# Estate of Wayne Anderson v. John Marsh

> Court of Appeals for the Ninth Circuit · January 15, 2021 · 985 F.3d 726

URL: https://www.frixlaw.com/law-library/cases/4651957

## Case

- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** January 15, 2021
- **Citations:** 985 F.3d 726
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** Civil
- **Cited by:** 53 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4651957

## How later opinions describe it (automated extraction)

- holding, on interlocutory appeal, that the court was without jurisdiction to review the district court’s determination “that there is a genuine factual dispute as to whether [the plaintiff] made a sudden movement”

## Opinion text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4651957. Public record. Not legal advice.