The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 8, 2008
No. 07-51021
Charles R. Fulbruge III
Clerk
DIANA HOPGOOD, Individually; DAVID HOPGOOD, Individually;
VANESSA HOPGOOD, as Independent Administrator
of the Estate of Alexander Herold Hopgood, Deceased;
STACI BOVILL, Individually,
Plaintiffs-Appellees,
v.
FORMER AUSTIN POLICE OFFICER YVONNE GUNNLAUGSSON;
OFFICER EDWARD L. JOHNSON,
Defendants-Appellants.
Appeal from the United States District Court
for the Western District of Texas
No. 1:06-CV-306
Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 07-51021
Yvonne Gunnlaugsson and Edward Johnson bring this interlocutory ap-
peal challenging the denial of their motion for summary judgment based on qual-
ified immunity. On interlocutory appeal, our jurisdiction is limited and, where
the district court has said a genuine issue of fact exists, we are bound, though
we may review the court’s determination that a course of conduct is, as a matter
of law, objectively unreasonable in light of clearly established law. Kinney v.
Weaver, 367 F.3d 337, 346-47 (5th Cir. 2004) (en banc). The court found that
there was “a genuine issue of material fact regarding the extent of Johnson and
Gunnlaugsson’s knowledge of and acquiescence to [Staci Bovill’s ex-fiancee’s]
presence in Bovill’s apartment.”
The only question over which we have jurisdiction is whether the actions
of Gunnlaugsson and Johnson, viewed in the light most favorable to the plain-
tiffs, were objectively unreasonable. The presence of third parties in the execu-
tion of a warrant is unconstitutional where it is not “in aid of the execution of the
warrant.” Wilson v. Layne, 526 U.S. 603, 614 (1999).
Exigent circumstances excused the absence of a warrant; nonetheless,
Gunnlaugsson and Johnson concede that Bovill’s ex-fiancee’s presence was not
related to the exigent circumstances. Thus, given the procedural posture of this
case, their actions were objectively unreasonable in light of clearly established
law if the facts are construed in the light most favorable to the plaintiffs, so we
affirm the denial of summary judgment and remand for further proceedings.
We express no view on the ultimate outcome of the case. On remand, the
factfinder will need to resolve the outstanding issues of material fact to decide
whether the plaintiffs’ version is true. The en banc court in Kinney described
this circumstance as follows:
Since we lack jurisdiction to review a denial of summary judg-
ment based on the district court’s conclusion that fact questions ex-
ist regarding whether the defendants engaged in conduct that would
violate clearly established law, officials may sometimes be required
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No. 07-51021
to proceed to trial even though the ultimate resolution of those fac-
tual disputes may show that they are entitled to qualified immunity
from liability. The Supreme Court recognizes that this “threatens
to undercut” the policy of affording immunity from trial, but the
Court has said that “countervailing considerations” nonetheless sup-
port this limitation on interlocutory jurisdiction.” See Johnson [v.
Jones], 515 U.S. [304, 317-18 (1995)].
Kinney, 367 F.3d at 346 n.8.
AFFIRMED and REMANDED. The motion to strike a portion of appel-
lants’ brief is DENIED.
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