Elliot v. Lator

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 07a0309p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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STEVE ELLIOT; GLENDA ELLIOT; HUNTER ELLIOT;

Plaintiffs-Appellees, -

NATHAN ELLIOT; and MEGAN ELLIOT,

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No. 06-2006

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v. >

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Defendants-Appellants. -

JOSHUA LATOR and SCOTT TAYLOR,

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Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 04-74817—Gerald E. Rosen, District Judge.

Submitted: June 7, 2007

Decided and Filed: August 10, 2007

Before: MARTIN and SUTTON, Circuit Judges; GRAHAM, District Judge.*

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COUNSEL

ON BRIEF: James T. Farrell, Ann M. Sherman, OFFICE OF THE ATTORNEY GENERAL,

Lansing, Michigan, for Appellants. Christopher J. Trainor, TRAINOR & ASSOCIATES, White

Lake, Michigan, for Appellees.

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OPINION

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BOYCE F. MARTIN, JR., Circuit Judge. This case poses a curious procedural and

jurisdictional question: In a civil rights action in which defendants are denied qualified immunity

by the district court, do we have jurisdiction to hear an interlocutory appeal of this denial under the

exception carved out in Mitchell v. Forsyth, 472 U.S. 511 (1985), if the defendants have not

accompanied their assertion of qualified immunity with a motion to dismiss or for summary

judgment? We hold that failure to file such a motion runs contrary to the key purpose of qualified

immunity, as articulated in Mitchell and earlier in Harlow v. Fitzgerald, 457 U.S. 800 (1982),

namely, that the doctrine exists to provide officials with immunity from suit and not simply

*

The Honorable James L. Graham, United States District Judge for the Southern District of Ohio, sitting by

designation.

1

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immunity from liability. Neither Mitchell nor Harlow support interlocutory appellate jurisdiction

given the procedural history of the instant case. Quite to the contrary, both counsel against it.

I

Shortly after midnight on Sunday, February 21, 2004 in the town of Harrison, Michigan,

Andrew Anderson (who is not a party to this case) placed a 911 call to report that he had been

robbed at gunpoint. Defendant state troopers Joshua Lator and Scott Taylor were dispatched to

investigate. Anderson told the troopers that the robbery stemmed from a financial dispute over an

engine repair job that he had promised but never delivered. Based on this interview, the troopers

were led to suspect two likely perpetrators: William (“Billy”) Fox and Ronald (“Ronnie”) McClure.

The troopers then contacted the Clare County Sheriff’s Department as well as the Bay Area

Narcotics Enforcement Team (BAYANET), a multi-jurisdictional drug task force. From these

sources they identified several locations where Fox or McClure might be found. Lator also received

a phone call from Detective Craig Wilson of BAYANET, who allegedly told him that Ronnie

McClure “frequented” a residence at 655 North First Street in Harrison. According to Lator, Wilson

told him that he believed McClure and his family had lived at this residence at some point in the past

and that “he had had multiple prior contacts with both Fox and McClure and that [655 North First

Street] would be a possible residence where . . . McClure would have either been hiding or possibly

hid the weapon.” Lator Dep. at 63. When Wilson was deposed, however, he conceded that his

information about McClure was neither firsthand nor did he know whether it was recent or more

than a year old. As it turns out, 655 North First Street was the residence of Plaintiffs Steve and

Glenda Elliot and their three children.

Lator subsequently prepared an affidavit in support of a search warrant for 655 North First

Street. He set forth the following facts as establishing probable cause to search:

Your Affiant, Trooper Joshua Lator, is a Trooper with the Michigan State Police

based at the Mt. Pleasant Post for the last 5 ½ years.

Your Affiant is part of an ongoing investigation in the armed robbery of Andrew

Charles Anderson by William Raymond Fox and Ronald William McClure II on or

about 02/21/04 at approximately 2200 hours in the City of Harrison, Clare County,

Michigan.

As a result of the information gained through this investigation Felony Warrants

have been issued for both William Raymond Fox and Ronald William McClure II

for Armed Robbery.

Anderson stated to your Affiant that McClure had an on going dispute with him over

the purchase of an engine. Anderson stated McClure approached him in the home of

Joshua Kerns, 445 N. Fourth St., City of Harrison, Clare County, State of Michigan

and demanded that he “make the deal right”. Anderson reported that McClure told

him he knew he had $600.00 in cash. Anderson stated that Fox then entered the

room revealing a black hand gun tucked in his waistband. Anderson stated that Fox

said “Don’t make me rob you.” Anderson stated he was in fear for his life and felt

he was being robbed at gun point. Anderson stated he gave McClure five (5) twenty

dollar bills from his pocket.

Through the course of this investigation your Affiant has learned that Ronald

McClure II sometimes stays at 655 N. First St., City of Harrison, Clare County, State

of Michigan.

No. 06-2006 Elliot, et al. v. Lator, et al. Page 3

Joint App’x at 184-85. Lator identified the places to be searched as “the residence, vehicles and

outbuildings located at 655 N. First St.” Id. at 184. He identified the person and property to be

seized as: (1) “Ronald William McClure,” (2) “[a]ny vehicles located on the premises,” (3) “[a]ny

and all currency,” (4) “firearms and weapons of any kind,” and (5) “[p]roofs of residency and/or

articles of domain and control, such as but not limited to utility bills, correspondence, rent receipts,

keys to premises.” Id. Magistrate Rick Labota signed the search warrant. Troopers Lator and

Taylor executed the search of plaintiffs’ home around noon on Sunday, February 22, despite the fact

that by this time both Fox and McClure had been taken into custody, a fact of which the troopers

were fully aware because Lator had actually interviewed McClure while in custody before executing

the warrant.

The search of plaintiffs’ residence does not appear to have been a resounding success. To

the contrary, plaintiffs allege that Lator and Taylor and other officers (1) failed to wait between

knocking at and breaking down the door; (2) entered the home with weapons drawn and yelled for

Steve and Glenda Elliot and their three young children to get down on the floor; (3) handcuffed

Steve Elliot; (4) stepped on the hand of Glenda Elliot; (5) destroyed plaintiffs’ furnishings and threw

their beds around; and (6) held the family at gunpoint, and kept Mr. Elliot handcuffed, throughout

the entire 45-minute search of the home. The search of plaintiffs’ home revealed two registered

firearms, neither of which was connected in any way to the prior night’s robbery. No evidence of

criminal conduct was discovered, and accordingly, no charges were filed against any Elliot family

member in connection with the incident.

II

The Elliots filed a complaint in federal court on December 9, 2004, alleging that Troopers

Lator and Taylor violated their federal constitutional rights, as well as their rights under state law.

Specific allegations included assault and battery, false arrest, false imprisonment, excessive force,

and improper entry into a private residence without a valid search warrant. On February 9, 2005,

defendants filed an answer in which they asserted several affirmative defenses, including qualified

immunity as a general defense to all of the Elliots’ claims. After the close of discovery, on

December 13, 2005, the Elliots moved for summary judgment against defendants. On May 30,

2006, defendants responded to the Elliots’ summary judgment motion. This came over four months

after the deadline for such response had passed, but the district court entertained it nevertheless. The

troopers argued primarily that even if the search warrant they executed was ultimately found to be

invalid, they should nevertheless be protected by the good-faith exception articulated in United

States v. Leon, 468 U.S. 897 (1984). The troopers did not, however, file a cross-motion for summary

judgment on grounds of qualified immunity (or any other grounds, for that matter). They simply

made passing reference to qualified immunity in their response to the Elliots’ motion for summary

judgment, without any elaboration of the qualified immunity doctrine itself or how it is often viewed

as coextensive with the Leon good-faith exception. For example, the final paragraph of defendants’

response states:

[D]efendants request that the court find that the supporting affidavit gave the

magistrate a substantial basis for concluding that a search would uncover evidence

of wrongdoing at 655 North First Street, but even if the search warrant was issued

without the requisite showing of probable cause, . . . , given the totality of the

circumstances, Trooper Lator reasonably believed he had probable cause. Thus, the

Leon good faith exception applies. Thus, plaintiffs’ motion for summary judgment

should be denied, and defendants should be accorded qualified immunity.

Joint App’x at 149.

No. 06-2006 Elliot, et al. v. Lator, et al. Page 4

On June 1, 2006, the district court held a hearing on the Elliots’ motion for summary

judgment. The court granted the motion as to “at least one” federal constitutional claim, finding:

(i) that the search warrant pursuant to which the Defendant state troopers searched

Plaintiffs’ residence was not supported by a proper showing of probable cause to

believe that contraband or evidence of a crime would be found at this location; and

(ii) that the Defendant troopers could not rely upon a magistrate’s issuance of this

search warrant as a ground for qualified immunity, where the application in support

of the warrant was “so lacking in indicia of probable cause as to render official belief

in its existence unreasonable.”

Elliot v. Lator, 2006 WL 1806475, at *1 (E.D. Mich. June 28, 2006) (quoting Malley v. Briggs, 475

U.S. 335, 344-45 (1986)). The court then requested that the parties file supplemental briefs

addressing the Elliots’ remaining federal claims, as well as their state-law claims.

In an opinion and order dated June 28, 2006, the district court made several rulings. First,

the court reiterated its position that the Elliots were entitled to summary judgment on their central

Fourth Amendment claim—“unreasonable seizure”—because the warrant to search their home was

not supported by probable cause and because the troopers’ actions in obtaining the warrant were not

shielded by qualified immunity. Second, the court addressed an ancillary Fourth Amendment claim,

namely, that the troopers used excessive force on members of the Elliot family during their search

of 655 North First Street. The court found the two claims to be interrelated, reasoning as follows:

[U]nder the facts of this case, Plaintiffs’ claims of unlawful seizure and excessive

force are largely duplicative, since the force used against Plaintiffs was applied

principally, if not exclusively, in aid of their detention during the course of the

search. Not surprisingly, then, having already determined as a matter of law that the

detention of Plaintiffs was unreasonable, the Court further concludes that the force

employed to effect this detention also was unreasonable. . . .

Because the suspected armed robber was already in custody, the Defendant troopers

and the other members of the raid team had no reason to believe that anyone on the

premises posed a particular threat to the safety of the officers or others. Indeed, there

was no ground for suspicion that anyone within Plaintiffs’ home had any

involvement in the armed robbery that triggered the search; rather, this search was

predicated only on the assertion that the suspect “sometimes stay[ed]” at Plaintiffs’

home, so that there was some purported reason to suspect that the suspect might have

stored some of the evidence of his crime at this residence. In addition, the Court

already has noted the absence of any evidence that any Plaintiff behaved in a way

that would have triggered any concerns for the safety of the officers or others on the

premises.

Under these circumstances, the case law indicates that handcuffs and drawn weapons

would be excessive.

Id. at *11-12. Despite the district court’s strong language, however, it declined to grant summary

judgment to the Elliots on the excessive force claim. The court noted:

Defendants have identified two potential obstacles to an award of summary judgment

to Plaintiffs on their claim of excessive force. First, the pertinent record is not free

from dispute. As one example, Plaintiff Steve Elliot testified that he was handcuffed

for nearly the entire duration of the search, but Defendants have cited the testimony

of a state trooper that Mr. Elliot was handcuffed for only a brief period of perhaps

No. 06-2006 Elliot, et al. v. Lator, et al. Page 5

two or three minutes. Next, and as noted earlier, the record is not entirely clear as

to the force employed by the two named Defendant troopers, as opposed to other

members of the raid team. Accordingly, only certain aspects of Plaintiffs’ excessive

force claim are capable of resolution as a matter of law under the present record; the

precise extent of Defendants’ liability must await determination in a future

proceeding.

Id. at *12. Thus, on the two constitutional claims, the district court granted the Elliots’ motion for

summary judgment only as to one of them. The district court ruled that future proceedings were

required to determine “certain narrow issues of liability” (as to the excessive force claim) and

damages (as to the unreasonable seizure and excessive force claims). Id. at *2. Finally, the district

court treated the Elliots’ state-law claims as effectively waived, because they “were addressed in

only a perfunctory fashion in Plaintiffs’ initial summary judgment motion, and are barely mentioned

in their supplemental brief.” Id. at n.4.

On appeal, defendants ask us to review a narrow question: “Did the District Court err in

ruling that no reasonable officer under [the instant] circumstances would have believed that probable

cause supported the issuance of the warrant?” State’s Br. at 2.

III

At first blush, this seems like a straightforward collateral appeal of a denial of qualified

immunity, over which we would have jurisdiction pursuant to the collateral order doctrine. See

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (holding that a district court’s denial of qualified

immunity, “to the extent that it turns on an issue of law, is an appealable ‘final decision’ within the

meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment”). Defendants

attempt to nudge us in this direction by stating, in the jurisdictional statement of their brief, that they

“filed a Motion for Summary Judgment based upon qualified immunity,” and that they “timely filed

this interlocutory appeal of the District Court’s June 28, 2006 denial of their Motion for Summary

Judgment as to qualified immunity.” State’s Br. at 1. Yet this is a complete misrepresentation of

the actual procedural history of this case, for in actuality defendants have filed no such motion for

summary judgment. Rather, as recounted above, they simply filed an extremely belated

response—not a motion—to the plaintiffs’ motion for summary judgment. And in that response

defendants stated, almost in passing, that they should be “accorded” qualified immunity. Joint

App’x at 149. We have no idea why they did not file a motion for summary judgment on their own

behalf (after all, in most § 1983 cases that appears to be the first thing any municipal defendant will

do, regardless of the chance of success), but the fact remains that they did not. And for them to

suggest otherwise in their papers before this court is dangerously misleading.

To be sure, defendants have asserted a claim of qualified immunity. They did so both in their

response to the Elliots’ initial complaint and in their response to the Elliots’ motion for summary

judgment. And to be sure, the district court treated defendants’ qualified immunity claim seriously,

despite ultimately rejecting it. The question is whether this mere assertion of a claim of qualified

immunity, without being raised by defendants in a motion for summary judgment or a motion to

dismiss, is enough to support appellate jurisdiction when that claim is denied by the district court.

Put another way, is the district court’s ruling in this case an “appealable interlocutory decision”

under Mitchell? We think it is not.

Mitchell was a case in which, after extensive discovery, the parties filed cross-motions for

summary judgment. The plaintiff’s motion was granted by the district court and the defendant’s

motion was rejected. The district court thus scheduled further proceedings only on the issue of

damages. 472 U.S. at 517. The defendant sought immediate appeal of this denial of his motion for

summary judgment (i.e., this denial of qualified immunity), and the question before the Supreme

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Court was whether such immediate appeal of the qualified immunity issue was proper under 28

U.S.C. § 1291, the statute which confers on appellate courts jurisdiction over “appeals from all final

decisions of the district courts of the United States.” The Court answered in the affirmative, noting

that district court denials of qualified immunity fall within “that small class which finally determine

claims of right separable from, and collateral to, rights asserted in the action, too important to be

denied review and too independent of the cause itself to require that appellate consideration be

deferred until the whole case is adjudicated.” Id. at 524-25 (quoting Cohen v. Beneficial Industrial

Loan Corp., 337 U.S. 541, 546 (1949)).

In reaching this conclusion, the Court focused on those factors which animate the qualified

immunity doctrine in the first place, namely, “the general costs of subjecting officials to the risks

of trial—distraction of officials from their governmental duties, inhibition of discretionary action,

and deterrence of able people from public service.” Id. at 526 (quoting Harlow v. Fitzgerald, 457

U.S. 800, 816 (1982)). And the Court further explained that the qualified immunity doctrine was

constructed not simply to shield deserving officials from trial, but also from pre-trial matters, such

as discovery. Id. (“[E]ven such pretrial matters as discovery are to be avoided if possible, as

‘[i]nquiries of this kind can be peculiarly disruptive of effective government.’” (quoting Harlow,

457 U.S. at 816)). This is why, in federal civil rights actions, qualified immunity is frequently the

lynchpin of a defendant’s motion to dismiss on the pleadings or for summary judgment. As the

Court famously summed up, qualified immunity “is an immunity from suit rather than a mere defense

to liability.” Id. (emphasis in original); see also id. at 527 (“[T]he [district] court’s denial of

summary judgment finally and conclusively determines the defendant’s claim of right not to stand

trial on the plaintiff’s allegations.” (emphasis in original)).

The primary procedural distinction between this case and Mitchell is that there the defendant

had filed a motion for summary judgment on grounds of qualified immunity, whereas here the

troopers failed to file any such motion, only raising the qualified immunity claim as part of their

response to the Elliots’ motion for summary judgment. Is this a distinction that makes a difference?

We think it is.

On the one hand, we must be wary of elevating form over substance. For example, one

might read the Court’s language in Mitchell to suggest that it was not the denial of the defendant’s

motion for summary judgment, but rather the denial of the claim of qualified immunity, that allowed

for the interlocutory appeal. 472 U.S. at 530 (“[W]e hold that a district court’s denial of a claim of

qualified immunity, to the extent that it turns on an issue of law, is an appealable “final decision”

within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.” (emphasis

added)). On the other hand, subsequent cases construing Mitchell all seem to contemplate that

defendants are appealing from the district court’s denial of a motion for summary judgment or a

motion to dismiss. See, e.g, Behrens v. Pelletier, 516 U.S. 299, 308 (1996) (“Mitchell . . .

unmistakably envisioned immediate appeal of the denial of a defendant’s motion for dismissal or

summary judgment on the ground of qualified immunity.” (internal quotation marks and brackets

omitted)); Johnson v. Jones, 515 U.S. 304, 311 (1995) (“[I]n Mitchell [], this Court held that a

district court’s order denying a defendant’s motion for summary judgment was an immediately

appealable “collateral order” ( i.e., a “final decision”) under Cohen . . . .”); Anderson v. Creighton,

483 U.S. 635, 641 (1987) (“The principles of qualified immunity that we reaffirm today require that

Anderson be permitted to argue [as he did before the district court] that he is entitled to summary

judgment . . . .”); Kennedy v. City of Cleveland, 797 F.2d 297, 299 (6th Cir. 1986) (noting that

Mitchell “contemplates two stages at which the doctrine of immunity may be interposed in advance

of trial to avoid two distinct burdens of litigation,” and thus qualified immunity may be raised both

in a motion to dismiss or in a motion for summary judgment).

More importantly, this is clearly a scenario in which form has substance, especially in light

of what the Court has said about the rationale for the qualified immunity doctrine. Imagine, for

No. 06-2006 Elliot, et al. v. Lator, et al. Page 7

example, that we were to exercise our jurisdiction to hear the troopers’ interlocutory appeal in this

case. Imagine further that we were to reverse the decision of the district court and find the troopers

entitled to qualified immunity on the Elliots’ unreasonable seizure claim, just as the troopers had

argued in their response to the Elliots’ motion for summary judgment. This would be the equivalent

of our finding the troopers’ affirmative defense of qualified immunity to be meritorious, and it would

force the district court on remand to deny the Elliots’ motion for summary judgment. However, as

a response to a plaintiff’s motion for summary judgment, a meritorious affirmative defense simply

puts the case back into the realm of the jury, because it indicates that there exist facts which, when

viewed in light most favorable to the defendant (the non-moving party), could permit the defendant

to prevail at trial. Thus, without a motion or cross-motion for summary judgment from the troopers

(i.e., the defendants), our ruling in their favor would most likely result in the case being sent back

for a full-blown trial. Ironically, this would subject the troopers to additional trial proceedings,

which is the exact opposite of what officers hope to achieve by raising the qualified immunity issue

on interlocutory appeal.

In other words, if we were to exercise jurisdiction and affirm the district court on the

qualified immunity issue, the district court’s grant of summary judgment in favor of the Elliots

would stand, leaving only a damages proceeding to be conducted. But if we were to exercise

jurisdiction and reverse the district court, this would have the perverse result not of shielding the

public officials from trial, but of likely subjecting them—at least in the short run—to more trial than

they currently face. The troopers’ “risks of trial,” Harlow, 457 U.S. at 816, as well as the costs

attendant to these risks, would be increased, not decreased. This is completely at odds with the

underlying purpose of qualified immunity, which is to protect officials not simply from liability, but

from suit itself, that is, from unnecessary litigation proceedings.

This is not to say that if we decline jurisdiction the troopers might not, in the long run, face

similar prospects of trial. After all, if we decline jurisdiction the district court will conduct a

damages proceeding on the unreasonable seizure issue, at which point the troopers can still appeal

both liability and damages—this time as a direct, not interlocutory, appeal. If we then were to

reverse as to liability (for example, because the question turned on a material issue of disputed fact),

then summary judgment in favor of the Elliots would be denied and the issue would go to trial. Thus

we do not decline jurisdiction in this case because we think it will guarantee defendants the absolute

lowest quantum of trial proceedings. Rather, we decline jurisdiction because without having filed

a motion for summary judgment, defendants have shown no particular inclination not to go to trial.

As such, they should not necessarily benefit from rules designed to further this aim. Indeed, while

we do not pass judgment on the merits of defendants’ qualified immunity claim, we point out only

this: the more likely it is to succeed, the more inexplicable is defendants’ failure to file a motion for

summary judgment. If a defendant is genuinely interested in cutting off future trial proceedings, the

logical (and proper) vehicle for this is a well-briefed motion to dismiss or for summary judgment,

not an end-run interlocutory appeal.

The existence of the Elliots’ additional Fourth Amendment claim for excessive force

reinforces this analysis. Unlike the unreasonable seizure claim, the district court denied summary

judgment in favor of the Elliots with respect to this excessive force claim. Elliot, 2006 WL

1806475, at *11-12. Still, defendants appear not to have challenged this claim, either in their

response to the Elliots’ motion for summary judgment or in the instant appeal. Perhaps they believe

that if they are accorded qualified immunity with respect to the unreasonable seizure claim, then it

should follow that they be immune from the excessive force claim as well. Not so. The two claims

are related, to be sure, but they are not inseparable, nor does the outcome of one dictate the outcome

of the other. For example, even if the troopers had a squeaky clean warrant to search the Elliots’

home (or even if, under the circumstances, they were entitled to reasonably rely on a not-so-

squeaky-clean warrant), they still could have violated the Elliots’ constitutional rights during the

execution of the search warrant. The mere facial validity of the warrant, or indeed the officers’

No. 06-2006 Elliot, et al. v. Lator, et al. Page 8

reasonable reliance on it, would not shield them from liability for all actions taken pursuant to that

warrant. The district court recognized this distinction as well, noting as follows:

It would have been possible, in the Court’s view, for Defendants to limit their

liability by conducting themselves differently upon entering Plaintiffs’ home —

Defendants could have elected, for example, to forgo any forcible detention of

Plaintiffs while executing the search warrant. This was the matter that the Court

invited the parties to discuss in their supplemental briefs, but that Plaintiffs (and

Defendants) largely failed to address — namely, whether Plaintiffs were entitled to

summary judgment in their favor as to any additional constitutional or state-law

violations allegedly committed by Defendants upon entering Plaintiffs’ home,

beyond the Fourth Amendment violation committed by entering the home pursuant

to a warrant issued without probable cause.

Elliot, 2006 WL 1806475, at *11 n.20 (emphasis in original).

In light of their utter failure to raise appropriate defenses or motions to dismiss as to the

excessive force claim, the troopers undoubtedly will be going to trial on certain aspects of it. Thus,

even if we were to exercise jurisdiction as to the qualified immunity denial on the unreasonable

seizure claim, and even if we were to reverse the decision of the district court and grant qualified

immunity to the troopers, and even if upon remand the troopers could somehow parlay our ruling

into a motion for summary judgment on the unreasonable seizure claim, they still would not be

spared trial on the excessive force claims.

IV

The Supreme Court has seen fit to allow interlocutory appeals from the Mitchell-like scenario

in which a civil rights defendant is denied a motion to dismiss or for summary judgment. But the

Court has also counseled against overuse of the doctrine:

Given [28 U.S.C. § 1291], interlocutory appeals—appeals before the end of district

court proceedings—are the exception, not the rule. The statute recognizes that rules

that permit too many interlocutory appeals can cause harm. An interlocutory appeal

can make it more difficult for trial judges to do their basic job—supervising trial

proceedings. It can threaten those proceedings with delay, adding costs and

diminishing coherence. It also risks additional, and unnecessary, appellate court

work either when it presents appellate courts with less developed records or when

it brings them appeals that, had the trial simply proceeded, would have turned out to

be unnecessary.

Johnson, 515 U.S. at 309. Because interlocutory appeals are “the exception, not the rule,” the most

prudent thing for us to do in this case is to let the lower court proceedings play out until conclusively

resolved, at which point Troopers Lator and Taylor may bring an appeal from this final judgment

if they so desire. Unlike Mitchell, and unlike Cohen, this case presents a multitude of reasons for

deferring our appellate consideration “until the whole case is adjudicated.” Cohen, 337 U.S. at 546.

Accordingly, we decline to exercise jurisdiction over defendants’ interlocutory appeal, and

thus DISMISS and REMAND to the district court for completion of its proceedings.