenth Amendment. Count 3 al- leged that Deputy Woida and Does 1 through 5 had failed to intervene to prevent a violation of Mr. Mahajni’s constitu- tional rights in violation of Wisconsin state law. Invoking § 1983, Count 5 alleged that Deputy Do and Deputy Woida violated Mr. Mahajni’s Fourth and Fourteenth Amendment rights against cruel and unusual punishment. Count 6 alleged that Deputy Do and Deputy Woida negligently inflicted emo- tional distress on Mr. Mahajni by violating his Fourth Amend- ment rights. Count 7 alleged that Deputy Do and Deputy Woida intentionally inflicted emotional distress on Mr. Ma- hajni by violating his Fourth Amendment rights. Deputy Do and Deputy Woida filed an answer asserting qualified im- munity. Milwaukee County, Sheriff Clarke, Deputy Do, and Dep- uty Woida moved for judgment on the pleadings. The defend- ants submitted that Mr. Mahajni’s claims were barred by the statute of limitations. Deputy Woida also argued that he was entitled to absolute and qualified immunity. Deputy Do ar- gued that he was entitled to qualified immunity. A single section of the defendants’ briefing on this motion addressed both Deputy Do’s and Deputy Woida’s qualified immunity defenses. Deputy Do and Deputy Woida did not distinguish between Mr. Mahajni’s Fourth, Sixth, and Four- teenth Amendment claims, instead stating broadly that, even

employees. Count 10 is a claim under the Wisconsin Direct Action Statute against ABC Insurance Company. No. 24-3175 7

if Mr. Mahajni could establish a violation of “his constitu- tional rights, these rights were not clearly established at the time of the alleged conduct.” 8 Notably, the briefing did not address specifically Deputy Woida’s alleged conduct. In response to this motion to dismiss, Mr. Mahajni argued that it is clearly established that a bailiff violates a defendant’s Sixth Amendment right to an impartial jury when he provides the jury with extraneous information. 9 Mr. Mahajni pointed to United States ex rel. Tobe v. Bensinger, 492 F.2d 232 (7th Cir. 1974), where we decided that a bailiff had violated a defend- ant’s Sixth Amendment right to an impartial jury by telling the jurors that there could not be a hung jury and that the gov- ernment had failed to prove that the communication was not prejudicial. Notably, Mr. Mahajni did not cite any cases dis- cussing a failure to intervene and did not mention Deputy Woida’s conduct specifically, instead treating Deputy Do and Deputy Woida as having engaged in the same conduct. The district court decided the motion by rendering an oral ruling. On the immunity issues, it denied qualified immunity to Deputy Do, ruling that United States ex rel. Tobe was an anal- ogous case and clearly established that Deputy Do’s conduct violated Mr. Mahajni’s Sixth Amendment right to an impar- tial jury. As to Deputy Woida, the district court stated that “the question is a little more complicated … because neither party separated out the allegations against Woida from the allegations against Do.” 10 More specifically, the district court

8 R.21 at 11.

9 Mr. Mahajni did not address whether there was a similar clearly estab-

lished right under the Fourth or Fourteenth Amendments. 10 R.47 at 38:08–11. 8 No. 24-3175

explained that neither party had properly addressed the qual- ified immunity issue as it applied to Deputy Woida: And neither party went into any discussion an- alyzing 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 dis- cuss a claim of failure to intervene and failure to report. So I don’t really have any help from ei- ther side in determining whether qualified im- munity applies to Woida. 11 The court then explained that, in the absence of any argu- ment on the issue, it had three options. First, it could rule that Mr. Mahajni had failed to meet his burden of persuasion be- cause he did not present argument against Deputy Woida specifically. However, the court decided against this course because it determined that Deputy Woida had not presented specific arguments in favor of qualified immunity to which Mr. Mahajni could respond. The court then passed over the second option—ordering additional briefing—and settled on the third option, denying qualified immunity to Deputy Woida without prejudice while specifically instructing him to raise an argument that addresses Deputy Woida’s conduct at summary judgment. The court explained: I am not going to extend qualified immunity to Deputy Woida at this time, but I’m making that de- cision without prejudice, which means that if the

11 Id. at 38:21–39:04. No. 24-3175 9

defendants do have an argument and -- and a detailed argument regarding the allegations with regard to Woida, they have the option to raise the qualified immunity issue again at the summary judgment phase if they choose to do so, but I am not going to dismiss him based on qualified immunity today. 12 The district court also stated that “Woida’s the one I have ab- solutely no information on one way or the other.” 13 Following the entry of the order, Deputy Do and Deputy Woida filed a Notice of Interlocutory Appeal.14 II DISCUSSION Although the parties have not questioned our jurisdiction to entertain this interlocutory appeal, we have the independ- ent duty to ensure that we have such authority. When faced with an invocation of the collateral order doctrine, our obliga- tion to scrutinize the legitimacy of our jurisdiction is, in many ways, especially important. Although Congress has delegated substantial authority to identify exceptions to the federal courts’ rule making process under the Rules Enabling Act, see 28 U.S.C. § 1292(e), the Federal Judicial Code still makes clear that, generally, federal appellate resources are to be reserved

12 Id. at 39:20–40:02 (emphasis added).

13 Id. at 53:25–54:01.

14 While Deputy Do remains a party to the appeal, no arguments have

been raised that the court erred in denying qualified immunity to him. 10 No. 24-3175

for the scrutiny of “final decisions” of the district courts. 28 U.S.C. § 1291. The federal courts have long acknowledged that faithful observance of this congressional policy choice in favor of fi- nality does not require, or even permit, slavish adherence to the view that a final decision is necessarily “the last order pos- sible to be made in a case.” Gillespie v. U.S. Steel Corp., 379 U.S. 148, 152 (1964). Rather, “the requirement of finality is to be given a ‘practical rather than a technical construction.’” Id. (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)). This understanding of finality is the established justi- fication for what has come to be known as the “collateral or- der doctrine.” Under that doctrine, a decision of the district court is appealable if it comes within “that small class which finally determine claims of right separable from, and collat- eral to, rights asserted in the action, too important to be de- nied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen, 337 U.S. at 546. The Supreme Court’s case law, as well as the case law of this court, firmly establishes that the denial of a claim of qual- ified immunity is a “final decision” subject to immediate ap- peal under the collateral order doctrine. See Behrens v. Pelletier, 516 U.S. 299, 307 (1996); Mitchell v. Forsyth, 472 U.S. 511 (1985). In Mitchell, the Supreme Court set forth succinctly the reason- ing animating this principle. The Court noted that qualified immunity is not only separate conceptually from the under- lying merits of the case but is also a right the protection of which will be lost irretrievably if it is not available to the de- fendant at the outset of the litigation. Immunity protects the government official not only from the jeopardy of incurring a No. 24-3175 11

monetary judgment but also from the burden of having to lit- igate claims of no legal merit. Mitchell, 472 U.S. at 526–27. If the district court had ruled definitively that Deputy Woida is not entitled to qualified immunity, the reasons un- derlying the collateral order doctrine certainly would justify an immediate appeal. A close examination of the record con- vinces us, however, that the district court made no such de- finitive ruling. Its concern focused on an antecedent problem: The parties had not recognized that the situation of Deputy Woida was substantially different from that of Deputy Do and certainly had not addressed adequately that difference. A decision to postpone ruling on qualified immunity is not appealable. Khorrami v. Rolince, 539 F.3d 782, 786 (7th Cir. 2008). The court’s order must have findings of fact and con- clusions of law deciding qualified immunity to be appealable. Gosnell v. City of Troy, 979 F.2d 1257, 1261 (7th Cir. 1992). In Beathard v. Lyons, we held that we did not have appellate ju- risdiction over an order that postponed ruling on qualified immunity until the record was more fully developed. 129 F.4th 1027, 1034 (7th Cir. 2025). The order stated that the de- fendants’ motion to dismiss was “denied,” however, the rest of the order made clear that “the [district] court did not think it advisable to address qualified immunity with only the alle- gations of Beathard’s complaint to inform its assessment.” Id. at 1033. Because the order did not suggest that the plaintiff had pleaded enough to overcome qualified immunity nor that plaintiff had failed to overcome qualified immunity, we held that the district court “did not settle or even tentatively decide anything about the merits of the defendants’ qualified-im- munity arguments.” Id. at 1034 (citation modified). 12 No. 24-3175

The order here is similar to the order in Beathard. The dis- trict court started by explaining that both parties had misap- prehended the qualified immunity issue as it applied to Dep- uty Woida: “so I don't really have any help from either side in determining whether qualified immunity applies to Woida.” 15 Although the court technically denied the motion, it did not address the merits of qualified immunity, nor did it hold that either party had waived its arguments. Additionally, it specifically stated that it was “not going to extend qualified immunity to Deputy Woida at this time, but I'm making that decision without prejudice” which evinces an intent to postpone ruling on the merits of the issue. 16 At the conclusion of the order, when defense counsel asked whether the ruling on Deputy Do’s immunity was with or without prejudice, the court distinguished its rulings on Deputy Do and Deputy

15 R.47 at 39:02–04. It is true that we have found no appellate jurisdiction

where the district court withholds decision on qualified immunity be- cause of a lack of factual development, because appellate review of quali- fied immunity decisions is limited to questions of law. See, e.g., Villalobos v. Picicco, 168 F.4th 1057, 1061 (7th Cir. 2026). But our precedent demon- strates that it is not the case that we have jurisdiction to hear all other qual- ified immunity orders. If the order does not “settle or even tentatively de- cide anything” about qualified immunity, we lack jurisdiction, whether the district court premised its refusal to decide on a lack of factual devel- opment or on the absence of relevant legal argument. Beathard v. Lyons, 129 F.4th 1027, 1034 (7th Cir. 2025) (citation modified); Gosnell v. City of Troy, 979 F.2d 1257, 1261 (7th Cir. 1992) (finding no appellate jurisdiction where the district court dismissed defendants’ summary judgment mo- tion without discussing their bid for qualified immunity); see also Coopers & Lybrand v. Livesay, 437 U.S. 463, 468–69 (1978). 16 R.47 at 39:20–22 (emphasis added). No. 24-3175 13

Woida, saying that its conclusion as to Deputy Do was a legal conclusion that his conduct violated a clearly established right, but by contrast, it had “absolutely no information on [Deputy Woida] one way or the other.” 17 Like the order in Beathard, this order reserves a decision on qualified immunity for a later time, specifically summary judgment. The district court simply ruled that the question of Deputy Woida’s im- munity was not ripe for adjudication. 18 There is no substan- tive district court decision on qualified immunity for us to re- view. The policy concerns animating the collateral order doc- trine therefore do not justify our permitting an interlocutory appeal. Conclusion The appeal is dismissed for want of jurisdiction. The par- ties will bear their own costs. APPEAL DISMISSED

17 Id. at 53:25–54:01.

18 It is worth noting that the district court’s ruling does not inevitably sub-

ject Deputy Woida to unnecessary discovery. Deputy Woida has the op- tion to move for summary judgment at any time. See Jacobs v. City of Chi- cago, 215 F.3d 758, 775–76 (7th Cir. 2000) (Easterbrook, J. concurring) (ex- plaining procedural tools for resolving qualified immunity after the mo- tion to dismiss stage without engaging in discovery); see also Henry v. Hulett, 969 F.3d 769, 786 (7th Cir. 2020) (“The most appropriate time to raise the qualified immunity issue is in a motion for summary judgment filed before allowing discovery.” (citation modified)). 14 No. 24-3175

KIRSCH, Circuit Judge, dissenting. We shouldn’t have to de- cide this case, but not because we lack jurisdiction. Marwan Mahajni’s lawsuit against Deputy Scott Woida should have been over when Mahajni failed to respond to Deputy Woida’s qualified immunity argument. The claims against Deputy Woida should have been dismissed a second time after the district court found that Mahajni hadn’t carried his burden to show that qualified immunity didn’t apply. And the claims against Deputy Woida should meet a swift end on remand because Mahajni still can’t point to any clearly established law that Deputy Woida violated (because it doesn’t exist). We should reverse the district court, and so I respectfully dissent. I I agree with my colleagues about the general outlines of the collateral order doctrine. While interlocutory orders (in- cluding those deciding motions to dismiss) usually are not ap- pealable, there are exceptions, including for orders rejecting the defense of qualified immunity at the dismissal stage. See Mitchell v. Forsyth, 472 U.S. 511, 524–30 (1985); Behrens v. Pelle- tier, 516 U.S. 299, 307 (1996). A denial of qualified immunity that “turns on an issue of law” is an appealable final decision under 28 U.S.C. § 1291. Mitchell, 472 U.S. at 527–30. We lack appellate jurisdiction when a district court de- clines to decide qualified immunity because the facts need further development. See Beathard v. Lyons, 129 F.4th 1027 (7th Cir. 2025); Khorrami v. Rolince, 539 F.3d 782 (7th Cir. 2008). But “[a]n order denying qualified immunity that turns on a pure legal issue is a ‘final decision’ under § 1291,” such that the col- lateral order doctrine applies, and appellate jurisdiction is se- cure. Harer v. Casey, 962 F.3d 299, 305 (7th Cir. 2020); see Chasensky v. Walker, 740 F.3d 1088 (7th Cir. 2014). This No. 24-3175 15

distinction—between denials that turn on undeveloped facts and those that turn on abstract legal analysis—is well-estab- lished. See Johnson v. Jones, 515 U.S. 304, 311 (1995). I part ways with the majority on its conclusion that we lack appellate jurisdiction to review the district court’s denial of Deputy Woida’s motion to dismiss. Citing the absence of a definitive merits ruling or other findings about the defense, my colleagues hold that the district court postponed a deci- sion on qualified immunity, such that the denial isn’t final and we lack appellate jurisdiction. Ante, at 11–13 & n.15. But the district court ruled on qualified immunity in a way that se- cures our jurisdiction: the court made a “decision” to “not ex- tend qualified immunity to Deputy Woida at this time” and made adequate factual and legal findings for us to review. It’s true that the district court suggested that its decision could change down the road and that it wanted to hear addi- tional legal argument. But “no interlocutory decision is defin- itive” and “a paucity of legal analysis may be a reason to re- verse an order but is not a reason to pretend that the judge never entered an order.” Asher v. Baxter Int’l, Inc., 505 F.3d 736, 740 (7th Cir. 2007) (citation modified); see Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12 n.14 (1983) (noting that while “virtually all interlocutory orders may be altered or amended” that does not make them inherently ten- tative for purposes of collateral order reasoning). In the im- munity context, we have found a final decision at the motion to dismiss stage despite a district court’s insistence that denial was not on the merits, Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661, 668–69 (7th Cir. 2012), when a district court denied a mo- tion to dismiss based on an erroneous holding of waiver (and so provided no merits analysis), Chasensky, 740 F.3d at 1093– 16 No. 24-3175

95, and when a district court denied a motion to dismiss with- out discussing qualified immunity at all. Hanes v. Zurick, 578 F.3d 491, 492–94 (7th Cir. 2009). We did so in each instance because the decision was final in the way that matters for in- terlocutory review—the facts didn’t require development and the law was clear. That’s what we have in this case, too. The district court made three findings of fact and conclusions of law that went to the merits of Deputy Woida’s qualified immunity argu- ments, and that—combined with an adequately developed factual record—are sufficient to secure our appellate jurisdic- tion. See Gosnell v. City of Troy, 979 F.2d 1257, 1261 (7th Cir. 1992); Beathard, 129 F.4th at 1034. First, 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. These findings were all correct. Defendants spent six pages of their brief in support of the motion on qualified im- munity and noted the specific wrongful conduct (a failure to intervene) that Deputy Woida was alleged to have commit- ted. See Hernandez v. Cook Cnty. Sheriff’s Off., 634 F.3d 906, 913 (7th Cir. 2011) (“[I]t is absolutely clear that the defendants’ undeveloped opening brief argument supplied adequate no- tice [of a qualified immunity defense] to the plaintiffs and caused them no prejudice.”). Once the defense was raised, Mahajni bore the burden of showing that it didn’t apply. See Fosnight v. Jones, 41 F.4th 916, 924 (7th Cir. 2022). And in re- sponse to the motion, Mahajni cited no authority suggesting No. 24-3175 17

that a failure to intervene to prevent an improper communi- cation with a juror was unlawful. The absence of a definitive merits ruling doesn’t mean we lack jurisdiction. See Abelesz, 692 F.3d at 668–69. “Because the district court’s refusal to address the merits of defendants’ motion asserting qualified immunity constitutes a conclusive determination for the purposes of allowing an interlocutory appeal, and the record permits this court to resolve some of defendants’ immunity claims, this court will reach the merits of those claims rather than remand them to the district court.” Chasensky, 740 F.3d at 1095 (citation modified). To sum up, the district court decided to deny qualified immunity and that de- nial turns only on abstract questions of law: (1) whether Dep- uty Woida was entitled to qualified immunity when Mahajni failed to carry his burden in showing that it doesn’t apply, and (2) whether the complaint alleged a claim that a clearly established right was violated. See Hanson, 967 F.3d at 590. That distinguishes this case from Beathard, on which the ma- jority relies, because here the denial doesn’t turn on a need for development of the factual record. Cf. 129 F.4th at 1034. Be- cause the denial in this case turns on pure legal issues, the de- cision was final and we have jurisdiction. Jackson v. Curry, 888 F.3d 259, 262–63 (7th Cir. 2018); Villalobos v. Picicco, 168 F.4th 1057, 1065 (7th Cir. 2026) (“Normally, this court does not send ‘pure questions of law’ back to the district court.”). II When, as here, the district court rejects the defense of qual- ified immunity raised in a motion to dismiss, we review the ruling de novo, accepting as true all factual allegations in the complaint and drawing reasonable inferences in the plaintiff’s favor. Chasensky, 740 F.3d at 1093. Applying that standard, 18 No. 24-3175

Deputy Woida is entitled to qualified immunity for two obvi- ous reasons. First, Mahajni’s failure, in response to the motion to dis- miss, to show that qualified immunity doesn’t apply is fatal to his claim. Fosnight, 41 F.4th at 924. The district court faulted Deputy Woida because his brief did not make arguments or cite authority specific to a failure to intervene. But the defense brief adequately raised qualified immunity on behalf of both defendants (as the district court recognized), and at that point it was Mahajni who faced the burden of overcoming qualified immunity (Deputy Woida didn’t need to affirmatively show that qualified immunity applied). See Sinn v. Lemmon, 911 F.3d 412, 418–19 (7th Cir. 2018). Deputy Woida is entitled to qualified immunity for a sec- ond reason—there’s no clearly established law that says that a bailiff who fails to stop someone else from making an im- proper statement to a juror violates a defendant’s rights. The complaint says that Deputy Woida “stood by without inter- vening to prevent” Deputy Do from telling a juror that the vote needed to be unanimous on all counts, that Deputy Woida knew that his colleague was violating his oath as bail- iff, and that he failed to tell the court about it. While there are cases suggesting that a defendant has a right to be free from direct juror interference, see, e.g., Remmer v. United States, 347 U.S. 227, 229 (1954); United States ex rel. Tobe v. Bensinger, 492 F.2d 232, 238 (7th Cir. 1974) (same); Parker v. Gladden, 385 U.S. 363, 365 (1966) (same), Mahajni has repeatedly failed to iden- tify any precedent that shows that failing to intervene to stop someone else from making an improper communication with a juror violates a clearly established right. Such a case does not exist, which means that Deputy Woida is entitled to No. 24-3175 19

qualified immunity. See Ewell v. Toney, 853 F.3d 911, 918–20 (7th Cir. 2017). Because qualified immunity protects government officials from both litigation and liability, Behrens, 516 U.S. at 305–06, federal courts must resolve immunity questions “at the earli- est possible stage in litigation,” Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citation modified). The district court didn’t do that here, despite a factual record that didn’t require further development. Yet because the district court made adequate factual and legal findings, denied Deputy Woida’s motion, and the ruling turned only on an abstract legal analysis, the decision was final and our jurisdiction is secure. Having found that defendants raised the issue, and that Mahajni failed to carry his burden in showing that the defense applied, the district court had to grant Deputy Woida’s motion. Dep- uty Woida’s part in this case should have been over then. It should be over now. And it should be over quickly on re- mand.