Estate of Wayne Anderson v. John Marsh

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ESTATE OF WAYNE STEVEN No. 19-15068

ANDERSON,

Plaintiff-Appellee, D.C. No.

1:14-cv-01599-

v. TLN-SAB

JOHN MARSH, California Highway

Patrol Officer, OPINION

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of California

Troy L. Nunley, District Judge, Presiding

Argued and Submitted January 8, 2020

San Francisco, California

Filed January 15, 2021

Before: William A. Fletcher and Michelle T. Friedland,

Circuit Judges, and Timothy Hillman, * District Judge.

Opinion by Judge Friedland;

Dissent by Judge W. Fletcher

*

The Honorable Timothy Hillman, United States District Judge for

the District of Massachusetts, sitting by designation.

2 ESTATE OF ANDERSON V. MARSH

SUMMARY **

Civil Rights

The panel dismissed, for lack of jurisdiction, an

interlocutory appeal from the district court’s order, on

summary judgment, denying qualified immunity to

California Highway Patrol Officer John Marsh in an action

brought pursuant to 42 U.S.C. § 1983 alleging Marsh used

excessive force when he shot Wayne Anderson.

The panel determined that the crux of Marsh’s appeal

was that the district court “erred in finding disputed issues of

material fact” concerning whether Anderson made a sudden

movement as though he were reaching for a weapon.

Applying the rule articulated in Foster v. City of Indio, 908

F.3d 1204 (9th Cir. 2018), Pauluk v. Savage, 836 F.3d 1117

(9th Cir. 2016), and Advanced Building & Fabrication, Inc.

v. California Highway Patrol, 918 F.3d 654 (9th Cir. 2019),

the panel concluded that it lacked jurisdiction over the

appeal because, in light of his concessions at oral argument,

Marsh challenged only the district court’s determination that

there was a genuine factual dispute as to whether Anderson

appeared to reach for a weapon before Marsh shot him.

Rather than arguing that, taking the facts in the light most

favorable to Anderson’s Estate, the law was not clearly

established that Marsh’s conduct was unconstitutional—

which the panel would have had jurisdiction to consider—

Marsh contested whether there was enough evidence in the

record for a jury to conclude that a certain fact favorable to

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

ESTATE OF ANDERSON V. MARSH 3

the Estate was true, which the panel did not have jurisdiction

to resolve. Because it could not review on interlocutory

appeal the question of evidence sufficiency Marsh raised, the

panel dismissed his appeal for lack of jurisdiction.

Dissenting, Judge W. Fletcher stated that he was

sympathetic with the panel majority, for the law in this area

is extraordinarily confused. However, Marsh did not dispute

that he was at the scene. Indeed, he conceded that he shot

Anderson. Therefore, under Plumhoff v. Rickard, 572 U.S.

765 (2014), and other case law, the panel had jurisdiction to

hear this appeal. Judge Fletcher closed his dissent with a

plea to the Supreme Court to state clearly, in an appropriate

case, whether and in what circumstances an interlocutory

appeal may be taken when the district court, viewing

disputed evidence in the light most favorable to plaintiff, has

denied a motion for summary judgment based on qualified

immunity.

COUNSEL

Kymberly E. Speer (argued) and Wilfred Fong, Deputy

Attorneys General; Jeffrey R. Vincent, Supervising Deputy

Attorney General; Danielle F. O’Bannon, Senior Assistant

Attorney General; Xavier Becerra, Attorney General of

California; Office of the Attorney General, Oakland,

California; for Defendant-Appellant.

Adam Carlson (argued), Casper, Meadows, Schwartz &

Cook, Walnut Creek, California; Karen L. Snell, San

Francisco, California; for Plaintiff-Appellee.

4 ESTATE OF ANDERSON V. MARSH

OPINION

FRIEDLAND, Circuit Judge:

The Estate of Wayne Steven Anderson brought this

action under 42 U.S.C. § 1983 alleging that California

Highway Patrol Officer John Marsh used excessive force

against Anderson in violation of the Fourth Amendment.

Marsh moved for summary judgment based on qualified

immunity. The district court denied Marsh’s motion, and he

filed this interlocutory appeal. Because Marsh’s

interlocutory appeal challenges only the district court’s

conclusion that there is sufficient evidence to create a

genuine dispute as to the factual question that will determine

whether Marsh’s use of force was reasonable, we lack

jurisdiction to review his arguments. We therefore dismiss

this appeal.

I.

A.

In the early afternoon of October 27, 2012, while on

patrol in the Fresno area, California Highway Patrol

(“CHP”) Officer John Marsh saw a Toyota Camry driving

westbound on State Route 180 at 70 miles per hour. 1 Marsh

followed the car and radioed dispatch to report that he was

going to “attempt[] to overtake a high-speed vehicle.”

Shortly after Marsh began following the Camry, its driver,

1

Marsh stated at various points that Anderson’s speed was 70, 90,

and 100 miles per hour. Because this appeal arises from the denial of

Marsh’s motion for summary judgment, we relate the version of the facts

most favorable to Anderson’s Estate, the non-moving party, unless

otherwise indicated. See Foster v. City of Indio, 908 F.3d 1204, 1207

(9th Cir. 2018).

ESTATE OF ANDERSON V. MARSH 5

later identified as Wayne Steven Anderson, merged onto

State Route 99 northbound. Marsh testified in his later

deposition that, at around this point, he activated his patrol

car’s overhead lights. Anderson took an off-ramp at

70 miles per hour, drove through a stop sign, and reentered

Route 99. He then took the next off-ramp, again traveling at

a speed that Marsh estimated at 70 miles per hour. Anderson

drove through a T-intersection, lost control of his car while

attempting to turn, and crashed into a chain-link fence.

Approximately three minutes had passed between the start

of Marsh’s pursuit and the crash.

A few seconds after Anderson crashed into the fence,

Marsh stopped his patrol car right behind the Camry.

Anderson remained in the Camry. Marsh immediately

exited his car and drew his service weapon. He heard the

engine of the Camry revving and saw the car rocking

forward and backward as if Anderson were attempting to

dislodge it from the chain-link fence. Marsh testified that he

ordered Anderson to stop. Marsh then approached the

driver’s side of the Camry and pointed his weapon at

Anderson. Marsh saw Anderson’s left hand on the steering

wheel and his right hand on the gear shift.

According to Marsh’s disputed deposition testimony, he

ordered Anderson to “[s]top the car” and “[s]how me your

hands.” Marsh further testified that Anderson suddenly

stopped rocking the car, took his hands off the steering wheel

and gear shift, and reached toward the front passenger seat

or floorboard. Marsh later stated that he feared Anderson

was reaching for a weapon.

It is undisputed that Marsh then fired two rounds. One

bullet penetrated the Camry’s closed window, struck

Anderson, and permanently paralyzed him from the chest

down. The other bullet hit the Camry’s door frame. Marsh

6 ESTATE OF ANDERSON V. MARSH

had not warned Anderson that he was going to shoot before

firing.

Marsh radioed dispatch to report shots fired. One

segment of the recording of his dispatch is difficult to

understand but was transcribed by CHP as including the

phrase “[h]e ran into my car.” Marsh did not mention that

Anderson may have been armed.

Other officers arrived on the scene within a minute.

Marsh did not alert anyone about the possible presence of a

weapon in the Camry, and no weapon was ever recovered.

One of the responding officers later testified that he believed

that Marsh said he fired his weapon because he thought

Anderson “was trying to run him over.” This officer did not

recall Marsh expressing a fear that Anderson had a weapon.

Although Marsh’s vehicle had a dashboard camera,

subsequent investigation revealed that it had not recorded the

incident. A blurry surveillance video (without

accompanying audio) from a nearby business captured

Anderson’s crash, the relative positions of Anderson’s and

Marsh’s vehicles, and Marsh’s approach to the Camry, but

not the Camry’s interior. Marsh was interviewed by the

Fresno Police Department later on the day of the shooting.

The interviewers showed him the surveillance video before

questioning him about what had occurred. 2

2

CHP’s designated person most knowledgeable about its

investigation into this incident testified that he was not aware of any

other instance in which a CHP officer involved in a shooting was

permitted to view a video of the shooting before being interviewed by

investigators.

ESTATE OF ANDERSON V. MARSH 7

B.

Anderson filed this action against Marsh in the United

States District Court for the Eastern District of California.

Anderson died “of causes not directly related” to the

shooting several months later, before he ever testified about

the events at issue. His Estate took over the litigation.

Marsh moved for summary judgment. The Estate thereafter

stipulated to dismissal of all claims asserted in the Complaint

except the excessive force claim. As to that remaining claim,

Marsh asserted the defense of qualified immunity.

The district court denied Marsh’s motion for summary

judgment. The court identified several aspects of the

evidentiary record that undercut Marsh’s testimony that

Anderson made a sudden, threatening movement toward the

passenger side of his car. The court’s observations included

that no weapon was recovered from Anderson’s car; that

“Marsh did not report a possible weapon to other officers

who arrived on the scene”; and that when Marsh reported the

shooting to dispatch, he said something transcribed as “[h]e

ran into my car,” without mentioning that Anderson may

have been armed. As the court summarized, on the Estate’s

version of the facts in the record, “Anderson was sitting,

unarmed, in the driver seat of his car, which was stuck on a

chain link fence [and] had already stopped rocking back and

forth, and Anderson had one hand on the steering wheel and

the other [hand] on the gear-shift” at the time he was shot.

The district court thus reasoned that, “[v]iewing all

disputed facts in the light most favorable to [the Estate], as

[required] on a motion for summary judgment, a reasonable

jury could conclude that Anderson did not make a sudden,

furtive reach for the passenger side of the car.” The court

held that “if a jury finds that Anderson did not reach for the

passenger side,” there would have been a “lack of imminent

8 ESTATE OF ANDERSON V. MARSH

threat to Officer Marsh or others,” so the jury could find

“Officer Marsh’s use of deadly force . . . was excessive.”

The court further held, quoting Wilkinson v. Torres, 610 F.3d

546, 550 (9th Cir. 2010), that caselaw at the time of the

incident “clearly established that an officer may not use

deadly force to apprehend a suspect where the suspect poses

no immediate threat to the officer or others.” The court

accordingly held that Marsh was not entitled to qualified

immunity at the summary judgment stage of the litigation.

Marsh timely filed this interlocutory appeal. The crux of

Marsh’s appeal is that the district court “erred in finding

disputed issues of material fact” concerning whether

Anderson made a “sudden movement as though he were

reaching for a weapon.” Marsh asserts that there is not

sufficient evidence for a jury to find for the Estate on this

question because “[t]here is no evidence directly

contradicting [his] testimony that Anderson made a furtive

movement.” Marsh accordingly argues that, for purposes of

evaluating whether he was entitled to qualified immunity,

the district court should have accepted as true his account of

Anderson’s actions. At oral argument, Marsh’s counsel

conceded that the qualified immunity analysis turns on

“[w]hether Officer Marsh reasonably perceived that

[Anderson] was making a threatening movement,” and that

it was “clearly established” that it would not have been

lawful for Marsh to shoot “[i]f the jury d[oes] not believe

that [Anderson’s] hands ever moved.”

II.

A.

The parties dispute whether we have jurisdiction over

this interlocutory appeal. An order denying a motion for

summary judgment is usually not an immediately appealable

ESTATE OF ANDERSON V. MARSH 9

final decision. Plumhoff v. Rickard, 572 U.S. 765, 771

(2014); see 28 U.S.C. § 1291. “But that general rule does

not apply when the summary judgment motion is based on a

claim of qualified immunity,” because “pretrial orders

denying qualified immunity generally fall within the

collateral order doctrine.” Plumhoff, 572 U.S. at 771–72.

Thus, in the qualified immunity context, we typically have

jurisdiction over interlocutory appeals from the denial of

summary judgment. Foster v. City of Indio, 908 F.3d 1204,

1209 (9th Cir. 2018).

“[T]he scope of our review” in this context, however, is

“circumscribed.” Id. at 1210 (quoting George v. Morris,

736 F.3d 829, 834 (9th Cir. 2013)). In Johnson v. Jones,

515 U.S. 304 (1995), the Supreme Court explained that any

“portion of a district court’s summary judgment order that,

though entered in a ‘qualified immunity’ case, determines

only a question of ‘evidence sufficiency,’ i.e., which facts a

party may, or may not, be able to prove at trial . . . is not

appealable.” Id. at 313. By contrast, any portion of a

summary judgment order that turns on “the application of

‘clearly established’ law to a given (for appellate purposes

undisputed) set of facts” is immediately appealable. Id.

We have understood Johnson to mean “[a] public official

may not immediately appeal ‘a fact-related dispute about the

pretrial record, namely, whether or not the evidence in the

pretrial record was sufficient to show a genuine issue of fact

for trial.’” Foster, 908 F.3d at 1210 (quoting Johnson,

515 U.S. at 307); see also George, 736 F.3d at 835

(underscoring that we may not review on interlocutory

appeal “the question whether there is enough evidence in the

record for a jury to conclude that certain facts are true”). Our

interlocutory review jurisdiction is limited to resolving a

defendant’s “purely legal . . . contention that [his or her]

10 ESTATE OF ANDERSON V. MARSH

conduct ‘did not violate the [Constitution] and, in any event,

did not violate clearly established law.’” Foster, 908 F.3d at

1210 (quoting Plumhoff, 572 U.S. at 773); see also George,

736 F.3d at 836 (“[W]e are confined to the question of

‘whether the defendant[] would be entitled to qualified

immunity as a matter of law, assuming all factual disputes

are resolved, and all reasonable inferences are drawn, in

plaintiff’s favor.” (quoting Karl v. City of Mountlake

Terrace, 678 F.3d 1062, 1068 (9th Cir. 2012))). 3

These cases instruct that whether jurisdiction is lacking

under our court’s interpretation of Johnson ultimately turns

on the nature of the defendant’s argument on appeal. If the

3

Although we may not review on interlocutory appeal claims that a

plaintiff has presented insufficient evidence, we have held that we may

review claims that a plaintiff has presented no evidence such that his

arguments about the illegality of a defendant’s conduct are premised on

“bare allegation[s].” Foster, 908 F.3d at 1217; id. at 1217–18 (holding,

on interlocutory review, that “the district court erred in finding a genuine

dispute” of fact as to whether the defendant officer approached the

plaintiff with his gun drawn because the plaintiff’s “bare allegation

alone, without any evidence in the record, is insufficient to conclude that

[the officer] did anything more than unholster his gun”); Jeffers v.

Gomez, 267 F.3d 895, 907 (9th Cir. 2001) (determining that there was

jurisdiction to review and reverse the district court’s holding that the

defendants’ motive was in dispute when there was “no evidence of bad

motive,” even when the record was “viewed in the light most favorable

to the plaintiff”).

Similarly, we have recognized that the Supreme Court’s decision in

Scott v. Harris, 550 U.S. 372 (2007), created a narrow additional avenue

for a defendant to argue that a plaintiff’s version of the facts is “blatantly

contradicted by the record, so that no reasonable jury could believe it.”

Orn v. City of Tacoma, 949 F.3d 1167, 1171 (9th Cir. 2020) (quoting

Scott, 550 U.S. at 380). In Scott itself, for example, the Court justified

its rejection of the plaintiff’s factual allegations by noting that a

videotape of the events in question “quite clearly contradict[ed] the

version of the story told by [the plaintiff].” 550 U.S. at 378.

ESTATE OF ANDERSON V. MARSH 11

defendant argues only that the evidence is insufficient to

raise a genuine issue of material fact, we lack jurisdiction. If

the defendant’s appeal raises purely legal questions,

however, such as whether his alleged conduct violated

clearly established law, we may review those issues. In other

words, we have jurisdiction to review an issue of law

determining entitlement to qualified immunity—even if the

district court’s summary judgment ruling also contains an

evidence-sufficiency determination—but not to accede to a

defendant’s request that we review that evidence-sufficiency

determination on appeal.

Our dissenting colleague describes the Supreme Court’s

caselaw on the scope of interlocutory appeals in the qualified

immunity context as having spawned “persistent confusion,”

and understands the prevailing rule to be different than the

one we have outlined above. Dissent at 21–22. Specifically,

the dissent interprets the discussion of Johnson in Plumhoff

as indicating that we always have jurisdiction over an

interlocutory appeal from the denial of qualified immunity,

with one narrow exception:

Only when officers provide disputed

evidence showing that they were not present,

and were in no way involved in the

challenged conduct [as the defendant officers

in Johnson were not], is an appellate court

without jurisdiction to hear the officers’

interlocutory appeal.

Dissent at 31; see Johnson, 515 U.S. at 307–08. In other

words, the dissent reads Plumhoff as implicitly restricting

Johnson to its facts. See Dissent at 31.

We agree with the dissent that the Supreme Court’s

explication of the relevant jurisdictional principles has not

12 ESTATE OF ANDERSON V. MARSH

always been clear, and that Plumhoff contains language that

supports the dissent’s reading. But there is also language in

Plumhoff that suggests the Court did not read Johnson so

narrowly. Plumhoff reiterated that Johnson barred an

interlocutory appeal from a summary judgment order that

turned on “a question of ‘evidence sufficiency,’ i.e., which

facts a party may, or may not, be able to prove at trial.”

Plumhoff, 572 U.S. at 772 (quoting Johnson, 515 U.S.

at 313). The Court also emphasized the difference between

“legal issues” and “purely factual issues that the trial court

might confront if the case were tried,” explaining with

approval that Johnson had held that “forcing appellate courts

to entertain [interlocutory] appeals” concerning factual

determinations of “evidence sufficiency” would “impose an

undue burden.” Id. at 773.

Those passages have already persuaded our court to

adopt a different interpretation of the limits on interlocutory

appellate jurisdiction than the dissent’s. Our post-Plumhoff

decisions have continued to understand Johnson as setting

forth a jurisdictional rule about challenges to evidence

sufficiency, without confining the rule to situations in which

officers deny having been involved in the challenged

conduct. For example, we stated in Foster that “‘a portion

of a district court’s summary judgment order’ in a qualified

immunity case [that] ‘determines only a question of

“evidence sufficiency,” i.e., which facts a party may, or may

not, be able to prove at trial,’” is not immediately appealable.

908 F.3d at 1210 (quoting Johnson, 515 U.S. at 313). We

similarly said in Advanced Building & Fabrication, Inc. v.

California Highway Patrol, 918 F.3d 654 (9th Cir. 2019),

that “[w]e may not consider ‘a fact-related dispute about the

pretrial record,’ that is, ‘whether or not the evidence in the

pretrial record was sufficient to show a genuine issue of fact

for trial.’” Id. at 657 (quoting Johnson, 515 U.S. at 307); see

ESTATE OF ANDERSON V. MARSH 13

also, e.g., Pauluk v. Savage, 836 F.3d 1117, 1121 (9th Cir.

2016) (same). 4

To the extent these cases involved arguments on

interlocutory appeal that boiled down to factual disputes

about the record, we applied Johnson to hold that we lacked

jurisdiction over such arguments—even when the factual

disputes did not concern whether the defendants were

involved in the allegedly unlawful conduct. For instance, the

defendant in Foster, Officer Hellawell, conducted an

investigatory stop of Foster and subsequently shot him.

908 F.3d at 1207–09. The district court held that Hellawell

was not entitled to qualified immunity from claims that he

stopped Foster unlawfully and used excessive force twice

throughout the encounter. Id. at 1209. As to one of the

excessive force claims, Hellawell argued on interlocutory

appeal that Foster’s family “w[ould] not be able to prove at

trial” that Foster was unarmed and moving away from

Hellawell at the time of the shooting. Id. at 1213. We

concluded that we lacked jurisdiction to review this

argument because “Hellawell challenge[d] the sufficiency of

the plaintiffs’ evidence.” Id. We reached that conclusion

even though he did not deny firing the shots. As to the

unlawful stop claim, however, we held that we had

jurisdiction to consider Hellawell’s appeal because he

“raise[d] a purely legal issue: whether, based on undisputed

facts, [he] violated clearly established law.” Id.

4

We recognize that some of our pre-Plumhoff decisions expressed

this principle in less than precise language. See, e.g., Johnson v. Bay

Area Rapid Transit Dist., 724 F.3d 1159, 1179 (9th Cir. 2013) (“To the

extent the district court relied upon disputed facts to deny [the defendant]

immunity, we lack jurisdiction to review that denial.”).

14 ESTATE OF ANDERSON V. MARSH

Similarly, we ruled in Pauluk that we did not have

jurisdiction over the portion of an interlocutory appeal

challenging the factual determinations underlying a district

court’s denial of qualified immunity. The defendants there

allegedly exposed an employee to unsafe workplace

conditions. Pauluk, 836 F.3d at 1119–20. We explained that

we could not review the defendants’ “arguments that there

was insufficient evidence to show that [the workplace] was

unsafe, that the defendants acted with deliberate

indifference, or that there was a causal relationship between

the conditions at [the workplace] and [the employee’s]

death.” Id. at 1121. By contrast, we held that we did “have

jurisdiction, construing the facts and drawing all inferences

in favor of Plaintiffs, to decide whether the evidence

demonstrate[d] a [constitutional] violation by [the

defendants], and whether such violation was in

contravention of federal law that was clearly established at

the time.” Id. (recognizing that these were “purely legal”

questions); see also Advanced Bldg. & Fabrication,

918 F.3d at 658 (explaining that we had interlocutory

appellate jurisdiction because the defendant’s “claim of

qualified immunity d[id] not turn on the resolution of any

factual dispute”). 5

5

These decisions are also consistent with our pre-Plumhoff caselaw.

In George, for example, we refused to consider a factual dispute on

interlocutory appeal even though the defendant officers admitted to

participating in the shooting at issue. 736 F.3d at 834–36. The officers

had fatally shot a man holding a gun, and they later testified that they

fired because he had pointed the gun at them. Id. at 832–33, 833 n.4.

We held that we lacked jurisdiction to review the officers’ contention

that the plaintiff “could not ‘prove at trial’ that [the decedent] did not

turn and point his gun” at the officers, because that argument went “to

the sufficiency of [the] evidence.” Id. at 834 (quoting Johnson, 515 U.S.

at 313). But we held that we could review the officers’ separate

ESTATE OF ANDERSON V. MARSH 15

Foster, Pauluk, and Advanced Building & Fabrication

have not been overruled by a Supreme Court decision or an

en banc decision of our court. Nor are their holdings clearly

irreconcilable with any intervening Supreme Court decision.

We are therefore bound to apply the jurisdictional rule as

they stated it. See Miller v. Gammie, 335 F.3d 889, 900 (9th

Cir. 2003) (en banc).

B.

Applying the rule articulated in Foster, Pauluk, and

Advanced Building & Fabrication, we conclude that we lack

jurisdiction over this appeal because—in light of his

concessions at oral argument—Marsh challenges only the

district court’s determination that there is a genuine factual

dispute as to whether Anderson appeared to reach for a

weapon before Marsh shot him.

In denying Marsh’s summary judgment motion, the

district court observed, citing Mattos v. Agarano, 661 F.3d

433, 441 (9th Cir. 2011) (en banc), that “[t]he most

important factor” in determining if Marsh’s use of force

violated the Fourth Amendment “is whether [Anderson]

posed an imminent threat to the safety of the officer or

others.” The district court then identified several bases on

which a jury could conclude, on the evidence in the record,

that Anderson “did not make a sudden, furtive reach for the

passenger side of [his] car,” and therefore that he did not

pose an immediate threat to anyone when he was shot.

Because of this factual dispute, the district court concluded

argument that their conduct was constitutional even on the plaintiff’s

version of the facts, because that argument raised a purely legal issue.

Id. at 837–38.

16 ESTATE OF ANDERSON V. MARSH

that “[a] reasonable jury could find Officer Marsh’s use of

deadly force . . . was excessive.”

Marsh’s interlocutory appeal contests the district court’s

determination that there is a genuine factual dispute as to

whether Anderson made a sudden movement. Marsh insists

that “purported discrepancies in [the] evidence” were not

“sufficient” to cast doubt on his account of the events, and

that “contemporaneous evidence . . . corroborates [his]

testimony” that Anderson made a furtive movement. Marsh

urges us to conduct the qualified immunity analysis taking

as true that Anderson made a “sudden movement as though

he were reaching for a weapon,” and accordingly relies on

caselaw holding “that use of deadly force was justified

[where] a suspect . . . appeared to reach for, or brandish, a

weapon.” In other words, rather than “advanc[ing] an

argument as to why the law is not clearly established that

takes the facts in the light most favorable to [the Estate],”

which we would have jurisdiction to consider, Marsh

contests “whether there is enough evidence in the record for

a jury to conclude that certain facts [favorable to the Estate]

are true,” which we do not have jurisdiction to resolve.

George, 736 F.3d at 835, 837. 6 Indeed, Marsh conceded at

6

Despite Marsh’s contention that the “Estate’s ‘fabrication’ theory

is not supported by evidence, and thus is only speculation,” we do not

understand him to be raising a “bare allegation” claim, over which we

would have jurisdiction. See supra note 3. Rather, Marsh arrives at this

conclusion by disputing the inferences that can be drawn from the

evidence that the district court held supported the Estate’s version of

events, such as the fact that no gun was found in the car and testimony

that Marsh did not mention on the scene that he believed Anderson had

a gun. Thus, Marsh’s appeal raises the precise type of evidence-

sufficiency challenge over which we lack jurisdiction. See Johnson,

515 U.S. at 314 (explaining that interlocutory appellate jurisdiction is

lacking when “a defendant simply wants to appeal a district court’s

determination that the evidence is sufficient to permit a particular finding

ESTATE OF ANDERSON V. MARSH 17

oral argument that he would have no claim to qualified

immunity if the Estate’s version of events were found to be

true.

Because we may not review on interlocutory appeal the

question of evidence sufficiency Marsh raises, we must

dismiss his appeal for lack of jurisdiction. See Foster,

908 F.3d at 1210.

III.

For the foregoing reasons, we dismiss this interlocutory

appeal for lack of jurisdiction.

DISMISSED.

W. FLETCHER, Circuit Judge, dissenting:

Johnson strikes again.

Officer John Marsh brought an interlocutory appeal after

the district court, viewing disputed evidence in the light most

favorable to the plaintiff, denied his motion for summary

judgment based on qualified immunity. The district court

determined, based on plaintiff's version of the disputed

evidence, that there was sufficient evidence to defeat

Marsh’s motion and go to trial. Relying on Johnson v. Jones,

515 U.S. 304 (1995), and its progeny, the panel majority

of fact”); cf. George, 736 F.3d at 834 (holding that this court lacked

jurisdiction over one of the defendants’ arguments on appeal because

“[a]lthough couched in the language of materiality, their argument

actually goes to the sufficiency of [the plaintiff’s] evidence”).

18 ESTATE OF ANDERSON V. MARSH

holds that we do not have appellate jurisdiction. I

respectfully dissent.

I am sympathetic with the panel majority, for the law in

this area is extraordinarily confused.

The story begins with Mitchell v. Forsyth, 472 U.S. 511

(1985), when the Supreme Court held that an order denying

a public official’s motion for summary judgment based on

qualified immunity is immediately appealable despite the

interlocutory character of the order. Id. at 524–30. The

standard for granting or denying a motion for summary

judgment by the district court was not affected by Mitchell,

but there was uncertainty about the circumstances in which

an interlocutory appeal could be heard. Ten years after

Mitchell, noting that “Courts of Appeals hold different views

about the immediate appealability of . . . ‘evidence

insufficiency’ claims made by public official defendants

who assert qualified immunity defenses,” the Court granted

certiorari in Johnson. 515 U.S. at 308–9.

The Court’s opinion in Johnson is puzzling. The

plaintiff in Johnson sued five police officers for use of

excessive force. Id. at 307. Three of the officers moved for

summary judgment, arguing that there was no evidence that

they had beaten plaintiff or had even been present when

other officers had done so. Id. The district court denied

qualified immunity to the three officers, finding that there

was a genuine dispute of material fact as to whether they had

been present. It held that “there was ‘sufficient

circumstantial evidence supporting [plaintiff’s] theory of the

case,’” id. at 308, and set the case for trial against all five

officers. The three officers appealed the court’s

interlocutory order denying summary judgment, contending

that “the record contained ‘not a scintilla of evidence . . . that

one or more’ of them had ‘ever struck, punched or kicked

ESTATE OF ANDERSON V. MARSH 19

the plaintiff, or ever observed anyone doing so.’” Id. The

Seventh Circuit held that it lacked appellate jurisdiction on

interlocutory review over questions of “evidence

insufficiency.” Id. The Supreme Court affirmed.

Because Mitchell did not change the summary judgment

standard in qualified immunity cases, the district court views

disputed evidence in such cases in the light most favorable

to the plaintiff, just as it does in other summary judgment

cases. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157

(1970). The most obvious way to implement Mitchell would

have been to allow an interlocutory appeal to determine the

correctness of the district court’s denial of defendant’s

motion, whether the court (1) used defendant’s version of

disputed evidence, (2) used plaintiff’s version of disputed

evidence, viewing the evidence in the light most favorable

to the plaintiff, or (3) used undisputed evidence. See

Mitchell, 472 U.S. at 527 (addressing the first two

alternatives). If an appellate court were to have jurisdiction

on the second alternative ground, it would be able to address

precisely the question decided by district courts in most

qualified immunity cases. Yet as I read Johnson, the Court

did not allow appellate jurisdiction on that ground. It

allowed jurisdiction only on the first and third grounds. That

is, it allowed jurisdiction only in cases where the district

court relied on evidence the defendant did not dispute.

In denying appellate jurisdiction in Johnson—where the

district court had viewed the evidence in the light most

favorable to the plaintiff and had denied defendant’s motion

for summary judgment—the Court wrote:

The order in question resolved a fact-related

dispute about the pretrial record, namely,

whether or not the evidence in the pretrial

record was sufficient to show a genuine issue

20 ESTATE OF ANDERSON V. MARSH

of fact for trial. We hold that the defendants

cannot immediately appeal this kind of fact-

related district court determination.

Id. at 307 (emphasis is original). The “fact-related dispute”

in Johnson was whether the circumstantial evidence, which

the officers disputed, was sufficient to deny summary

judgment to the defendant officers.

The Court elaborated:

We . . . consider the appealability of a portion

of a district court’s summary judgment order

that, though entered in a “qualified

immunity” case, determines only a question

of “evidence sufficiency,” i.e., which facts a

party may, or may not, be able to prove at

trial. This kind of order, we conclude, is not

appealable. That is, the District Court’s

determination that the summary judgment

record in this case raised a genuine issue of

fact concerning petitioners’ involvement in

the alleged beating of respondent was not a

“final decision” within the meaning of the

relevant statute.

Id. at 313. The “genuine issue of fact” was whether the

defendant officers were “involve[d] in the alleged beating”

of the plaintiff. Based on the evidence he would present to

the factfinder at trial, the plaintiff “may, or may not, be able

to prove” that fact.

Under my reading of Johnson, a court of appeals has

jurisdiction only when a district court denies a defendant’s

motion for summary judgment based on evidence that the

defendant does not dispute. A court of appeals does not have

ESTATE OF ANDERSON V. MARSH 21

jurisdiction when a district court denies a defendant’s motion

for summary judgment based on evidence it assumes to be

true but that a defendant disputes. By far the majority of

denials of summary judgment motions are entered in such

cases. That is, the vast majority of cases are those in which

the district court determines a question of “evidentiary

sufficiency,” assuming plaintiff’s evidence to be true and

determining whether that evidence is sufficient to defeat

defendant’s motion.

The purpose of qualified immunity is to protect officers

from having to go to trial. Qualified immunity is “an

immunity from suit rather than a mere defense to liability.”

Mitchell, 472 U.S. at 526 (emphasis in original). Johnson

frustrates the purpose of qualified immunity in cases where

the district court, relying on plaintiff’s view of the evidence,

mistakenly holds as a matter of law that an officer is not

entitled to qualified immunity. The Court in Johnson

explicitly recognized the limited protection provided by its

holding:

We recognize that . . . [our holding] threatens

to undercut the very policy (protecting public

officials from lawsuits) that (the Mitchell

Court held) militates in favor of immediate

appeals. Nonetheless, the countervailing

considerations that we have mentioned

(precedent, fidelity to statute, and underlying

policies) are too strong to permit the

extension of Mitchell to encompass appeals

from orders of the sort before us.

Id. at 317–18 (parentheticals in original).

Johnson has created persistent confusion as courts of

appeals, including our own, have struggled to reconcile its

22 ESTATE OF ANDERSON V. MARSH

apparent holding with the purpose of qualified immunity. I

cite only a few out-of-circuit cases; I could cite many more.

See, e.g., Diaz v. Martinez, 112 F.3d 1, 3 (1st Cir. 1997)

(“The dividing line that separates an immediately appealable

order from a nonappealable one in these purlieus is not

always easy to visualize.”); Camilo-Robles v. Hoyos,

151 F.3d 1, 8 (1st Cir. 1998) (“Cases are clear enough at the

extremes. . . . [But d]etermining the existence vel non of

appellate jurisdiction in cases closer to the equator is more

difficult. . . . If this were not complex enough, the district

judge is not legally obliged to explain the basis on which a

denial of summary judgment rests.”); Walton v. Powell,

821 F.3d 1204, 1209 (10th Cir. 2016) (“[W]e have struggled

ourselves to fix the exact parameters of the Johnson

innovation.”); Barry v. O’Grady, 895 F.3d 440, 446 (6th

Cir. 2018) (“Each of our too-many-to-count additional

glosses on Johnson is needlessly complicated. . . .” (Sutton,

J., dissenting)).

The confusion in our sister circuits is matched in our own

circuit. In some cases, we have exercised appellate

jurisdiction where genuine issues of material fact existed and

the district court viewed the evidence in the light most

favorable to the plaintiff. See, e.g., Orn v. City of Tacoma,

949 F.3d 1167, 1171 (9th Cir. 2020) (affirming the district

court’s denial of summary judgment) (“In an interlocutory

appeal challenging the denial of qualified immunity, we

must construe the facts in the light most favorable to the

plaintiff.”); Tuuamalemalo v. Green, 946 F.3d 471, 476 (9th

Cir. 2019) (affirming the district court’s denial of summary

judgment) (“We have jurisdiction . . . to review the decision

of the district court, viewing the facts in the light most

favorable to Tuuamalemalo, the nonmoving party.”);

Nicholson v. City of Los Angeles, 935 F.3d 685, 690 (9th Cir.

2019) (reversing the district court’s denial of summary

ESTATE OF ANDERSON V. MARSH 23

judgment) (“We have jurisdiction . . . to review the denial of

qualified immunity at the summary judgment stage. . . .

[W]e are confined to the question of ‘whether the

defendant[s] would be entitled to qualified immunity as a

matter of law, assuming all factual disputes are resolved, and

all reasonable inferences are drawn, in plaintiff’s favor.’”);

Horton by Horton v. City of Santa Maria, 915 F.3d 592, 601

(9th Cir. 2019) (reversing the district court’s denial of

summary judgment) (“Based on these facts, which are taken

in the light most favorable to [plaintiff], a reasonable officer

would not have known that failing to attend to [him]

immediately would be unlawful under the law at the time of

the incident.”).

In other cases, including the case now before us, we have

denied appellate jurisdiction. See, e.g., Johnson v. Bay Area

Rapid Transit Dist., 724 F.3d 1159, 1179 (9th Cir. 2013)

(“To the extent the district court relied upon disputed facts

to deny [defendant] immunity, we lack jurisdiction to review

that denial.”); Maropulos v. Cnty. of Los Angeles, 560 F.3d

974, 975 (9th Cir. 2009) (“[H]is appeal raises issues having

to do with sufficiency of the evidence over which we lack

jurisdiction. . . . Accordingly, we dismiss.”); Thomas v.

Gomez, 143 F.3d 1246, 1249 (9th Cir. 1998) (“[T]he

resolution of this issue involves disputed issues of material

fact that need to be resolved by a jury. Accordingly, we

dismiss this appeal for lack of jurisdiction[.]”); Ram v.

Rubin, 118 F.3d 1306, 1308 (9th Cir. 1997) (“To the extent

that [defendant] Silva’s appeal requires the determination of

a fact-related dispute, namely whether the evidence in the

pretrial record is sufficient to show a genuine issue of fact

for trial, we lack jurisdiction.”); Collins v. Jordan, 110 F.3d

1363, 1374 (9th Cir. 1996) (“Reviewing the record to

determine whether there is sufficient evidence to support

[the district court’s] determination that there is a factual

24 ESTATE OF ANDERSON V. MARSH

dispute . . . would require us to do what we lack jurisdiction

to do under Johnson.”).

In some cases, we have tried to have it both ways. See,

e.g., Foster v. City of Indio, 908 F.3d 1204, 1207, 1213, 1217

(9th Cir. 2018) (“[W]e view the facts in the light most

favorable to the nonmoving party,” “lack jurisdiction to

consider [defendant’s] argument that we should reverse the

district court’s determination that there was a genuine issue

of material fact . . . relating to [defendant’s] fatal shooting of

[the victim],” and determine “the district court erred in

finding a genuine dispute as to whether [defendant]

approached [the victim] with his gun drawn.”); George v.

Morris, 736 F.3d 829, 836 (9th Cir. 2013) (“[W]e are

confined to the question of ‘whether the defendant[s] would

be entitled to qualified immunity as a matter of law,

assuming all factual disputes are resolved, and all reasonable

inferences are drawn, in plaintiff’s favor.’”). We wrote in

Pauluk v. Savage, 836 F.3d 1117, 1121 (9th Cir. 2016):

Because we do not have jurisdiction over a

district court’s determination that there are

genuine issues of material fact, we cannot

review [defendants’] arguments that there

was insufficient evidence to show [a

violation of clearly established law]. But we

do have jurisdiction, construing the facts and

drawing all inferences in favor of Plaintiffs,

to decide whether the evidence demonstrates

a violation by [defendants], and whether such

violation was in contravention of federal law

that was clearly established at the time.

I wrote the opinion in Pauluk and now confess error. I

tried to find daylight between deciding (a) defendant’s

ESTATE OF ANDERSON V. MARSH 25

motion for summary judgment based on “evidentiary

insufficiency” (resulting in no jurisdiction), and (b) deciding

that same motion after viewing disputed evidence in the light

most favorable to plaintiff (resulting in jurisdiction). But, as

I read Johnson, there is no daylight between (a) and (b).

They are different ways of saying the same thing.

“Evidentiary sufficiency” is what a court determines when it

views disputed evidence in the light most favorable to the

non-moving party and then decides a summary judgment

motion based on the evidence so viewed.

The Supreme Court has largely ignored Johnson. In the

post-Johnson era, the Court initially heard interlocutory

appeals without mentioning Johnson. The Court decided

appeals on the merits, without addressing jurisdiction, in

three cases in which two district courts and one court of

appeals had denied officers’ motions for summary judgment

based on qualified immunity after having made

determinations of “evidentiary sufficiency.”

In Saucier v. Katz, 533 U.S. 194 (2001), plaintiff Katz

sued Saucier, a military police officer, under Bivens v. Six

Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971),

alleging excessive use of force. Saucier moved for summary

judgment based on qualified immunity. The district court

denied summary judgment, holding that there was “a dispute

on a material fact . . . concerning whether excessive force

was used.” 533 U.S. at 199. Saucier brought an

interlocutory appeal, which the Ninth Circuit heard and

decided. On certiorari, the Supreme Court recited the

standard for summary judgment where there are disputed

facts: “A court required to rule upon the qualified immunity

issue must consider . . . this threshold question: Taken in the

light most favorable to the party asserting the injury, do the

facts alleged show the officer’s conduct violated a

26 ESTATE OF ANDERSON V. MARSH

constitutional right?” Id. at 201. The Court then decided

Saucier’s interlocutory appeal, reversing the denial of

summary judgment, without questioning its own appellate

jurisdiction or that of the Ninth Circuit.

In Brosseau v. Haugen, 543 U.S. 194 (2004), plaintiff

Haugen sued Brosseau, a police officer, under 42 U.S.C.

§ 1983, alleging excessive use of force. The district court

granted summary judgment to Brosseau based on qualified

immunity. The Ninth Circuit, viewing disputed evidence in

the light most favorable to plaintiff Haugen, held that the

evidence, so viewed, was sufficient to support a verdict for

plaintiff. The court reversed and remanded for trial.

Without questioning its own appellate jurisdiction, the Court

reversed, writing: “The material facts, construed in a light

most favorable to Haugen, are as follows.” Id. at 195. Later

in its opinion, the Court recited the language from Saucier:

“Taken in the light most favorable to the party asserting the

injury[.]” Id. at 197.

In Scott v. Harris, 550 U.S. 372 (2007), the plaintiff sued

Scott, a police officer, under 42 U.S.C. § 1983, alleging

excessive use of force. Scott moved unsuccessfully for

summary judgment based on qualified immunity. The Court

noted that “[t]he District Court denied the motion, finding

that there are material issues of fact on which the issue of

qualified immunity turns which present sufficient

disagreement to require submission to a jury.” Id. at 376

(internal quotation marks omitted). Scott brought an

interlocutory appeal. The Eleventh Circuit “[took

plaintiff’s] view of the facts as given” and affirmed. Id.

In the Supreme Court, the parties in Scott argued

vigorously for and against appellate jurisdiction, based on

conflicting interpretations of Johnson. Resp’t’s Br., 2007

WL 118977, at *1–3; Pet’r’s Reply Br., 2007 WL 760511,

ESTATE OF ANDERSON V. MARSH 27

at *1–5. The American Civil Liberties Union (“ACLU”)

filed an amicus brief devoted solely to arguing, based on

Johnson, that there was no interlocutory appellate

jurisdiction. The ACLU wrote:

Here, the district court’s denial of Petitioner

Scott’s summary judgment motion expressly

determined that the pretrial record set forth a

genuine issue of fact for trial. . . . As in

Johnson v. Jones, therefore, the district court

order in this case identified a fact-related

dispute about the pre-trial record. Its holding

that the evidence in the pre-trial record was

sufficient to show a genuine issue of fact for

trial is, thus, not appealable.

ACLU Amicus Br., 2007 WL 139201, at *6.

The Supreme Court did not acknowledge the parties’

dispute about the availability of appellate jurisdiction under

Johnson. It simply decided the merits, holding that the

officer was entitled to qualified immunity. The Court wrote:

The first step in assessing the

constitutionality of Scott’s actions is to

determine the relevant facts. As this case was

decided on summary judgment, there have

not yet been factual findings by a judge or

jury, and respondent’s version of events

(unsurprisingly) differs substantially from

Scott’s version. When things are in such a

posture, courts are required to view the facts

and draw reasonable inferences “in the light

most favorable to the party opposing the

[summary judgment] motion.” In qualified

immunity cases, this usually means adopting

28 ESTATE OF ANDERSON V. MARSH

(as the Court of Appeals did here) the

plaintiff’s version of the facts.

Scott, 550 U.S. at 378 (emphasis added; alterations in

original and citations omitted).

In none of these three cases, including Scott, did the

Court cite, or in any way acknowledge, its holding in

Johnson that there is no appellate jurisdiction in a case in

which the district court decides a “fact-related dispute,”

determines a question of “evidentiary sufficiency,” and

denies summary judgment based on the plaintiff’s version of

disputed evidence.

In Plumhoff v. Rickard, 572 U.S. 765 (2014), the Court

finally acknowledged the tension between Johnson and its

post-Johnson practice. Plaintiff was the daughter of the

driver of a fleeing car who had been shot and killed by police

officers. She brought suit under 42 U.S.C. § 1983, alleging

excessive use of force. The district court denied the officers’

motion for summary judgment based on qualified immunity.

A motions panel of the Sixth Circuit initially dismissed the

officers’ appeal under Johnson on the ground that it lacked

jurisdiction. On rehearing, the motions panel vacated its

dismissal and referred the jurisdictional issue to a merits

panel. Id. at 770. The merits panel interpreted Scott as

having created an “exception” to Johnson, allowing an

interlocutory appeal “to challenge blatantly and

demonstrably false factual determinations.” Id. at 771

(internal quotation marks omitted). The merits panel heard

the appeal and affirmed the district court’s denial of

summary judgment.

As in Scott, the parties argued vigorously in the Supreme

Court for and against interlocutory appellate jurisdiction.

Resp’t’s Br., 2014 WL 411285, at *4–5; Pet’r’s Reply Br.,

ESTATE OF ANDERSON V. MARSH 29

2014 WL 689547, at *1–3. Ohio and twenty-one other states

filed an amicus brief devoted almost entirely to Johnson.

They wrote in their brief:

The Court should resolve this jurisdictional

issue because the circuit courts have

erratically applied Johnson. And their

confusion about Johnson’s domain has only

increased after Scott v. Harris, 550 U.S. 372

(2007), which rejected a district court’s

version of the disputed facts in the process of

finding a police officer entitled to qualified

immunity.

States’ Amicus Br., 2014 WL 69402, at *2.

Even though there were disputed questions of material

fact in Plumhoff, the Court heard the appeal on the merits,

holding that the officers were entitled to qualified immunity.

The Court accepted plaintiff’s version of disputed facts,

viewed in the light most favorable to the plaintiff. It wrote:

Because this case arises from the denial of the

officers’ motion for summary judgment, we

view the facts in the light most favorable to

the nonmoving party, the daughter of the

driver who attempted to flee.

Id. at 768. It wrote further:

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

30 ESTATE OF ANDERSON V. MARSH

the Court of Appeals properly exercised

jurisdiction, and we therefore turn to the

merits.

Id. 773.

In exercising appellate jurisdiction, the Court in

Plumhoff did not acknowledge what it had written in

Johnson about “evidentiary sufficiency,” and it did not

dismiss the appeal. Instead, it distinguished Johnson on an

unrelated and irrelevant ground. It wrote, “The District

Court order in this case is nothing like the order in Johnson.”

Plumhoff, 572 U.S. at 773. Johnson was different, according

to the Court in Plumhoff, because the three police officers in

Johnson contended that they had not been present at the

beating and had been in no way involved. By contrast, the

Court wrote in Plumhoff, “Petitioners do not claim that other

officers were responsible for shooting Rickard; rather, they

contend that their conduct did not violate the Fourth

Amendment and, in any event, did not violate clearly

established law.” Id. Just as in Saucier, Haugen, and Scott,

the Court in Plumhoff never acknowledged Johnson’s

holding that there is no appellate jurisdiction when a court,

relying on plaintiff’s disputed evidence, determines a

question of “evidentiary sufficiency.”

In the four post-Johnson cases just cited, the Supreme

Court heard appeals in cases where the courts below (three

district courts and one court of appeals) denied summary

judgment based on plaintiff’s version of disputed evidence.

All four cases are inconsistent with Johnson’s holding that

there is no appellate jurisdiction where a court determines

“evidentiary insufficiency” based on plaintiff’s version of

disputed evidence.

ESTATE OF ANDERSON V. MARSH 31

After Plumhoff, in a case where the district court has

denied a motion for summary judgment based on qualified

immunity, the rule now appears to be the following: When

a district court relies on plaintiff’s version of disputed

evidence in denying the motion for summary judgment, a

court of appeals may generally exercise interlocutory

appellate jurisdiction. Only when officers provide disputed

evidence showing that they were not present, and were in no

way involved in the challenged conduct, is an appellate court

without jurisdiction to hear the officers’ interlocutory

appeal. It is distinctly counterintuitive that this should be the

remnant of Johnson that survives. Officers who present

evidence that they were not even at the scene are among the

officers who most deserve the protection of interlocutory

appeals. But I have difficulty reading the combination of

Johnson, Saucier, Haugen, Scott, and Plumhoff any other

way.

Post-Plumhoff decisions by the Court are consistent with

this view. In Mullenix v. Luna, 577 U.S. 7 (2015), state

trooper Mullenix, standing on an overpass, shot into a

fleeing car on the highway below, killing the driver. The

estate of the driver and others sued Mullenix, alleging

excessive force. Viewing disputed evidence in the light most

favorable to plaintiffs, the district court denied Mullenix’s

motion for summary judgment based on qualified immunity.

The Fifth Circuit affirmed. In a per curiam opinion, the

Supreme Court reversed, writing, “Although Mullenix

disputes [certain evidence], we view the facts in the light

most favorable to respondents, who oppose Mullenix’s

motion for summary judgment.” Id. at 9 n.*.

In White v. Pauly, 137 S. Ct. 548 (2017), a police officer

shot and killed Samuel Pauly who was standing at an open

window holding a handgun. Police officers surrounding the

32 ESTATE OF ANDERSON V. MARSH

house may have acted in a manner that caused Pauly and his

brother to form a reasonable belief that the officers were

private individuals threatening their safety. Pauly’s estate

and the surviving brother sued the officers, including the

shooter, alleging excessive force. Viewing the facts in the

light most favorable to plaintiffs, the district court denied a

motion for summary judgment based on qualified immunity.

The Tenth Circuit affirmed. In a per curiam opinion, the

Supreme Court reversed, writing, “The District Court denied

the officers’ motions for summary judgment, and the facts

are viewed in the light most favorable to the Paulys.” Id.

at 550 (citing Mullenix, 577 U.S. at 9 n.*).

In neither Mullenix nor Pauly did the Supreme Court

refer to Johnson. The Court referred to Plumhoff in both

cases, but only with respect to its holding on the merits.

Mullenix, 557 U.S. at 14–15; Pauly, 137 S. Ct. at 552. In

neither case did the Court express any doubt about the

appellate jurisdiction of the Fifth and Tenth Circuits. And in

neither case did any of the defendant officers dispute that

they were present at the scene.

The case now before us does not belong in the narrow

category of cases still apparently governed by Johnson. The

panel majority accurately recounts the factual dispute.

Viewing the disputed evidence in the light most favorable to

plaintiff, the district court denied qualified immunity to

Officer Marsh. Marsh does not dispute that he was at the

scene. Indeed, he concedes that he shot Anderson.

Therefore, under Plumhoff (as well as Mullenix and Pauly)

we have jurisdiction to hear this appeal.

I close with a plea to the Supreme Court. As is evident

from this case and countless others, the Court’s Johnson

jurisprudence has confused courts of appeals for twenty-five

years. Plumhoff is the only case in which the Supreme Court

ESTATE OF ANDERSON V. MARSH 33

has even acknowledged the confusion. Unfortunately,

Plumhoff and post-Plumhoff cases have only perpetuated it.

I respectfully ask the Supreme Court to tell us clearly, in an

appropriate case, whether and in what circumstances an

interlocutory appeal may be taken when the district court,

viewing disputed evidence in the light most favorable to

plaintiff, has denied a motion for summary judgment based

on qualified immunity.