Melinda Thompson v. City of Lebanon

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 16a0174p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

MELINDA THOMPSON, Individually and as ┐

Administrator of the Estate of Gregory Thompson, │

Jr., │

Plaintiff-Appellee, │

> No. 14-5711

│

│

v.

│

│

CITY OF LEBANON, TENNESSEE; DAVID MCKINLEY, │

Officer; MITCHELL MCDANNALD, Patrol Officer, │

Defendants-Appellants. │

┘

Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 3:11-cv-00392—Todd J. Campbell, District Judge.

Argued: June 11, 2015

Decided and Filed: July 26, 2016

Before: BATCHELDER and STRANCH, Circuit Judges; HOOD, District Judge.*

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COUNSEL

ARGUED: Mark E. McGrady, FARRAR & BATES, LLP Nashville, Tennessee, for Appellant

City of Lebanon. Robert M. Burns, HOWELL & FISHER, PLLC, Nashville, Tennessee, for

Appellants McKinley and McDannald. Andrew C. Clarke, LAW OFFICES OF ANDREW C.

CLARKE, Memphis, Tennessee, for Appellee. ON BRIEF: Mark E. McGrady, William N.

Bates, FARRAR & BATES, LLP Nashville, Tennessee, for Appellant City of Lebanon. Robert

M. Burns, HOWELL & FISHER, PLLC, Nashville, Tennessee, for Appellants McKinley and

McDannald. Andrew C. Clarke, LAW OFFICES OF ANDREW C. CLARKE, Memphis,

Tennessee, Danese K. Banks, Ursula Y. Holmes, THE COCHRAN FIRM – MEMPHIS,

Memphis, Tennessee, for Appellee.

*

The Honorable Denise Page Hood, Chief United States District Judge for the Eastern District of Michigan,

sitting by designation.

1

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BATCHELDER, J., delivered the opinion of the court in which HOOD, D.J., joined, and

STRANCH, J., joined in part. STRANCH, J. (pp. 8–13), delivered a separate opinion concurring

in part and dissenting in part.

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OPINION

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ALICE M. BATCHELDER, Circuit Judge. In this interlocutory appeal from a denial of a

motion for summary judgment, the defendant police officers argue that the plaintiff’s evidence

did not create a genuine dispute of material fact so as to overcome their assertion of qualified

immunity. We establish our appellate jurisdiction and AFFIRM.

I. FACTS AND PROCEDURAL HISTORY

In the early morning hours of April 28, 2010, Gregory Thompson was driving his car

erratically on a two-lane Tennessee highway. After nearly colliding head on with City of

Lebanon Police Officer David McKinley, Thompson reversed course and sped away. Officer

McKinley gave chase, later joined by fellow Officer Mitchell McDannald. After approximately

six minutes of high-speed driving, Thompson swerved, spun 360 degrees, and ran off the road

into a ditch.

Once the officers came to a stop, Officer McKinley exited his patrol car, ran toward

Thompson’s crashed car with firearm drawn, and fired one round. Officer McDannald followed

Officer McKinley with his own firearm drawn; after Officer McKinley’s shot, Officer

McDannald aimed at Thompson’s car and fired thirteen rounds. The shooting ended within

nineteen seconds of the crash. Thompson sat behind the wheel of his vehicle the entire time and

did not make any threatening moves. It is unknown whether he was even conscious at the time.

Thompson died at the scene due to the gunshot wounds.

Melinda Thompson, Thompson’s stepmother and the administrator of his estate, sued

Officers McKinley and McDannald, their supervisors, and the City of Lebanon under 42 U.S.C.

§ 1983 and Tennessee state law. She alleged that Officers McKinley and McDannald used

No. 14-5711 Thompson, et al. v. City of Lebanon, et al. Page 3

excessive force to seize Thompson in violation of his Fourth Amendment rights, and that the

other defendants were liable for the officers’ actions.

All defendants moved for summary judgment, Officers McKinley and McDannald on

grounds of qualified immunity. The district court noted a number of disputed facts surrounding

the alleged constitutional violation, including “whether McKinley intended to shoot and the

trajectory of his bullet,” and “whether there continued to be a perceived risk from Thompson

even after McDannald fired the first, second, third, or fourth through twelfth shots at him.” Op.

at 22, 28. Viewing the evidence in the light most favorable to the plaintiff, the district court held

that Officers McKinley and McDannald were not entitled to qualified immunity. The court also

denied the City’s motion for summary judgment on Thompson’s § 1983 claims of failure to

screen, failure to train, and failure to supervise, investigate, and discipline, upon finding genuine

disputes of material fact on these issues. Summary judgment on the state-law claims was denied

on the same basis. The district court granted the officers’ supervisors qualified immunity, and

dismissed those defendants from the case.

Officers McKinley and McDannald then filed this interlocutory appeal, arguing that the

district court erred in denying their motion for summary judgment on grounds of qualified

immunity. The City joined the appeal under a theory of pendent appellate jurisdiction.

II. ANALYSIS

Qualified immunity shields government officials from standing trial for civil liability in

their performance of discretionary functions unless their actions violate clearly established rights.

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A plaintiff who brings a § 1983 action against

such an official bears the burden of overcoming the qualified immunity defense. Quigley v.

Tuong Vinh Thai, 707 F.3d 675, 681 (6th Cir. 2013). At the summary judgment stage, the

plaintiff must show that (1) the defendant violated a constitutional right and (2) that right was

clearly established. Id. at 680. In so doing, the plaintiff must, at a minimum, offer sufficient

evidence to create a “genuine issue of fact,” that is, “evidence on which [a] jury could reasonably

find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 256 (1986).

No. 14-5711 Thompson, et al. v. City of Lebanon, et al. Page 4

If the district court determines that the plaintiff’s evidence would reasonably support a

jury’s finding that the defendant violated a clearly established right, it must deny summary

judgment. DiLuzio v. Vill. of Yorkville, 796 F.3d 604, 609 (6th Cir. 2015). The denial of

summary judgment is ordinarily not a final decision within the meaning of 28 U.S.C. § 1291 and

is not immediately appealable. But the “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 [] § 1291

notwithstanding the absence of a final judgment.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).

We may decide an appeal challenging the district court’s legal determination that the

defendant’s actions violated a constitutional right or that the right was clearly established. Id.

We may also decide an appeal challenging a legal aspect of the district court’s factual

determinations, such as whether the district court properly assessed the incontrovertible record

evidence. See Plumhoff v. Rickard, 572 U.S. --, 134 S. Ct. 2012, 2019 (2014); Roberson v.

Torres, 770 F.3d 398, 402 (6th Cir. 2014). And we may decide, as a legal question, an appeal

challenging the district court’s factual determination insofar as the challenge contests that

determination as “blatantly contradicted by the record, so that no reasonable jury could believe

it.” Scott v. Harris, 550 U.S. 372, 380 (2007); see also Plumhoff, 134 S. Ct. at 2020.

We may not, however, decide an appeal challenging the district court’s determination of

“‘evidence sufficiency,’ i.e., which facts a party may, or may not, be able to prove at trial.”

Johnson v. Jones, 515 U.S. 304, 313 (1995). Because such a challenge is purely fact-based, it

“does not present a legal question in the sense in which the term was used in Mitchell,”

Plumhoff, 134 S. Ct. at 2019, and is therefore not an appealable “final decision” within the

meaning of 28 U.S.C. § 1291. These types of prohibited fact-based (“evidence sufficiency”)

appeals challenge only the plaintiff’s allegations (and the district court’s acceptance) of “what

[actually] occurred[] or why an action was taken or omitted,” Ortiz v. Jordan, 562 U.S. 180, 190

(2011), who did it, Johnson, 515 U.S. at 307, or “nothing more than whether the evidence could

support a [jury’s] finding that particular conduct occurred,” Behrens v. Pelletier, 516 U.S. 299,

313 (1996). We have also explained that the defendant-appellant may not challenge the

inferences the district court draws from those facts, as that too is a prohibited fact-based appeal.

See Romo v. Largen, 723 F.3d 670, 673–74 (6th Cir. 2013).

No. 14-5711 Thompson, et al. v. City of Lebanon, et al. Page 5

When legal and factual issues are confused or entwined, “we must ‘separate an appealed

order’s reviewable determination (that a given set of facts violates clearly established law) from

its unreviewable determination (that an issue of fact is “genuine”).’” Roberson, 770 F.3d at 402

(quoting Johnson, 515 U.S. at 319). In the same way, we separate an appellant’s reviewable

challenges from the unreviewable. DiLuzio, 796 F.3d at 610. In other words, we “ignore the

defendant’s attempts to dispute the facts and nonetheless resolve the legal issue, obviating the

need to dismiss the entire appeal for lack of jurisdiction.” Estate of Carter v. City of Detroit,

408 F.3d 305, 310 (6th Cir. 2005).

A substantial portion of the officers’ brief focuses on the insufficiency of the evidence

before the district court to create a material issue of fact. They claim that the evidence showed

that Officer McKinley’s shot was accidental, and that no evidence showed that Thompson

submitted to the officers’ authority. They challenge the district court’s observation that

Thompson may not have been conscious. We lack jurisdiction to review these arguments.

Nevertheless the officers raise three legal issues which we can decide on the basis of the

plaintiff’s version of the facts as recognized by the district court. On each issue, we affirm the

district court’s denial of summary judgment.

The first legal issue is whether Officer McKinley seized Thompson. Officer McKinley

argues that the district court erred in relying on Floyd v. City of Detroit, 518 F.3d 398 (6th Cir.

2008), to conclude that he did. Floyd affirmed the denial of qualified immunity on facts similar

to those in this case. Officers Quaine and Reynoso both fired their guns at Ronald Floyd under

circumstances which did not justify the use of deadly force. Id. at 402–03. It was undisputed

that Officer Quaine’s bullet did not hit Floyd, and that Officer Reynoso’s did. Id. at 402. The

court reasoned that “Quaine’s firing his weapon at Floyd was a show of authority that actually

had the intended effect of contributing to Floyd’s immediate restraint”—and it was thus a

seizure. Id. at 406. Officer Quaine was also partially responsible for Officer Reynoso’s actions

because “Quaine’s own use of deadly force escalated the situation by unambiguously signaling

that such force was called for.” Id. at 406–07.

No. 14-5711 Thompson, et al. v. City of Lebanon, et al. Page 6

Floyd directly applies to the plaintiff’s version of the facts. The plaintiff presented

evidence that Officer McKinley’s shot was intentional, not accidental as he claimed. The district

court summarized this evidence as follows:

(1) McDannald’s interrogatory responses stated that at the time of the shooting,

“Thompson’s driver side window was down,” calling into question McKinley’s

statement that he was attempting to remove his baton to break Thompson’s

window; (2) there are conflicting assessments of whether the video evidence

shows McKinley transitioning his weapon or stumbling; [(3)] McDannald’s story

about what he observed when he first started shooting has changed over time;

(4) Officer Paris observed McKinley standing upright with his gun trained on

Thompson while McDannald was shooting; and (5) McKinley did not initially

inform the sergeant on the scene that he slipped or that his shot was accidental.

Op. at 20. On these facts Officer McKinley’s shot, leading as it did to Officer McDannald’s

shots, “had the intended effect of contributing to [Thompson’s] immediate restraint,” and under

Floyd this was a seizure. Floyd, 518 F.3d at 406. It does not matter that the plaintiff has

admitted that Officer McKinley’s bullet did not hit Thompson. See Appellants’ Br. of Officers

McKinley & McDannald, App. R. 41 at 42 (quoting the plaintiff’s admission). The district court

correctly applied Floyd to the plaintiff’s version of the facts, and we affirm the district court’s

denial of summary judgment on this issue.

The second legal issue is whether Officer McKinley’s actions—as described by the

plaintiff’s evidence—were objectively unreasonable, and whether the law clearly established that

unreasonableness at the time of the incident. Again, on the plaintiff’s version of the facts, the

answer to both questions is “yes.” The officers concede that “Thompson made no efforts to flee

the vehicle, and that[] the total time during which McKinley exited his vehicle, ran towards the

crash site, descended the embankment, gave Thompson two commands, and wielded and

discharged his weapon was less than fifteen seconds.” Op. at 24. And as we have already noted,

the plaintiff presented evidence that Officer McKinley fired his weapon intentionally. It is

clearly established that using deadly force against a suspect who does not pose a threat to anyone

and is not committing a crime or attempting to evade arrest violates the suspect’s Fourth

Amendment rights. Murray-Ruhl v. Passinault, 246 F. App’x 338, 347 (6th Cir. 2007);

Ciminillo v. Streicher, 434 F.3d 461, 467 (6th Cir. 2006). The officers cite two cases to support

their contrary conclusion, but in both of these cases the discharge of the weapon was

No. 14-5711 Thompson, et al. v. City of Lebanon, et al. Page 7

undisputedly accidental. Tallman v. Elizabethtown Police Dep’t, 167 F. App’x 459, 463 (6th

Cir. 2006); Leber v. Smith, 773 F.2d 101, 105 (6th Cir. 1985). Here, because the plaintiff

provided evidence that McKinley’s shot was not accidental, Tallman and Leber are inapposite.

We affirm the district court’s denial of summary judgment on grounds of qualified immunity to

Officer McKinley.

The third and final legal issue presented on appeal is whether Officer McDannald’s

actions were objectively unreasonable, and whether the law was clearly established. Again,

looking at the plaintiff’s version of the facts, we affirm the district court’s denial of qualified

immunity. If a jury were to believe the plaintiff’s version of the events, it could find that a

reasonable officer would have been on notice that firing thirteen rounds into Thompson’s vehicle

and person violated his Fourth Amendment rights “when Thompson had been seen to do nothing

more than flee from police during the vehicular pursuit for potential driving under the influence.”

Op. at 25; see also Murray-Ruhl, 246 F. App’x at 347 (recognizing that Tennessee v. Garner,

471 U.S. 1 (1985), provides a clearly established right against the use of deadly force when there

is no reason “to believe that the suspect pose[s] an immediate risk of death or serious danger”

(quoting Smith v. Cupp, 430 F.3d 766, 776 (6th Cir. 2005) (alteration omitted))).

Because we conclude that the district court correctly denied the defendants summary

judgment on whether Officers McKinley and McDannald committed a constitutional violation,

we lack pendent appellate jurisdiction over the City’s interlocutory appeal of the denial of its

summary judgment motion. See Martin v. City of Broadview Heights, 712 F.3d 951, 963 (6th

Cir. 2013) (noting that such issues are only reviewable on interlocutory appeal under the court’s

pendent appellate jurisdiction). We likewise lack pendent appellate jurisdiction to review the

district court’s denial of summary judgment on the plaintiff’s state-law claims.

III. CONCLUSION

We therefore DENY the plaintiff’s motion to dismiss for lack of appellate jurisdiction as

to the issues of law raised by Officers McKinley and McDannald, and we AFFIRM the district

court’s denial of summary judgment as to those issues. We GRANT the plaintiff’s motion as to

the City’s appeal and in all other respects.

No. 14-5711 Thompson, et al. v. City of Lebanon, et al. Page 8

______________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

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STRANCH, Circuit Judge, concurring in part and dissenting in part. I concur in the

majority’s conclusion that we lack jurisdiction to review the defendants’ evidence-based

arguments and respectfully dissent from the conclusion that we have jurisdiction to review other

issues. Our cases that define the limits of interlocutory appellate jurisdiction over denials of

qualified immunity involving factual disputes—Phelps v. Coy, 286 F.3d 295 (6th Cir. 2002),

Beard v. Whitmore Lake School District, 402 F.3d 598 (6th Cir. 2005), Estate of Carter v. City of

Detroit, 408 F.3d 305 (6th Cir. 2005), and McKenna v. City of Royal Oak, 469 F.3d 559 (6th Cir.

2006)—show that we lack jurisdiction over any aspect of this case.

I dissent not because I dispute the outcome proposed by the majority but because I

believe we must honor the limitations—set by Congress, the Supreme Court, and our own

precedent—that govern interlocutory jurisdiction. The final judgment rule embodied in

28 U.S.C. § 1291 is deeply rooted in American law, and the exception carved out for orders

denying qualified immunity is a narrow one. See Phillips v. Roane Cty., 534 F.3d 531, 537–38

(6th Cir. 2008); Starcher v. Corr. Med. Sys., Inc., 144 F.3d 418, 422 (6th Cir. 1998). An order

denying “qualified immunity is immediately appealable only if the appeal is premised not on a

factual dispute, but rather on ‘neat abstract issues of law.’” Phillips, 534 F.3d at 538 (quoting

Johnson v. Jones, 515 U.S. 304, 317 (1995)). There are sound policy reasons supporting this

statutory limitation and our precedent defining its bounds. As the Supreme Court has cautioned,

an overly permissive approach to interlocutory appeals can undermine the core function of trial

courts and can diminish the efficiency and coherence of our judicial system. See Johnson,

515 U.S. at 309 (recognizing that “rules that permit too many interlocutory appeals can cause

harm” and that such appeals “can make it more difficult for trial judges to do their basic job”).

In Estate of Carter, we explained that if “aside from [any] impermissible arguments

regarding disputes of fact, [a] defendant [appealing a qualified immunity denial] also raises the

purely legal question of whether the facts alleged . . . support a claim of violation of clearly

established law, then there is an issue over which this court has jurisdiction.” 408 F.3d at 310

No. 14-5711 Thompson, et al. v. City of Lebanon, et al. Page 9

(quoting Berryman v. Rieger, 150 F.3d 561, 562 (6th Cir. 1998)). Estate of Carter noted one

other limited area of jurisdiction. Relying on our precedent in two prior cases, Phelps v. Coy and

Beard v. Whitmore Lake School District, we explained that “this court can ignore the defendant’s

attempts to dispute the facts and nonetheless resolve the legal issue, obviating the need to dismiss

the entire appeal for lack of jurisdiction.” Estate of Carter, 408 F.3d at 310 (citing Phelps, 286

F.3d at 298–99; Beard, 402 F.3d at 602 n.5). Phelps and Beard provide both the authority for

and the parameters governing this proposition. Phelps explains that we have jurisdiction to

disregard defendants’ attempts to dispute plaintiffs’ facts only in cases where “the legal issues

are discrete from the factual disputes[.]” 286 F.3d at 298. Beard holds that interlocutory

jurisdiction over appeals from denials of qualified immunity involving disputed facts only exists

where “some minor factual issues are in dispute” and “it does not appear that the resolution of

[such] factual issues is needed to resolve the legal issues” also presented. 402 F.3d at 602 n.5;

see also Claybrook v. Birchwell, 274 F.3d 1098, 1103 (6th Cir. 2001). If, on the other hand,

disputed factual issues are “crucial to” a defendant’s interlocutory qualified immunity appeal, we

may not simply ignore such disputes and we remain “obliged to dismiss [the appeal] for lack of

jurisdiction.” Phelps, 286 F.3d at 298; see also McKenna, 469 F.3d at 561.

Beard provides an example of “minor” factual disputes that a court has jurisdiction to

overlook on interlocutory appeal: in that case, the parties agreed that the defendant teachers

strip-searched the plaintiffs, a group of male and female gym students, after one student’s prom

money was reportedly stolen, see 402 F.3d at 601–06, and the only factual disputes on appeal

concerned certain details of those searches that need not be decided to “resolve the legal issue”

presented, id. at 602 n.5. We proceeded to find constitutional violations and to determine that

the law, at the time the searches were conducted, was not clearly established. See id. at 606–08.

McKenna v. City of Royal Oak lies at the other end of the spectrum and involves the type of core

factual disputes that we may not ignore on interlocutory appeal because they are indivisible from

the legal arguments and, thus, deprive us of jurisdiction. There the defendant police officers had

handcuffed a man who was having a seizure and contended on appeal, contrary to the district

court’s finding of genuine disputes, both that the plaintiff was not aware of what happened and

that he had become violent and aggressive. The officers relied on their own version of the facts

to argue that the plaintiff “was not ‘seized’ within the meaning of the Fourth Amendment” and

No. 14-5711 Thompson, et al. v. City of Lebanon, et al. Page 10

that they either did not act unreasonably or that no reasonable officer could have known that their

actions were unlawful. McKenna, 469 F.3d at 561. We dismissed for lack of jurisdiction and, in

so doing, expressly distinguished McKenna from Estate of Carter:

This case is not like Estate of Carter, 408 F.3d at 310, where this court found that

it could “ignore the defendant’s attempts to dispute the facts and nonetheless

resolve the legal issue, obviating the need to dismiss the entire appeal for lack of

jurisdiction,” because here the officer-defendants have in fact made no legal

argument for qualified immunity which can be extracted from their reliance on

disputed facts.

Id. at 562 n.2. “It may be[,]” we observed in McKenna, “that purely legal arguments for granting

qualified immunity relying on the facts taken in the light most favorable to McKenna could have

been advanced in this case.” Id. at 562. But “because genuine issues of material fact regarding

the officers’ qualified immunity claim do exist, and because the officers have in fact made no

arguments concerning the denial of qualified immunity that do not rely on disputed facts, this

court does not have jurisdiction over this part of their appeal.” Id.

At least six other circuits have embraced this approach, drawing the same jurisdictional

line with respect to factual disputes in interlocutory appeals from denials of qualified

immunity—i.e., these circuits also take as their jurisdictional starting point any facts that the

district court deemed disputed and whether or not defendants’ legal arguments on interlocutory

appeal depend upon those facts. In Cady v. Walsh, 753 F.3d 348 (1st Cir. 2014), a case

involving a claim of deliberate indifference to a suicidal detainee’s serious medical needs, the

First Circuit addressed the jurisdictional limits on such appeals, noting “that a ‘district court’s

pretrial rejection of a qualified immunity defense is not immediately appealable to the extent that

it turns on either an issue of fact or an issue perceived by the trial court to be an issue of fact.’”

Id. at 359 (emphasis in original) (quoting Stella v. Kelley, 63 F.3d 71, 74 (1st Cir. 1995)). The

First Circuit held that it lacked jurisdiction where the defendants failed to “separate their

qualified immunity arguments from their merits-based ones[.]” Id. at 361; see also id.

(“[N]owhere in the defendants’ briefs does there appear any developed argument that the

defendants are entitled to summary judgment even if the district court’s conclusions about the

record were correct.”). “Because the defendants fail[ed] to pose even the qualified immunity

question in a manner that would permit [the court] to conclude that ‘the answer to it does not

No. 14-5711 Thompson, et al. v. City of Lebanon, et al. Page 11

depend upon whose account of facts is correct,’” the First Circuit concluded that it “lack[ed] the

authority to provide an answer” and dismissed the appeal for lack of jurisdiction. Id. (quoting

Stella, 63 F.3d at 75). The Fourth Circuit case Culosi v. Bullock, 596 F.3d 195 (4th Cir. 2010),

involved a claim of excessive force during arrest based on a fatal shooting that the defendant

officer contended was accidental. There the Fourth Circuit looked to “the district court’s

assessment of the record evidence[,]” declaring its own agreement or disagreement with that

assessment to be “of no moment in the context of [an] interlocutory appeal” because the

defendant cannot appeal a “summary judgment order insofar as that order determines whether or

not the pretrial record sets forth a ‘genuine’ issue of fact for trial.” Id. at 201 (quoting Johnson,

515 U.S. at 319–20). The Fourth Circuit ultimately dismissed for lack of jurisdiction, noting that

the case could turn upon the credibility of witnesses, id. at 201–02, and observing: “This is not a

case in which the legal effect of a collection of undisputed facts points to divergent outcomes,

one constitutional and the other not. Rather, this is a case, as the district court recognized, in

which the version of facts ultimately accepted by the fact finder will dictate the outcome of the

constitutional inquiry.” Id. at 203 n.6 (emphasis in original).

The Seventh, Tenth, Third, and Fifth Circuits have all reached similar conclusions. See,

e.g., White v. Gerardot, 509 F.3d 829, 835–36 (7th Cir. 2007) (citing our McKenna decision with

approval, and concluding “we do not have jurisdiction when, as here, all of the arguments made

by the party seeking to invoke our jurisdiction are dependent upon, and inseparable from,

disputed facts”); Rosewood Servs., Inc. v. Sunflower Diversified Servs., Inc., 413 F.3d 1163,

1165 (10th Cir. 2005) (“Our jurisdiction is limited to reviewing denials of summary judgment

based on qualified immunity when we are ‘present[ed with] neat abstract issues of law. We lack

jurisdiction to review a denial of summary judgment based on qualified immunity if the claim on

appeal is based on disputed facts.” (alteration in original) (citation omitted)); Doe v. Groody,

361 F.3d 232, 237 (3d Cir. 2004) (“[A] denial of qualified immunity that turns on an issue of

law—rather than a factual dispute—falls within the collateral order doctrine that treats certain

interlocutory decisions as ‘final’ within the meaning of 28 U.S.C. § 1291.”); Reyes v. City of

Richmond, 287 F.3d 346, 351 (5th Cir. 2002) (“[T]his Court has made clear that, ‘to the extent

that [an officer’s] arguments on appeal depend upon portions of his statement of facts that differ

from the facts the district court assumed, we would lack jurisdiction to consider them because

No. 14-5711 Thompson, et al. v. City of Lebanon, et al. Page 12

they would involve challenges to the sufficiency of the evidence.’” (second alteration in original)

(citation omitted)); see also Barham v. Salazar, 556 F.3d 844, 847 (D.C. Cir. 2009) (citation

omitted) (recognizing interlocutory jurisdiction over some appeals from denials of qualified

immunity, but noting that “this extension of appellate jurisdiction is not endlessly elastic”).

These examples illustrate that the jurisdictional limitations we articulated in Phelps, Beard, and

McKenna enjoy broad support in other circuits and, indeed, are generally the law of the land.1

In the instant case, Officers McKinley and McDannald continue to insist on appeal that

McKinley fired his weapon accidentally and that the officers’ accounts of the events preceding

Thompson’s death are truthful, despite the district court’s finding that both issues are genuinely

disputed and its recognition that the credibility of each officer is in question. With respect to the

first dispute, answering the factual question of whether or not Officer McKinley intended to use

his weapon is a necessary prerequisite to making a legal determination about whether McKinley

seized Thompson for Fourth Amendment purposes. See, e.g., Floyd v. City of Detroit, 518 F.3d

398, 406 (6th Cir. 2008) (citation omitted) (explaining that “the various definitions of ‘seizure’

contained in [Fourth Amendment] precedents connote an intentional interference with a person’s

liberty by physical force or a show of authority that would cause a reasonable person consciously

to submit”). Similarly, knowing the particular facts and circumstances that confronted the

officers in the moment they killed Thompson is essential to determining whether or not the

officers’ actions were objectively reasonable as a matter of law. See Graham v. Connor,

490 U.S. 386, 397 (1989) (“[T]he ‘reasonableness’ inquiry in an excessive force case is an

1

The Supreme Court’s decision in Plumhoff v. Rickard, 134 S. Ct. 2012 (2014), does not affect these long-

recognized limitations. The First Circuit recognized as much in Cady v. Walsh, which referenced both Johnson and

Plumhoff in denying appellate jurisdiction. See 753 F.3d at 358–59. In Plumhoff, the Court likened the summary

judgment order on appeal to the order at issue in Scott v. Harris, 550 U.S. 372 (2007), and affirmed the circuit

court’s exercise of interlocutory jurisdiction on that basis. See Plumhoff, 134 S. Ct. at 2020 (“The District Court

order here is not materially distinguishable from the District Court order in Scott v. Harris, and in that case we

expressed no doubts about the jurisdiction of the Court of Appeals under § 1291. Accordingly, here, as in Scott, we

hold that the Court of Appeals properly exercised jurisdiction[.]”). Scott created a narrow exception to the

jurisdictional rules articulated in Johnson, allowing courts of appeal to assert interlocutory jurisdiction over denials

of summary judgment that blatantly contradict record evidence. See Moldowan v. City of Warren, 578 F.3d 351,

370 (6th Cir. 2009) (“In trying to reconcile Scott with the Supreme Court’s edict in Johnson, this Court has

concluded that ‘where the trial court’s determination that a fact is subject to reasonable dispute is blatantly and

demonstrably false, a court of appeals may say so, even on interlocutory appeal.’” (citation omitted)). There is no

claim in this case that the district court’s assessment of the facts was “blatantly and demonstrably false,” id.;

consequently, the Scott/Plumhoff exception is not implicated here.

No. 14-5711 Thompson, et al. v. City of Lebanon, et al. Page 13

objective one: the question is whether the officers’ actions are ‘objectively reasonable’ in light

of the facts and circumstances confronting them, without regard to their underlying intent or

motivation.”). With respect to the record evidence on summary judgment, the district court

found that submitted video evidence from McKinley’s dashboard camera is ambiguous, that

“there are conflicting assessments by the parties’ expert witnesses as to what occurred during the

shooting[,]” that a third officer’s “statements suggest a different series of events than what was

reported by McKinley and McDannald,” and that “numerous inconsistencies in McKinley and

McDannald’s accounts call their narratives into doubt, in addition to other significant reasons

that a jury might question their credibility.” (R. 27, PageID 8610.)

These factual disputes are neither “minor[,]” Beard, 402 F.3d at 602 n.5, nor “immaterial

to the legal issues raised by the appeal,” Claybrook, 274 F.3d at 1103 (citation omitted). Rather,

they are the basis of the legal arguments that McKinley and McDannald present to this panel:

that no Fourth Amendment seizure took place and that neither McKinley’s nor McDannald’s

actions were objectively unreasonable. Because the officers’ factual assertions are crucial to

their claims, I would hold that governing precedent obliges us to dismiss this case for lack of

jurisdiction and return it to the district court for the trial judge to undertake the core function of

trial courts—supervise trial proceedings before the jury assigned to hear this case.