Colston v. Barnhart , 130 F.3d 96 ( 1998 )


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  •                     Revised August 25, 1998
    
                     UNITED STATES COURT OF APPEALS
    
                            for the Fifth Circuit
    
                  _____________________________________
    
                               No. 96-40634
                  _____________________________________
    
    
                              LORENZO COLSTON,
    
                                                     Plaintiff-Appellee,
                                     and
    
                        YOLANDA MICHELLE COLSTON,
                   Individually and as Next Friend of
           Lauren Colston and Quinton Colston, Minor Children
    
                                       Intervenors Plaintiff-Appellees,
    
                                   VERSUS
    
    BRYAN BARNHART, Texas Department of Public Safety Officer; et al,
    
                                                            Defendants,
                               BRYAN BARNHART,
    
                                                    Defendant-Appellant.
    
         ______________________________________________________
    
              Appeal from the United States District Court
                    for the Eastern District of Texas
         ______________________________________________________
                              July 14, 1998
    
                   ON APPLICATION FOR REHEARING EN BANC
          (Opinion November 19, 1997, 5th Cir. 1997 ___F.3d___)
    
    Before KING, DAVIS and DeMOSS, Circuit Judges.
    
    DAVIS, Circuit Judge:
    
         The court having been polled at the request of one of the
    
    members of the court and a majority of the judges who are in
    
    regular active service not having voted in favor (Fed. R. App. P.
    
    and 5th Cir. R. 35), the Application for Rehearing En Banc is
    DENIED.    Colston’s Petition for Rehearing is also DENIED.             We take
    
    this opportunity, however, to expand upon our previous discussion
    
    concerning our exercise of jurisdiction over this appeal.
    
         In Johnson v. Jones, 
    515 U.S. 304
     (1995), and Behrens v.
    
    Pelletier, 
    116 S. Ct. 834
     (1996), the Supreme Court recently
    
    addressed the appealability of orders denying summary judgment on
    
    the basis of qualified immunity.         In Johnson, the Court held that
    
    a defendant may not appeal such an order insofar as that order
    
    determines whether or not the summary judgment record sets forth a
    
    “genuine” issue of fact for trial.               515 U.S. at 319-20.         In
    
    Behrens, the respondent argued that an appeal of the district
    
    court’s denial of summary judgment was not available under Johnson
    
    because the district court had concluded that “[m]aterial issues of
    
    fact remain[ed].”      116 S. Ct. at 842 (second alteration added).
    
    The Court was quick to point out, however, that the respondent had
    
    misread Johnson, observing that the denial of summary judgment
    
    often includes a determination that there are controverted issues
    
    of material fact and that “Johnson surely does not mean that every
    
    such denial of summary judgment is nonappealable.”                Id.   Rather,
    
    the Court explained, “Johnson held, simply, that determinations of
    
    evidentiary sufficiency at summary judgment are not immediately
    
    appealable   merely    because    they   arise    in   a   qualified-immunity
    
    case[.]”     Id.    The Court then held that “Johnson permits a
    
    defendant to claim on appeal that all of the conduct which the
    
    district   court   deemed     sufficiently   supported      for   purposes   of
    
    summary    judgment”    was    objectively       reasonable,      and   further
    
    
                                         2
    instructed that where the district court has not identified the
    
    particular charged conduct that it deemed adequately supported,
    
    “Johnson recognizes that under such circumstances ‘a court of
    
    appeals may have to undertake a cumbersome review of the record to
    
    determine   what   facts    the    district    court,   in   the    light   most
    
    favorable to the nonmoving party, likely assumed.’”                Id. (quoting
    
    Johnson, 515 U.S. at 319).
    
          We believe that the key to understanding Johnson and Behrens
    
    rests on the recognition that when a district court denies a motion
    
    for summary judgment on the ground that “genuine issues of material
    
    fact remain,” the court has made two distinct legal conclusions.
    
    First, the court has concluded that the issues of fact in question
    
    are   genuine,   i.e.,     the    evidence    is   sufficient   to    permit   a
    
    reasonable factfinder to return a verdict for the nonmoving party.
    
    See Ginsberg 1985 Real Estate Partnership v. Cadle Co., 
    39 F.3d 528
    , 531 (5th Cir. 1994) (defining “genuineness”).                 Second, the
    
    court has concluded that the issues of fact are material, i.e.,
    
    resolution of the issues might affect the outcome of the suit under
    
    governing law.     See id. (defining “materiality”).
    
          Johnson makes clear that an appellate court may not review a
    
    district court’s determination that the issues of fact in question
    
    are genuine. As the Court explained in Behrens, “determinations of
    
    evidentiary sufficiency at summary judgment are not immediately
    
    appealable merely because they happen to arise in a qualified-
    
    immunity case; if what is at issue in the sufficiency determination
    
    is nothing more than whether the evidence could support a finding
    
    
                                           3
    that particular conduct occurred, the question decided is not truly
    
    ‘separable’ from the plaintiff’s claim, and hence there is no
    
    ‘final decision’ under Cohen and Mitchell.”1              116 S. Ct. at 842.
    
    Behrens, on the other hand, makes clear that an appellate court is
    
    free to review a district court’s determination that the issues of
    
    fact in question are material.
    
         By way of illustration, take, for example, a § 1983 case where
    
    the plaintiff alleges that the defendant police officer shot him
    
    and the defendant alleges that he merely beat the plaintiff with
    
    his baton.       The district court denies the defendant’s motion for
    
    summary judgment on the ground that a genuine issue of material
    
    fact exists as to what type of weapon was involved.                The defendant
    
    might    argue    on   appeal   that    the   district   court    erred     in   two
    
    respects.        First,   he    might    argue   that    the     district    court
    
    erroneously concluded that a genuine issue of fact exists, i.e.,
    
    that the plaintiff presented insufficient evidence from which a
    
    reasonable juror could conclude that the defendant shot him rather
    
    than merely hit him with a baton.              Under Johnson, the appellate
    
    court could not consider this argument on interlocutory appeal.
    
         Second, the defendant might argue that the district court
    
         1
              In Cohen v. Beneficial Indus. Loan Corp., 
    337 U.S. 541
    ,
    546 (1949), the Court held that orders “which finally determine
    claims of right separable from, and collateral to, rights asserted
    in [an] action, too important to be denied review and too
    independent of the cause itself to require that appellate
    consideration be deferred until the whole case is adjudicated,” are
    “final decisions” under 28 U.S.C. § 1291. In Mitchell v. Forsyth,
    
    472 U.S. 511
    , 528 (1985), the Court held that a district court’s
    order denying a defendant’s motion for summary judgment on the
    basis of qualified immunity, to the extent it turns on an issue of
    law, is appealable under Cohen.
    
                                             4
    erroneously concluded that a material issue of fact exists, i.e.,
    
    that regardless of whether he shot the plaintiff or hit him with a
    
    baton his actions did not constitute excessive force.                Under
    
    Behrens, the appellate court could consider this             argument on
    
    interlocutory appeal.
    
          When the district court denies a motion for summary judgment
    
    and merely states that “genuine issues of material fact remain”
    
    without    identifying   those    issues,      application      of     the
    
    Johnson/Behrens rule becomes significantly more problematic.            On
    
    interlocutory appeal, the defendant will argue that the factual
    
    issues the district court has found in dispute are immaterial.          In
    
    doing so, the defendant will doubtless set forth a factual scenario
    
    that he claims is the scenario supported by the summary judgment
    
    evidence viewed in the light most favorable to the plaintiff.           He
    
    will then proceed to argue that, even under this factual scenario,
    
    he is entitled to qualified immunity. Without a statement from the
    
    district court as to which particular issues of fact it found in
    
    dispute, however, it will be impossible for the appellate court to
    
    determine whether the defendant’s version of the facts viewed in
    
    the light most favorable to the plaintiff mirrors the district
    
    court’s version of the facts viewed in the light most favorable to
    
    the   plaintiff.    If   the   appellate    court   cannot    make    this
    
    determination, then it will be unable to conclude whether the
    
    defendant is properly challenging the materiality of the factual
    
    issues the district court determined to be in dispute or whether
    
    the defendant is in effect improperly challenging the genuineness
    
    
                                      5
    of those issues.       Only if the defendant is challenging the former
    
    will the appellate court have jurisdiction over the defendant’s
    
    appeal.     Accordingly, the Supreme Court has instructed that under
    
    such circumstances “the court of appeals may have to undertake a
    
    cumbersome    review    of   the   record   to   determine   what   facts   the
    
    district court, in the light most favorable to the nonmoving party,
    
    likely assumed.”       Behrens, 116 S. Ct. at 842.
    
            In other words, where the district court does not identify
    
    those factual issues as to which it believes genuine disputes
    
    remain, an appellate court is permitted to go behind the district
    
    court’s determination and conduct an analysis of the summary
    
    judgment record to determine what issues of fact the district court
    
    probably considered genuine.         The appellate court is permitted to
    
    do so in order to ensure that the defendant’s right to an immediate
    
    appeal on the issue of materiality is not defeated solely on
    
    account of the district court’s failure to articulate its reasons
    
    for denying summary judgment.
    
            In this case, the district court in denying summary judgment
    
    did more than state that “genuine issues of material fact remain.”
    
    To wit, the district court stated that it found genuine issues of
    
    fact remained as to “what information Trooper Barnhart possessed
    
    immediately prior to and at the moment he fired the three shots at
    
    [Colston.]”2 Although the court’s statement certainly narrowed the
    
        2
              The district court also stated that it found that genuine
    issues of fact remained as to “whether Officer Barnhart had a
    reasonable belief of danger from the fleeing [Colston] which would
    justify the use of deadly force in self-defense.” The district
    court’s statement, however, merely recasts the ultimate
    
                                           6
    field of facts that it might conceivably have found to be at issue,
    
    it still lacked sufficient specificity to permit us to determine
    
    whether we had jurisdiction over Barnhart’s appeal and whether the
    
    district court may have concluded that there were genuine disputes
    
    as to facts that were actually immaterial.3                By contrast, if the
    
    district court had made a more specific statement such as “summary
    
    judgment is denied because a genuine issue of fact exists as to
    
    whether   it   would   have    appeared     to    a     reasonable   officer   in
    
    Barnhart’s position that Colston was running in the direction of
    
    the   patrol   car,”   we     would   have       been    able   to   make    these
    
    determinations.    We believe it unwise to attempt to articulate a
    
    test for the degree of specificity with which a district court must
    
    identify genuine issues of fact for these purposes. It must depend
    
    on the district court’s explanation of the nature of the factual
    
    dispute   in   light   of   the   summary    judgment       evidence    in   each
    
    
    determination in this case -- whether Barnhart’s behavior was
    objectively reasonable under the Fourth Amendment.             That
    determination is a question of law. See United States v. Wilson,
    
    36 F.3d 1298
    , 1303 (5th Cir. 1993); United States v. Rich, 
    992 F.2d 502
    , 505 (5th Cir. 1993).
          3
              For instance, the district court might have concluded
    that there was a genuine issue of fact as to whether it would have
    appeared to a reasonable officer in Barnhart’s position that
    Colston had seriously injured the other officer on the scene, thus
    justifying the use of deadly force. See Tennessee v. Garner, 
    471 U.S. 1
    , 11 (1985) (use of deadly force to prevent escape
    justifiable where officer has probable cause to believe suspect has
    committed crime involving the infliction of serious physical harm).
    If the undisputed facts showed that Colston was threatening
    Barnhart with serious bodily harm, thus justifying the use of
    deadly force, then it would be immaterial whether it would have
    appeared to a reasonable officer in Barnhart’s position that
    Colston had seriously injured the other officer on the scene. See
    id. (use of deadly force to prevent escape justifiable where
    suspect threatens officer with serious physical harm).
    
                                          7
    particular case.   In this case the district court’s statement was
    
    not sufficiently specific. This lack of specificity required us to
    
    undertake a review of the record to determine whether we had
    
    jurisdiction over Barnhart’s appeal.     As our majority opinion
    
    reflects, we conducted this review, and because we determined that
    
    Barnhart’s version of the facts mirrored the version of the facts
    
    that we determined the district court likely assumed, we concluded
    
    that Barnhart was properly challenging the materiality of the
    
    factual issues the district court believed in dispute and that we
    
    therefore possessed jurisdiction over his appeal.   On the merits,
    
    we concluded that Barnhart was entitled to qualified immunity.
    
    
    
    ENDRECORD
    
    
    
    
                                     8
    DeMOSS, Circuit Judge, dissenting from order on application for
    
    rehearing en banc.
    
    
    
         While the majority is correct in stating that “a majority of
    
    the judges who are in regular active service [have not] voted in
    
    favor” of rehearing en banc, Order on Reh’g, supra, at 1, it is
    
    more accurate and informative to state that the Court divided
    
    equally, eight to eight, on the motion for rehearing en banc.   That
    
    tie vote is reflective of the difficulty which the judges of this
    
    Court have in reading and interpreting the decisions of the Supreme
    
    Court in Johnson v. Jones, 
    515 U.S. 304
    , 
    115 S. Ct. 2151
     (1995),
    
    and Behrens v. Pelletier, 
    516 U.S. 299
    , 
    116 S. Ct. 834
     (1996), as
    
    they speak to the core question involved in this appeal: do we have
    
    appellate jurisdiction to review the district court’s denial of
    
    summary judgment sought on the grounds of qualified immunity?
    
         This case presents serious issues concerning our appellate
    
    jurisdiction in cases involving the denial of summary judgment on
    
    the grounds of qualified immunity.   I express the following views
    
    in the hopes that they may help to attract the Supreme Court’s
    
    attention to the increasingly complex panorama of doctrine and
    
    dissent that has evolved as the courts of appeals have struggled to
    
    reconcile the holdings of Johnson and Behrens.
    
         In light of the tie vote on whether to reconsider this case en
    
    banc, the panel opinion published at 
    130 F.3d 96
     still stands as
    
    the opinion of this Court.   I write now to expand on the dissent
    
    
                                    9
    which I filed in the panel opinion, just as the majority expands on
    
    its original majority opinion.            In Part I, I elaborate on the
    
    reasons which I first mentioned in my panel dissent as to why this
    
    Court does not have appellate jurisdiction over this controversy.
    
    In Part II, I respond to the new theory proposed by the majority in
    
    this order on rehearing as to how our Court does have appellate
    
    jurisdiction.      Finally, in Part III, I explain how the majority’s
    
    approach to the problem presented in this case is at odds with the
    
    Supreme Court’s guidance regarding the competing policies behind
    
    the   availability      of   both   a     remedy    for   deprivations       of
    
    constitutional rights under the color of state law and a qualified
    
    immunity for government officials who have violated citizens’
    
    rights in the course of executing their official duties.
    
    
    
                                         I.
    
    A.    Our appellate jurisdiction to review “final decisions,” 28
    
          U.S.C. § 1291, does not encompass collateral orders to the
    
          extent   that   they   implicate     the   substantive   merits   of   a
    
          complaint.
    
    
    
          The original panel opinion reversed the district court’s
    
    considered judgment that fact issues precluded summary judgment on
    
    the merits; and it dismissed the case based on its appellate
    
    determination that Trooper Bryan Barnhart acted in an “objectively
    
    reasonable” fashion when he shot Lorenzo Colston twice in the back.
    
    Appellate jurisdiction to make this judgment was, however, lacking.
    
    
                                        -10-
                                         10
    A    straightforward   application    of    the   authorities   relevant   to
    
    exercising interlocutory appellate jurisdiction reveals that we may
    
    not review the objective reasonableness of Trooper Barnhart’s
    
    conduct on appeal from the district court’s denial of his motion
    
    for summary judgment.     This is so primarily because applying that
    
    standard for determining whether Colston’s Fourth Amendment rights
    
    were violated, set forth in Graham v. Connor, 
    490 U.S. 386
    , 395,
    
    
    109 S. Ct. 1865
    , 1871 (1989), is not, as Supreme Court precedent
    
    requires, separable from the merits of the controversy.
    
    
    
    1.     The collateral-order doctrine governs the review of qualified-
    
           immunity appeals from denial of summary judgment.
    
    
    
           Appellate jurisdiction over interlocutory appeals from denials
    
    of summary judgment based on qualified immunity rests on three
    
    essential legal principles, as delineated by the Supreme Court in
    
    Johnson.    See Johnson, 515 U.S. at 309-13, 115 S. Ct. at 2154-56.
    
    First, 28 U.S.C. § 1291, the only possible statutory basis for
    
    appellate jursidiction in this case, provides that we may review
    
    only “final decisions” of a district court.           Second, courts use a
    
    practical application of § 1291 to allow interlocutory review of
    
    certain orders which are considered final only because they are
    
    collateral to the core of the case.         See Cohen v. Beneficial Indus.
    
    Loan Corp., 
    337 U.S. 541
    , 
    69 S. Ct. 1221
     (1949).           “To come within
    
    the ‘small class’ of . . . Cohen, the order must [1] conclusively
    
    determine the disputed question, [2] resolve an important issue
    
    
                                         -11-
                                          11
    completely separate from the merits of the action, and [3] be
    
    effectively unreviewable on appeal from a final judgment.”                    Puerto
    
    Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 
    506 U.S. 139
    ,
    
    144-45, 
    113 S. Ct. 684
    , 688 (1993) (quoting Coopers & Lybrand v.
    
    Livesay, 
    437 U.S. 463
    , 468, 
    98 S. Ct. 2454
    , 2458 (1978) (footnote
    
    omitted))    (internal       quotation    marks    omitted,       alterations     in
    
    original).      Third, as an application of the collateral-order
    
    doctrine, interlocutory appeals from the denial of summary judgment
    
    have been permitted in the qualified-immunity context for the
    
    purpose of resolving the abstract legal question of whether the
    
    lawlessness    of    a     defendant’s   alleged     acts    had    been     clearly
    
    established at the time of their commission.                      See Mitchell v.
    
    Forsyth, 
    472 U.S. 511
    , 525, 
    105 S. Ct. 2806
    , 2814-15 (1985).
    
    
    
    2.    The collateral-order doctrine does not apply in this case
    
          because the “objective reasonableness” of Trooper Barnhart’s
    
          conduct is not separable from the merits of the controversy.
    
    
    
          An interlocutory appeal from the denial of summary judgment in
    
    the qualified-immunity context is simply an application of the
    
    collateral-order doctrine.         This much is clear from Johnson, in
    
    which the Supreme Court found no appellate jurisdiction to review
    
    the   district       court’s    fact-based        sufficiency-of-the-evidence
    
    determination that the defendants were not entitled to summary
    
    judgment     based    on    qualified     immunity.         The    Johnson     Court
    
    specifically distinguished its decision from the Court’s earlier
    
    
                                            -12-
                                             12
    treatment    of   the   clearly-established-law     prong      of   qualified-
    
    immunity analysis in Mitchell v. Forsyth, 
    472 U.S. 511
    , 
    105 S. Ct. 2806
     (1985).      See Johnson, 515 U.S. at 314, 115 S. Ct. at 2157.
    
    Disputes over the application of the clearly-established-law prong
    
    of the qualified-immunity inquiry are separable from the merits of
    
    a controversy because “‘[a]n appellate court reviewing the denial
    
    of   the   defendant’s   claim   of    immunity   need   not    consider   the
    
    correctness of the plaintiff’s version of the facts.’”              Id. at 313,
    
    115 S. Ct. at 2156 (quoting Mitchell, 472 U.S. at 528, 105 S. Ct.
    
    at 2816) (alteration in original).4
    
          Trooper Barnhart’s contention here on appeal -- that his
    
    conduct was objectively reasonable and therefore Colston’s suit
    
    should be dismissed -- is not reviewable precisely because it does
    
    not, as the doctrine of collateral orders requires, “resolve an
    
    important issue completely separate from the merits of the action.”
    
    Puerto Rico Aqueduct, 506 U.S. at 144-45, 113 S. Ct. at 688;
    
    Coopers & Lybrand, 437 U.S. at 468, 98 S. Ct. at 2458.                 Johnson
    
    elaborated on the separability inquiry, noting that
    
                The requirement that the matter be separate from
    
                the merits of the action itself means that review
    
          4
              In the present case, there is no dispute over the
    distinct and separate legal issue of whether the law had been
    clearly established in this case. There is no doubt that Colston’s
    constitutional right under the Fourth Amendment to be free from
    Trooper Barnhart’s use of unreasonable and excessive force arising
    out of this police stop was clearly established long before the
    circumstances involved in this case occurred. The panel majority
    opinion explicitly recognizes both that this constitutional right
    was clearly established and that Colston appropriately alleged a
    violation of his constitutional rights in this § 1983 action. See
    Colston, 130 F.3d at 99.
    
                                          -13-
                                           13
                 now is less likely to force the appellate court to
    
                 consider approximately the same (or a very similar)
    
                 matter more than once, and also seems less likely
    
                 to    delay   trial      court    proceedings     (for,      if   the
    
                 matter is truly collateral, those proceedings might
    
                 continue while the appeal is pending).
    
    
    
    Johnson, 515 U.S. at 311, 115 S. Ct. at 2155 (citing CHARLES ALAN
    
    WRIGHT   ET AL.,   FEDERAL PRACTICE   AND   PROCEDURE § 3911, at 333-34 (2d ed.
    
    1992)) (emphasis in original).
    
         Though the matter does not require elaborate exposition,
    
    Trooper     Barnhart’s     argument         that   his   conduct    was   objectively
    
    reasonable plainly does not meet this standard.                    Rather than being
    
    a   separate,         distinct,       collateral         issue,     the        objective
    
    reasonableness of Trooper Barnhart’s actions is in fact the precise
    
    issue that would have been presented to the jury if Colston’s suit
    
    had gone to trial.         Should there have been an eventual appeal from
    
    a final judgment on the merits of Colston’s claims, our Court would
    
    have been confronted with the exact same issue.                    And to top it all
    
    off, in this case the true hallmark of a collateral order -- the
    
    continuation of trial proceedings while the appeal progressed                        --
    
    has not occurred.           As is now apparent, it would have been a
    
    complete waste of time for the district court and the court of
    
    appeals to simultaneously adjudicate the objective reasonableness
    
    of shooting Colston twice in the back as he fled the scene.
    
    
    
    
                                                -14-
                                                 14
          The panel majority does not contend, because they could not
    
    possibly     establish,     that     their     review       of    the   objective
    
    reasonableness of Trooper Barnhart’s arrest technique is separable
    
    from the merits of Colston’s complaint.                 That single factor is
    
    completely determinative of the absence of appellate jurisdiction
    
    over Trooper Barnhart’s appeal.
    
    
    
    3.    The panel majority’s approach impermissibly engages in case-
    
          specific factual analysis to determine appealability.
    
    
    
          As a final matter concerning the panel majority’s implicit
    
    determination that the district court’s denial of summary judgment
    
    was   an   appealable     collateral       order,   I   note     that   the   panel
    
    majority’s treatment of this issue is utterly inconsistent with the
    
    yet another principle of the Cohen doctrine.                     Both Johnson and
    
    Behrens     acknowledge     that     courts    “decide      appealability       for
    
    categories of orders rather than rather than individual orders,”
    
    Johnson, 115 S. Ct. at 2157 (citing Digital Equip. Corp. v. Desktop
    
    Direct, Inc., 
    511 U.S. 863
    , 863, 
    114 S. Ct. 1992
    , 1993 (1994)
    
    (syllabus)), and “‘[a]ppeal rights cannot depend on the facts of a
    
    particular case,’” Behrens, 116 S. Ct. at 841 (quoting Carroll v.
    
    United States, 
    354 U.S. 394
    , 405, 
    77 S. Ct. 1332
    , 1339 (1957), and
    
    citing Digital Equip., 511 U.S. at 868, 114 S. Ct. at 1996).
    
    “[T]he issue of appealability under § 1291 is to be determined for
    
    the entire category to which a claim belongs, without regard to the
    
    chance     that   the   litigation    at    hand    might   be    speeded,    or   a
    
    
                                          -15-
                                           15
    ‘particular    injustic[e]’    averted     by   a   prompt   appellate   court
    
    decision.”    Digital Equip., 511 U.S. at 868, 114 S. Ct. at 1996
    
    (quoting Van Cauwenberghe v. Biard, 
    486 U.S. 517
    , 529, 
    108 S. Ct. 1945
    , 1953 (1988)) (alteration in original, internal citation
    
    omitted).
    
         The    majority’s   approach   to     determining   the   propriety   of
    
    interlocutory appellate jurisdiction violates this principle in
    
    spectacular fashion.     The panel admits that its approach required
    
    it to “undertake a review of the record to determine whether we had
    
    jurisdiction over Trooper Barnhart’s appeal.”                Order on Reh’g,
    
    supra., at 8.    But what did the panel expect to find in the record
    
    other than facts?    “Appeal rights cannot depend on the facts of a
    
    particular case.”    Behrens, 116 S. Ct. at 841 (internal quotation
    
    marks omitted, emphasis supplied).
    
         The error of the panel opinion’s approach is evident. Neither
    
    Johnson nor Behrens contemplates a “cumbersome review of the
    
    record” for the threshold purpose of determining whether there is
    
    appellate jurisdiction.       It is, rather, only a suggestion for how
    
    to proceed on determining whether the plaintiff alleged a violation
    
    of then-clearly-established law after appellate jurisdiction has
    
    already been determined.
    
         To conclude, there is one, primary, eminently simple reason
    
    why interlocutory appeal was unavailable to Trooper Barnhart.               In
    
    order for us to proceed under § 1291, there must be a final order.
    
    In the absence of a final judgment, the elements of the collateral-
    
    order doctrine must be satisfied to permit appeal under that
    
    
                                        -16-
                                         16
    statute.    One of those elements is separability of the appealed
    
    order from the ultimate merits of the controversy, and that element
    
    is simply not present in this case.         Moreover, the panel majority
    
    impermissibly tailors its jurisdictional analysis to the facts of
    
    the case.    The collateral-order doctrine cannot be stretched to
    
    establish appellate jurisdiction in this case, and the appeal
    
    should have been dismissed.
    
    
    
    B.   Behrens v. Pelletier does not create an exception to the
    
         collateral-order doctrine’s separability requirement.
    
    
    
         The above reasoning notwithstanding, the majority relies upon
    
    language    in   Behrens   to   support    its   assumption   of   appellate
    
    jurisdiction.     Seven months after it decided Johnson, the Supreme
    
    Court handed down its decision in Behrens.          After disposing of the
    
    primary issue in the case,5 the Court went on to address two
    
    additional grounds upon which the respondent in that case argued
    
    that interlocutory appeal was not available. The discussion of the
    
    second of these two issues, which involved some elaboration on the
    
    holding in Johnson, is the source of much of the confusion which
    
    now exists in our Court and in other courts of appeals as to the
    
         5
              The Supreme Court granted certiorari in Behrens to
    evaluate the Ninth Circuit’s rule that there can be only one
    interlocutory appeal on the issue of qualified immunity. The Court
    rejected that rule, holding that the mere fact that the public
    official in Behrens had already appealed the trial court’s denial
    of his motion to dismiss under FED. R. CIV. P. 12(b)(6) did not
    preclude a further appeal when the trial court denied his motion
    for summary judgment on the grounds of qualified immunity. See
    Behrens, 116 S. Ct. at 840.
    
                                        -17-
                                         17
    impact and effect of Behrens on Johnson.                     See, e.g., Hart v.
    
    O’Brien, 
    127 F.3d 424
     (5th Cir. 1997); Elliott v. Leavitt, 
    99 F.3d 640
     (4th Cir. 1996), reh’g en banc denied 7-5 with opinions, 
    105 F.3d 174
     (4th Cir.), cert. denied, 
    117 S. Ct. 2512
     (1997).
    
           The relevant discussion in Behrens begins by identifying and
    
    reaffirming the basic distinction that Johnson draws as to the
    
    appealability of a district court’s decisions on “issues of law”
    
    and the nonappealability of those decisions on “issues of fact.”
    
    See Behrens, 516 U.S. at 838-39, 116 S. Ct. at 305-06; Johnson, 515
    
    U.S.   313-18,     115   S.    Ct.    at    2156-58.      Behrens    confirms     that
    
    interlocutory appeal is not available when the trial court relies
    
    upon the existence of genuine factual disputes to deny summary
    
    judgment.       See Behrens, 516 U.S. at 842, 116 S. Ct. at 313.                  Such
    
    disputes, Behrens reasons, are not collateral orders under the
    
    Cohen doctrine because they are not “truly separable” from the
    
    plaintiff’s claim.       See supra Part I.A.2.           When, on the other hand,
    
    the district court’s denial is based solely upon “an ‘abstract
    
    issu[e] of law’ related to qualified immunity -- typically, the
    
    issue whether the federal right allegedly infringed was ‘clearly
    
    established,’”      then      the    issue    to   be   addressed    on    appeal   is
    
    sufficiently      distinct      from    the    plaintiff’s    claim       to   support
    
    interlocutory appeal.          Id. (quoting Johnson, 515 U.S. at 317, 115
    
    S.   Ct.   at    2158)   (internal         citations    omitted,    alterations     in
    
    original).       On these points, Behrens and Johnson are in perfect
    
    agreement.
    
    
    
    
                                               -18-
                                                18
         The   confusion    is    created     by     the    following        passage    from
    
    Behrens:
    
                     Here     the       District         Court’s       denial      of
    
               petitioner’s       summary-judgment          motion     necessarily
    
               determined     that      certain      conduct        attributed     to
    
               petitioner (which was controverted) constituted a
    
               violation     of    clearly    established           law.      Johnson
    
               permits petitioner to claim on appeal that all of
    
               the   conduct       which     the     District        Court     deemed
    
               sufficiently       supported        for   purposes      of     summary
    
               judgment met the Harlow [v. Fitzgerald, 
    457 U.S. 800
    , 
    102 S. Ct. 2727
     (1982)] standard of “objective
    
               legal reasonableness.”          This argument was presented
    
               by petitioner in the trial court, and there is no
    
               apparent impediment to its being raised on appeal.
    
               And   while        the    District          Court,     in      denying
    
               petitioner’s       summary-judgment           motion,        did   not
    
               identify the particular charged conduct that it
    
               deemed   adequately         supported,       Johnson        recognizes
    
               that under such circumstances “a court of appeals
    
               may have to undertake a cumbersome review of the
    
               record to determine what facts the district court,
    
               in the light most favorable to the nonmoving party,
    
               likely assumed.”         Johnson, [515 U.S. at 319], 115
    
               S. Ct., at 2159.         That is the task now facing the
    
               Court of Appeals in this case.
    
    
                                           -19-
                                            19
    Behrens, 516 U.S. at 313, 116 S. Ct. at 842.6
    
    
    
    1.   Behrens v. Pelletier refers only to determining “objective
         legal reasonableness” for qualified-immunity purposes under
         Harlow v. Fitzgerald -- not other semantically similar merits-
         bound inquiries.
    
         The second sentence of the above-quoted paragraph is where the
    
    ambiguities and uncertainties first arise.7     The original panel
    
    opinion applies this sentence as if it gives Trooper Barnhart, who
    
    invoked qualified immunity, a license to seek interlocutory review
    
    of the denial of his summary judgment motion on the ground that,
    
    assuming the truth of whatever allegations Colston made, Trooper
    
    
         6
              The first sentence of this paragraph points out that by
    denying summary judgment the trial court implicitly ruled that if
    the conduct giving rise to the lawsuit was what was alleged in the
    complaint, it violated clearly established law. This makes sense
    because if a trial court were to determine that the pertinent law
    was not clearly established at the time of the defendant’s conduct,
    the trial court would grant the defendant’s motion for summary
    judgment on qualified immunity, not deny it. See, e.g., Winfield
    v. Bass, 
    106 F.3d 525
    , 529 (4th Cir. 1997) (en banc).          That
    inherent determination is immediately appealable even when, as in
    Behrens, the district court may also have noted the existence of
    nonappealable factual disputes. See, e.g., id. at 529-30.
         7
              I note that after generally tracking the language of
    Johnson, this is where the Behrens opinion departs from previously-
    familiar territory.     The semantic switch from discussing the
    typical qualified-immunity issue of “clearly established law” to a
    hypothetical (in Behrens) issue of “objective legal reasonableness”
    creates many of the problems that are now plaguing the courts of
    appeals.
    
         Neither the phrase “deemed sufficiently supported” nor the
    phrase “objective legal reasonableness” appear anywhere in the
    Johnson opinion. Moreover, Harlow is cited only once in Johnson.
    See Johnson, 515 U.S. at 311, 115 S. Ct. at 2155 (citing Harlow,
    457 U.S. at 818, 102 S. Ct. at 2738).      Neither the portion of
    Johnson that cites Harlow nor the portion of Harlow which is cited
    in Johnson has anything to do with determining what the trial court
    found or did not find in its order denying summary judgment.
    
                                   -20-
                                    20
    Barnhart’s conduct nevertheless met the Graham standard of being
    
    objectively reasonable.
    
           The majority erred when it construed Behrens in that manner.
    
    Such a reading is not supported by Behrens, which refers to “the
    
    Harlow standard of ‘objective legal reasonableness.’” Behrens, 516
    
    U.S. at 313, 116 S. Ct. at 842.           Despite the Harlow standard’s
    
    semantic similarity to Graham’s “objectively reasonable” test, that
    
    prong of Harlow’s qualified-immunity inquiry is different and
    
    functionally distinct from the merits-bound Graham inquiry.             The
    
    construction in the original panel opinion thus distorts a single
    
    isolated sentence to create a direct conflict with Johnson and with
    
    the logical analysis and reasoning in Behrens itself.
    
    
    
    a.     The function of Harlow v. Fitzgerald’s “objective legal
           reasonableness” qualified-immunity standard makes it a proper
           subject for interlocutory review.
    
           Proper application of the “objective legal reasonableness”
    
    standard established in Harlow does not establish whether the
    
    conduct in question violated the law per se.      Harlow’s reference to
    
    “objective legal reasonableness” speaks only to a facet of whether
    
    the plaintiff alleged a violation of “clearly established statutory
    
    or constitutional rights of which a reasonable person would have
    
    known” at the time an action occurred.         Harlow, 457 U.S. at 818,
    
    102 S. Ct. at 2738.     When the law was clearly established, Harlow
    
    instructs that “the immunity defense ordinarily should fail, since
    
    a    reasonably   competent   public   official   should   know   the   law
    
    governing his conduct.”       Id. at 818-19, 102 S. Ct. at 2738.
    
    
                                       -21-
                                        21
         If the summary-judgment proof is sufficient to raise a genuine
    
    issue of material fact, a motion for summary judgment on the
    
    grounds of qualified immunity should be denied and the matter
    
    should be developed fully at trial.8    See FED. R. CIV. P. 56(c).   The
    
    primary task of an appellate court in an ordinary interlocutory
    
    qualified-immunity appeal from the denial of a motion for summary
    
    judgment is to address the abstract legal question of whether the
    
    law under which the plaintiff seeks relief was clearly established
    
    at the time of the official’s conduct.      See, e.g., Mitchell, 472
    
    U.S. at 528, 105 S. Ct. at 2815.       If it was, the case should be
    
    remanded and the injured citizen should be given the opportunity to
    
    prove that the official’s conduct did in fact violate the law and
    
    did in fact produce the injury.
    
         It is possible, of course, that the injured citizen might not
    
    prevail at trial.   But if the law involved at the time of the
    
         8
                In this regard the Supreme Court also said:
    
                        By defining the limits of qualified
                        immunity essentially in objective
                        terms, we provide no license to
                        lawless   conduct.       The    public
                        interest in deterrence of unlawful
                        conduct and in compensation of
                        victims remains protected by a test
                        that focuses on the objective legal
                        reasonableness of an official’s
                        acts.   Where an official could be
                        expected   to   know   that    certain
                        conduct would violate statutory or
                        constitutional rights, he should be
                        made to hesitate; and a person who
                        suffers   injury   caused    by   such
                        conduct may have a cause of action.
    
    Id. at 2739; see also Crawford-El v. Britton, 
    118 S. Ct. 1584
    , 1593
    (1998).
    
                                   -22-
                                    22
    conduct was clear and if the injured citizen presents sufficient
    
    proof at summary judgment to persuade the district court that a
    
    jury verdict for the injured citizen could be sustained, then the
    
    public official must bear the risk of trial just like any other
    
    civil defendant.       See generally infra Part III.            The policy --
    
    embodied   by   the   judge-made   qualified-immunity      doctrine     --   of
    
    protecting   public    officials   from    frivolous   claims     based   upon
    
    ambiguous concepts of the law must under these circumstances yield
    
    to another public policy -- dictated by Congress and embodied in 42
    
    U.S.C. § 1983 -- of protecting citizens from damage and injury
    
    caused by the conduct of public officials which violates clearly
    
    established constitutional principles. Cf. Crawford-El v. Britton,
    
    
    118 S. Ct. 1584
    , 1594-96 (1998).
    
    
    
    b.   The function of Graham v. Connor’s “objectively reasonable”
         substantive excessive-force standard makes it an improper
         subject for interlocutory review.
    
         Instead    of    reading   Johnson    and   Behrens   in   their   proper
    
    context, the majority misreads the Behrens reference to “the Harlow
    
    standard of objective legal reasonableness” (which is closely
    
    related to the determination of whether the law was “clearly
    
    established” at any given time) to be interchangeable with the
    
    “objectively reasonable” test established in Graham.               The Graham
    
    standard -- the proper test for evaluating the merits of Colston’s
    
    claim9 -- is used to determine whether an officer’s conduct was
    
         9
              See Graham, 490 U.S. at 396-97, 109 S. Ct. at 1871-72.
    Of course, in Colston’s case the proper application of the Graham
    standard is informed by the Supreme Court’s observations about the
    
                                        -23-
                                         23
    “excessive” such that it would violate the Fourth Amendment’s
    
    prohibition    against   unreasonable    seizures,   but   not   to   decide
    
    matters of qualified immunity.
    
         This confusion was aptly demonstrated in several parts of the
    
    original majority opinion.      At one point, the majority asserted:
    
    “We therefore have interlocutory jurisdiction to determine the
    
    legal issue of whether Trooper Barnhart’s conduct was objectively
    
    reasonable.”    Colston, 130 F.3d at 98-99.      In characterizing the
    
    issue of “whether Barnhart’s conduct was objectively reasonable” as
    
    a “legal issue” subject to interlocutory appeal, the majority cited
    
    Mitchell, Johnson, and Behrens.     See id.    All of those cited cases
    
    deal with the issue of qualified immunity; none of them address in
    
    any way the question of whether, on the merits, a defendant
    
    official’s conduct was “objectively reasonable.”           Elsewhere, the
    
    majority claimed:
    
              In Graham v. Connor the Supreme Court explained
              that the reasonableness inquiry in an excessive
              force case is an objective one; evaluating the
              officer’s conduct under the Fourth Amendment we
              must balance the amount of force used against the
              need for that force with reference to clearly
              established law at the time of the conduct in
              question.
    
    Id. at 99 (internal citations omitted, emphasis supplied). But the
    
    problem with this quotation is that the italicized phrase requiring
    
    
    
    
    Fourth Amendment’s restrictions on the use of deadly force. See
    generally Tennessee v. Garner, 
    471 U.S. 1
    , 
    105 S. Ct. 1694
     (1985).
    
                                      -24-
                                       24
    reference to clearly-established law does not appear anywhere in
    
    the text of Graham.10
    
         The majority’s approach is mistaken not only because it
    
    misreads Behrens, but more fundamentally because it results in the
    
    core substantive issue in a case being reviewed as a collateral
    
    order.    As discussed supra, the Cohen doctrine’s separability
    
    requirement forbids this result.      The district court in this case
    
    identified two genuine and material issues of fact related to the
    
    objective reasonableness of Trooper Barnhart’s actions.            These
    
    factual   issues   do    not   preclude   evaluating   --   as   plainly
    
    contemplated by Behrens -- whether Trooper Barnhart’s actions
    
    
        10
              This is not surprising because Graham did not involve any
    claim of qualified immunity at all, see Graham, 490 U.S. at 399
    n.12, 109 S. Ct. at 1873 n.12, and the case was actually tried
    before a jury in the district court. Rather, Graham concerned the
    questions of which constitutional provision protects a citizen from
    excessive force during arrest and how to define the criteria for
    measuring whether the force used to effect a particular seizure was
    reasonable or unreasonable under the Fourth Amendment. In this
    latter regard the Supreme Court in Graham held:
    
                            Because      “[t]he      test     of
                            reasonableness under the Fourth
                            Amendment is not capable of precise
                            definition or mechanical operation,”
                            its proper application requires
                            careful attention to the facts and
                            circumstances of each particular
                            case, including the severity of the
                            crime at issue, whether the suspect
                            poses an immediate threat to the
                            safety of the officers or others,
                            and whether he is actively resisting
                            arrest or attempting to evade arrest
                            by flight.
    
    Graham, 490 U.S. at 396, 109 S. Ct. at 1872 (alterations in
    original, internal citation omitted) (citing Garner, 471 U.S. at 8-
    9, 105 S. Ct. at 1699-1700).
    
                                      -25-
                                       25
    satisfy the “Harlow standard of objective legal reasonableness,”
    
    which is a legal test relating to the legal determination of
    
    whether or not the law was clearly established at any given time.
    
    But when the proper Supreme Court precedents are utilized, the
    
    question of whether a police officer used excessive force in
    
    arresting a citizen is a question which cannot be answered without
    
    making factual determinations on the basis of the evidence and
    
    testimony in the individual case.   Which is as it should be.   As is
    
    suggested by the district court’s denial of summary judgment, the
    
    factual record simply has not been sufficiently developed to permit
    
    judgment as a matter of law.     Consequently, the panel majority
    
    erred in determining that our Court had interlocutory jurisdiction
    
    to address the merits of the ultimate factual dispute as to whether
    
    under all of the circumstances Trooper Barnhart’s use of deadly
    
    force by shooting Colston twice in the back was or was not
    
    excessive.
    
    
    
    2.   Behrens v. Pelletier refers to “a cumbersome review of the
         record” for the sole purpose of establishing a universe of
         facts used to     answer abstract legal issues related to
         qualified immunity -- not other merits-bound purposes.
    
         Another stumbling block in the infamous Behrens passage is the
    
    now-oft-quoted reference to circumstances, recognized by Johnson,
    
    in which “a court of appeals may have to undertake a cumbersome
    
    review of the record to determine what facts the district court, in
    
    the light most favorable to the non-moving party, likely assumed.”
    
    Behrens, 516 U.S. at 313, 116 S. Ct. at 842; Johnson, 515 U.S. at
    
    319, 115 S. Ct. at 2159.   An examination of the full context of
    
                                   -26-
                                    26
    this   particular    sentence   from   Johnson   resolves   any   perceived
    
    ambiguities between the language of Johnson and the language of
    
    Behrens.
    
           This Johnson sentence was prompted by, and was intended to
    
    respond to, the claim that if a district court simply denies the
    
    motion for summary judgment without explanation, an appellate court
    
    would be unable to determine whether the district court’s decision
    
    was based upon fact-based issues that may not be immediately
    
    appealed or abstract legal issues that may be immediately appealed.
    
    See Johnson, 515 U.S. at 319, 115 S. Ct. at 2159. The Court
    
    rejected that claim, stating that the problem was not serious
    
    enough     to   require   a   rule   making   fact-based    determinations
    
    appealable.     See id.   The Court then concluded that “[w]hen faced
    
    with an argument that the district court mistakenly identified
    
    clearly established law, the court of appeals can simply take, as
    
    given, the facts that the district court assumed when it denied
    
    summary judgment for that (purely legal) reason.”           Id.
    
           Thus Johnson, by its own terms, speaks of a “cumbersome review
    
    of the record” only in circumstances in which (1) the district
    
    court denied summary judgment without indicating its reasons for
    
    doing so, (2) there is a “given set of facts,” in other words,
    
    facts which the parties have stipulated or which are undisputed,
    
    and (3) the appellate court is faced with a contention “that the
    
    district court mistakenly identified clearly established law.”
    
    
    
    
                                         -27-
                                          27
    None of these circumstances existed in Johnson, and none exist here
    
    in this case.11   See id.
    
         The   language   used   in   Behrens    was   appropriate   to   the
    
    circumstances involved in that case.12      The Supreme Court concluded
    
         11
              It is also important to note that both Johnson and
    Colston’s complaint deal with the Fourth Amendment right to be free
    from unreasonable seizures. In Behrens, on the other hand, the
    plaintiff asserted that the conduct of the defendant violated his
    right to procedural due process and deprived him of substantive due
    process under “clearly established and Constitutionally protected
    property and liberty rights . . . to specific employment and to
    pursue his profession free from undue governmental influence.”
    Behrens, 516 U.S. at 302, 116 S. Ct. at 837 (internal quotation
    marks omitted).     In Behrens, two of the three circumstances
    required by Johnson were present: the trial court simply denied the
    motion for summary judgment, and the defendant asserted that his
    actions had not violated any “clearly established” right of the
    respondent regarding his employment. See id. at 304, 116 S. Ct. at
    838.
        12
              In Behrens, Pelletier complained that Behrens, acting in
    his capacity as a supervisory agent for the Federal Home Loan Bank
    Board, had written a letter disapproving Pioneer Savings and Loan
    Association’s request for approval of the hiring of Pelletier as
    its managing officer. Id. at 302, 116 S. Ct. at 836-37. As a
    result of this letter, Pioneer asked Pelletier to resign and when
    he refused, fired him. Three years later, Pelletier brought suit
    in federal court, charging that Behrens’s action in writing the
    letter had effectively discharged him from his post at Pioneer.
    Pelletier claimed that his discharge, in summary fashion and
    without notice or opportunity to be heard, violated his right to
    procedural due process. Id. at 302, 116 S. Ct. at 837.
    
         Thus, Behrens presented a serious question as to whether the
    law was “clearly settled” at the time the letter was written in
    1986, such that the author of such a letter could be personally
    liable for the resulting discharge of respondent. Id. The trial
    court denied Behrens’s summary judgment motion, implicitly finding
    that if the facts alleged by Pelletier were established, there
    could be a violation of clearly established law. Behrens appealed,
    arguing that the law was not clearly established. Id. The court
    of appeals rejected that argument, finding that it was not before
    the court. Id. at 304, 116 S. Ct. at 838. On remand, the district
    court again denied Behrens’s motion for summary judgment on
    qualified immunity, this time with an “unadorned” statement that
    material issues of fact precluded summary judgment.     Id.   When
    Behrens tried to appeal again, the Ninth Circuit declined to
    
                                      -28-
                                       28
    that the issue of whether the law was “clearly established” needed
    
    to be addressed13 -- a “legal issue” which Johnson recognized as
    
    being typically appealable.            See Johnson, 515 U.S. at 311, 115 S.
    
    Ct. at 2155 (citing Mitchell, 472 U.S. at 530, 105 S. Ct. at 2817).
    
    It is, therefore, inappropriate to conclude that Behrens in any way
    
    overrides    the    Supreme       Court’s    clear   statement     of   the    law   in
    
    Johnson, or that Johnson should not control our disposition in this
    
    case.      The “cumbersome review of the record” contemplated by
    
    Johnson and     Behrens      is    conducted     for   the   limited    purpose      of
    
    establishing a set of facts (sufficiently supported by the evidence
    
    for the purposes of summary judgment) that are then used to answer
    
    the abstract legal question of whether the plaintiff has alleged a
    
    violation of clearly-established law.                Behrens authorizes nothing
    
    more.     It is therefore patent error for the panel majority in this
    
    case to construe Behrens as an implicit exception to the strictures
    
    of the collateral-order doctrine.
    
    
    
    3.   Thus, the panel majority fundamentally misapplied Behrens v.
         Pelletier in assuming appellate jurisdiction to determine the
         objective reasonableness of Trooper Barnhart’s actions.
    
         In    exercising     appellate         jurisdiction,    the   panel      majority
    
    misconstrued       Behrens    in    two   key    respects.     First,      Behrens’s
    
    
    address the issue because of its rule prohibiting more than one
    appeal on qualified immunity issues. Id.
         13
              The Ninth Circuit’s opinion on remand from the Supreme
    Court confirms that there was no basis for holding that Behrens’s
    conduct deprived Pelletier of any clearly established liberty or
    property interest in specific employment at the time of writing the
    letter. See Behrens v. Pelletier, 
    130 F.3d 429
     (9th Cir. 1997),
    modified on reh’g, 
    145 F.3d 1084
     (9th Cir. 1998).
    
                                              -29-
                                               29
    reference     to    the    “Harlow      standard      of     ‘objective      legal
    
    reasonableness,’” Behrens, 516 U.S. at 313, 116 S. Ct. at 842, must
    
    be construed in a fashion consistent with Harlow itself. It cannot
    
    be used to reach any other aspect of the case unrelated to
    
    qualified immunity which the appellate court may wish to review.
    
    There is no appellate jurisdiction to entertain an interlocutory
    
    appeal that presents issues which are inextricably intertwined with
    
    the merits of the plaintiff’s complaint, for to do so would violate
    
    the collateral-order doctrine’s separability requirement.                 Second,
    
    Behrens does not broadly authorize courts of appeals to conduct de
    
    novo reviews of the record in interlocutory qualified-immunity
    
    appeals.        Instead,   the    “cumbersome      review     of   the    record”
    
    contemplated by Johnson and Pelletier refers only to the limited
    
    review required to decide the distinct legal question of whether
    
    the   conduct    alleged   by    the   plaintiff    violated       then-clearly-
    
    established law.
    
          Because the “objective reasonableness” of the force applied by
    
    Trooper Barnhart to arrest Colston is not an issue separable from
    
    the merits of Colston’s complaint, it is not separable from the
    
    merits and is therefore not subject to interlocutory appeal.                    The
    
    majority erred by applying Behrens to achieve a contrary result.
    
    
    
                                           II.
    
          The new theory proffered by the panel majority as to how this
    
    Court   has   appellate    jurisdiction       is   simple     --   perhaps     even
    
    deceptively     simple.    It    postulates    that    the    decision    of    the
    
    
                                           -30-
                                            30
    district court to deny summary judgment because “a genuine issue of
    
    material fact exists” involves two fundamental decisions by the
    
    district court: (1) there is sufficient conflict in the factual
    
    testimony that a jury could find that the force used by Trooper
    
    Barnhart was excessive, or, that the force used by Trooper Barnhart
    
    was reasonable; and (2) the issue of whether the force used was
    
    excessive or unreasonable is a material issue in the case.              The
    
    first of these issues is obviously factual and the second issue is
    
    essentially     legal   in   nature.      Therefore,   according   to   the
    
    majority’s expanded theory, when the district court ruled that “a
    
    genuine issue of material fact exists,” it necessarily made a
    
    “legal” ruling which, under the majority’s analysis of Johnson and
    
    Behrens, authorizes us to exercise appellate jurisdiction.
    
         I acknowledge that this theory is simple, but in my view it is
    
    simply wrong.
    
         The panel majority’s use of the genuineness-or-materiality
    
    distinction is simply not a useful theory of appealability.             The
    
    trouble is that the analysis makes every denial of summary judgment
    
    appealable.     Such an interpretation of Behrens entirely swallows
    
    the rule in Johnson, and is therefore unacceptable.
    
         When ruling on a motion for summary judgment, a district court
    
    must consider the materiality of the factual disputes before the
    
    court.   See FED. R. CIV. P. 56(c).    If the district court concludes
    
    that the only genuinely disputed facts are not material, the
    
    district court would grant summary judgment, and that would be an
    
    appealable final decision.        But what happens when a motion for
    
    
                                       -31-
                                        31
    summary judgment is denied?         According to the panel majority,
    
    Behrens established that “an appellate court is free to review a
    
    district court’s determination that the issues of fact in question
    
    are material.”     Order on Reh’g, supra, at 4.       If that is the case,
    
    every single denial of summary judgment is appealable because every
    
    single denial of summary judgment embodies a “determination that
    
    the issues of fact in question are material.”               See FED. R. CIV.
    
    P. 56(c).    To reiterate, if the issues of fact were not material,
    
    summary judgment would have been granted, not denied.
    
         Obviously this is not what Behrens intended.           The fact of the
    
    matter is that Behrens does not say that “an appellate court is
    
    free to review a district court’s determination that the issues of
    
    fact in question are material,” a cold fact belied by the panel
    
    majority’s failure to provide a citation to Behrens or any other
    
    case to support this assertion.       See Order on Reh’g, supra, at 4.
    
    Quite to the contrary of the panel majority’s view, Behrens does
    
    not give the courts of appeals carte blanche to investigate whether
    
    or not the fact issues that precluded a grant of summary judgment
    
    were material.     What Behrens does say is that “summary judgment
    
    determinations     are   appealable    when   they    resolve    a   dispute
    
    concerning an ‘abstract issu[e] of law’ relating to qualified
    
    immunity    --   typically,   the   issue   whether   the    federal   right
    
    allegedly infringed was ‘clearly established.’”         Behrens, 516 U.S.
    
    at 313, 116 S. Ct. at 842 (emphasis and alterations in original,
    
    internal citations omitted).          The reference to the appealable
    
    “abstract issu[e] of law” is an attributed quote from Johnson, an
    
    
                                        -32-
                                         32
    opinion which makes unmistakably clear that the separability of the
    
    issue is an indispensable prerequisite to interlocutory appeal.
    
    See Johnson, 515 U.S. at 310-11, 115 S. Ct. at 2155.
    
         Thus, as fully discussed supra, the panel majority’s Johnson-
    
    swallowing interpretation of Behrens does not withstand scrutiny.
    
    No Supreme Court cases have been cited to support the primacy of
    
    the genuineness-materiality distinction. That is because there are
    
    none.     The proper distinction as explained in both Johnson and
    
    Behrens     is    between      appealable      legal     determinations       and
    
    nonappealable determinations of evidence sufficiency.             The partial
    
    congruence that exists because genuineness relates to factual
    
    disputes while materiality relates to the legal significance of
    
    facts does not supplant the controlling dichotomy, which is between
    
    law-based decisions and fact-based decisions.             Moreover, the fact
    
    that there is a dispute about materiality tells us absolutely
    
    nothing about the separability of that legal dispute, which was the
    
    key factor in the Johnson Court’s determination that the district
    
    court’s resolutions about the sufficiency of the evidence for the
    
    purposes of qualified immunity are inseparable from the merits and
    
    therefore are not subject to interlocutory appeal. See id. at 313-
    
    18, 115    S.    Ct.   at   2156-58.     The   Supreme   Court   has   made   it
    
    abundantly clear that the appropriate focus in determining our
    
    appellate jurisdiction in interlocutory qualified-immunity appeals
    
    is the “appropriate interpretation of § 1291.” Johnson v. Fankell,
    
    
    117 S. Ct. 1800
    , 1807 (1997).            Genuineness and materiality are
    
    merely incidental; they are not a controlling part of that picture.
    
    
                                           -33-
                                            33
         Instead of trying to understand the nuances that differentiate
    
    Johnson and Behrens, the panel majority’s approach simply seeks to
    
    articulate a theory to justify jurisdiction.    Their approach, as
    
    explained in the new opinion on denial of rehearing, ensures that
    
    unless the district court satisfies an undefined and therefore
    
    wholly arbitrary standard of specificity,14 there will always be
    
    grounds for the appellate court to conduct a roving review of the
    
    record to investigate possible grounds for appellate jurisdiction.
    
    And, once that step has been taken, the grounds for exercising
    
    appellate jurisdiction can be easily manufactured.15    The majority
    
         14
              I pause here to note not only that the district court
    stated the grounds for denying summary judgment with all due
    specificity for the purposes of our determining appellate
    jurisdiction, but also that the panel majority knew full well what
    factual disputes led the district court to this decision.
    
         The district court’s Memorandum and Order stated that the
    court was denying Trooper Barnhart’s motion for summary judgment
    because it found “that issues of material fact exist which preclude
    summary judgment.” The court further stated:
    
                        Among these factual disputes are
                        what information Trooper Barnhart
                        possessed immediately prior to and
                        at the moment he fired the three
                        shots at the fleeing suspect and
                        whether Officer Barnhart had a
                        reasonable belief of danger from the
                        fleeing suspect which would justify
                        the use of deadly force in self-
                        defense.
    
    The majority actually contends that this statement “lacked
    sufficient specificity to permit us to determine whether we had
    jurisdiction over Barnhart’s appeal.” Order on Reh’g, supra, at 7.
         15
              This very case is a beautiful example.       The majority
    states in amazingly conclusory fashion:
    
                        [B]ecause     we    determined    that
                        Barnhart’s    version of the     facts
    
                                     -34-
                                      34
    transforms Behrens’s reference to a “cumbersome review of the
    
    record” into an invitation to review de novo the record in all
    
    interlocutory qualified-immunity appeals.       This is a transparent
    
    device for creating appellate jurisdiction at the discretion of the
    
    appellate court, and it is entirely inconsistent with the reasons
    
    the Supreme Court gave for its decisions in Johnson and Behrens.
    
    
    
                                     III.
    
         Finally, I must register my fundamental disagreement with the
    
    panel majority’s general approach to implementing the policies
    
    which support qualified immunity.       I support the application of
    
    those important and necessary policies to the extent that we
    
    maintain fidelity to the numerous Supreme Court opinions on the
    
    subject. I cannot support, however, our Court’s steady development
    
    of a reflexive habit of substituting appellate judgment for that of
    
    the district   courts   on   interlocutory   matters   in   the   name   of
    
    protecting public officials from the burdens of litigation. As the
    
    Supreme Court has made abundantly plain, qualified immunity in and
    
    
    
                        mirrored the version of the facts
                        that we determined the district
                        court likely assumed, we concluded
                        that    Barnhart     was     properly
                        challenging the materiality of the
                        factual issues the district court
                        believed in dispute and that we
                        therefore   possessed    jurisdiction
                        over this appeal.
    
    Id. at 8.   Considering the fact that the district court denied
    summary judgment, the majority’s statement that “that Barnhart’s
    version of the facts mirrored the version of the facts that we
    determined the district court likely assumed” is simply incredible.
    
                                     -35-
                                      35
    of itself is a substantial concession to the needs of faithful and
    
    efficient execution of public duties.       It is not, therefore,
    
    necessary or appropriate to contort ancillary legal doctrines (such
    
    as the original panel opinion’s misapplication of the collateral-
    
    order doctrine) for the purpose of terminating litigation early
    
    when, in the judgment of the district court, genuine factual issues
    
    remain that merit further consideration.
    
    
    
    A.   Qualified immunity is an important policy goal which already
         embodies substantial deference to public officials.
    
         The Supreme Court has recently revisited and reaffirmed the
    
    policy goals which undergird the doctrine of qualified immunity.
    
    The first of these goals is “a strong public interest in protecting
    
    public officials from the costs associated with the defense of
    
    damages actions.”   Crawford-El, 118 S. Ct. at 1592-93; see Harlow,
    
    457 U.S. at 814, 102 S. Ct. at 2736.   In addition, we are concerned
    
    that legal process not be used to manipulate public officials
    
    through “allegations of subjective motivation [which] might have
    
    been used to shield baseless lawsuits from summary judgment,” so we
    
    apply an objective standard based on the state of the law at the
    
    time of the alleged conduct Crawford-El, 118 S. Ct. at 1593; see
    
    Harlow, 457 U.S. at 817-18, 102 S. Ct. at 2737-38.    Last, we seek
    
    to avoid “the unfairness of imposing liability on a defendant who
    
    ‘could not reasonably be expected to anticipate subsequent legal
    
    developments, nor . . . fairly be said to “know” that the law
    
    forbade conduct not previously identified as unlawful.’” Crawford-
    
    El, 118 S. Ct. at 1593 (quoting Harlow, 457 U.S. at 818, 102 S. Ct.
    
                                   -36-
                                    36
    at 2738); see Scheuer v. Rhodes, 
    416 U.S. 232
    , 239-40, 
    94 S. Ct. 1683
    , 1688 (1974).
    
         The parameters of the qualified-immunity defense have been
    
    carefully laid out by the Supreme Court, and they represent the
    
    full extent to which a court accommodate the above-mentioned policy
    
    interests.   See, e.g., Imbler v. Pachtman, 
    424 U.S. 409
    , 421, 96 S.
    
    Ct. 984, 990 (1976).
    
    
    
    B.   The substantial policy interest in adjudicating Colston’s
         claims cannot be ignored.
    
         Despite our real concern about the policy interests protected
    
    by qualified immunity, we cannot forget that our fellow citizens
    
    also have a legitimate interest in vindicating their rights as
    
    provided by law.     Congress has provided by statute that:
    
                     Every person who, under color of any statute,
                ordinance, regulation, custom, or usage, of any
                State . . . subjects, or causes to be subjected,
                any citizen of the United States or other person
                within the jurisdiction thereof to the deprivation
                of any rights, privileges, or immunities secured by
                the Constitution and laws, shall be liable to the
                party injured in an action at law, suit in equity,
                or other proper proceeding for redress . . . .
    
    42 U.S.C. § 1983.      Qualified immunity is intended to extinguish
    
    some legitimate claims arising under § 1983 which are frivolous or
    
    ambiguous    in   nature,   and   that   is   a   recognized   and   accepted
    
    consequence of applying the doctrine.             But in a case where the
    
    plaintiff has alleged a violation of his then-clearly-established
    
    constitutional rights and claims serious and demonstrable damages
    
    from the official’s conduct which was not objectively reasonable,
    
    the plaintiff should be entitled to proceed to trial so long as the
    
                                        -37-
                                         37
    allegations are sufficiently supported by evidence to survive a
    
    motion for summary judgment.       “[I]t is not unfair to hold liable
    
    the official who knows or should know he is acting outside the
    
    law.”     Butz v. Economou, 
    438 U.S. 478
    , 506, 
    98 S. Ct. 2894
    , 2911
    
    (1978).
    
    
    
    C.   The majority erred by tipping the scales of justice in Trooper
         Barnhart’s favor.
    
         The primary lesson of the recently decided case of Crawford-El
    
    v. Britton, 
    118 S. Ct. 1584
     (1998), is that the courts of appeals
    
    should not go beyond the basic qualified-immunity framework to
    
    deprive plaintiffs of their "day in court."          Crawford-El contains
    
    a number of observations which should inform the way we proceed in
    
    a case like this one.       For example, the Supreme Court noted that
    
    the “holding in Harlow, which related only to the scope of an
    
    affirmative defense, provides no support for making any change in
    
    the nature of the plaintiff’s burden of proving a constitutional
    
    violation.”    Crawford-El, 118 S. Ct. at 1592.      The Supreme Court is
    
    telling us that the policies that give rise to the affirmative
    
    defense of qualified immunity do not stretch so far as to justify
    
    stacking    the   deck   against   the   substance   of   the   plaintiff’s
    
    underlying claims.       The panel majority’s erroneous interpretation
    
    in this litigation in Trooper Barnhart’s favor are functionally
    
    indistinguishable from the D.C. Circuit’s now-disapproved practice
    
    of requiring “‘clear and convincing evidence on the state-of-mind
    
    issue at summary judgment.’”       Id. at 1589 (quoting Crawford-El v.
    
    Britton, 
    93 F.3d 813
    , 815 (D.C. Cir. 1996) (en banc)).
    
                                        -38-
                                         38
          The Supreme Court also strained to point out that there is no
    
    reason for the courts of appeals to "deal under the table" in order
    
    to   impede    lawsuits   against   public   officials.   The   Court   has
    
    endorsed “firm application of the Federal Rules of Civil Procedure”
    
    which “may lead to the prompt disposition of insubstantial claims,”
    
    id., 118 S. Ct. at 1596 (internal quotation marks omitted), and
    
    went to great lengths to detail procedural barriers that the
    
    district courts should use to dispose of insubstantial claims, see
    
    id. at 1596-98.
    
          Perhaps most importantly, the Court reiterated that a claim
    
    which may have merit should be heard unless the plaintiff fails to
    
    survive a fair application of qualified-immunity analysis.
    
                       [Qualified immunity’s] rationale of fairness
                  does not provide any justification for the
                  imposition of special burdens on plaintiffs who
                  allege misconduct that was plainly unlawful when it
                  occurred.   While there is obvious unfairness in
                  imposing liability -- indeed, even in compelling
                  the defendant to bear the burdens of discovery and
                  trial -- for engaging in conduct that was
                  objectively reasonable when it occurred, no such
                  unfairness can be attributed to holding one
                  accountable for actions that she knew, or should
                  have known, violated the constitutional rights of
                  the plaintiff. Harlow itself said as much: “If the
                  law was clearly established, the immunity defense
                  ordinarily   should   fail,  since   a   reasonably
                  competent public official should know the law
                  governing his conduct.” Id., at 818-819; see also
                  Butz, 438 U.S. at 506 (“[I]t is not unfair to hold
                  liable the official who knows or should know he is
                  acting outside the law . . . .”).
    
    Crawford-El, 118 S. Ct. at 1593.
    
          If this case had proceeded as usual and gone to trial, it is
    
    possible that Colston might left the courthouse with empty pockets.
    
    
    
                                        -39-
                                         39
    He was, however, entitled under the evidence available at summary
    
    judgment to step to the bar and take his fair chances.
    
         Colston’s claim was not insubstantial.             The right which he
    
    alleges was violated -- the right to be free from police brutality
    
    -- is one of our civil rights which is of most vital concern to
    
    significant portions of our population.          The alleged violation of
    
    his rights resulted in serious and permanent injuries. Colston has
    
    alleged facts which would support a jury finding that Trooper
    
    Barnhart improperly used deadly force to accomplish his seizure.
    
    The law, as clarified in Crawford-El, is plain; our Court should
    
    not have intervened when Trooper Barnhart’s motion for summary
    
    judgment    was   denied   on   the    basis   that   the   facts   were   not
    
    sufficiently established to justify summary judgment.
    
    
    
                                          IV.
    
         For the foregoing reasons, and with all due respect to my
    
    colleagues, I dissent from the panel majority’s additional opinion
    
    on rehearing, and I dissent from our Court’s denial of rehearing en
    
    banc.
    
    
    
    ENDRECORD
    
    
    
    
                                          -40-
                                           40
    BENAVIDES, Circuit Judge, with whom POLITZ, Chief Judge, STEWART and PARKER, Circuit
    
    Judges, dissenting from the denial of rehearing en banc:
    
            The central issue in this qualified immunity case is the important question of the proper scope
    
    of a court of appeals’ review of the summary judgment record in a case where a district court has
    
    failed to identify the genuine issues of material fact precluding summary judgment. The Colston
    
    majority asserts that a court of appeals may review de novo a district court’s determination that the
    
    plaintiff’s evidence creates a genuine factual dispute in order to preserve a public official’s right to
    
    an immediate appeal on the question of qualified immunity. After substituting its genuineness analysis
    
    for that of the district court, the majority concludes that Barnhart is entitled to qualified immunity
    
    because his effectively uncontested subjective account of the events preceding the shooting indicates
    
    that he acted with objective legal reasonableness when he shot Colston twice in the back.
    
            In contrast, I believe that the majority’s de novo review of the sufficiency of Colston’s
    
    evidence conflicts with the Supreme Court’s decision in Johnson v. Jones, 
    115 S. Ct. 2151
     (1995),
    
    and the collateral order doctrine. The majority, moreover, could have respected the limits on this
    
    court’s jurisdiction over interlocutory appeals and protected Barnhart’s right to an immediate appeal
    
    by deciding the question of qualified immunity on the basis of the version of the facts contained in
    
    Colston’s response to Barnhart’s motion for summary judgment or by remanding the case to the
    
    district court for a complete statement of the genuine issues of material fact precluding summary
    
    judgment. Had the majority adopted either of these alternatives to an independent review of the
    
    summary judgment record, it would not have reversed the district court. I, therefore, respectfully
    
    dissent from the denial of rehearing en banc.
    
                                                        I.
    
            In its explanation of the basis for the court’s jurisdiction over Barnhart’s interlocutory appeal,
    
    the Colston majority correctly interprets the Supreme Court’s decisions in Jones and Behrens v.
    
    Pelletier, 
    116 S. Ct. 834
     (1996), to permit this court to exercise jurisdiction over an interlocutory
    
    appeal contending that the factual disput es identified by a district court in its order denying a
    
    
    g:\opin\96-40151.dis
    defendant’s motion for summary judgment on the basis of qualified immunity are immaterial to a
    
    determination of whether a plaintiff’s constitutional rights were violated or whether a defendant’s
    
    conduct was objectively reasonable in light of clearly established law.16 In other words, we may
    
    consider on interlocutory appeal a defendant’s claim that when the facts, both disputed and
    
    undisputed, are viewed in the light most favorable to the plaintiff, they demonstrate that the defendant
    
    is entitled to qualified immunity. See Hart v. O’Brien, 
    127 F.3d 424
    , 455 (5th Cir. 1997) (Benavides,
    
    J., dissenting). The majority also rightly recognizes that a court of appeals must adopt the district
    
    court’s articulation of the genuinely disputed facts when determining whether these disputes are
    
    material to a finding of qualified immunity.17 Finally, the majority properly concludes that when a
    
    district court has “not identif[ied] those factual issues as to which it believes genuine disputes remain”
    
    and a defendant is claiming on interlocutory appeal that the factual disputes in the case are immaterial
    
    to a finding of qualified immunity, Jones and Behrens authorize us to review the summary judgment
    
    record in order to identify “what issues of fact the district court probably considered genuine” when
    
    denying the defendant’s motion for summary judgment so that we may in turn determine if those
    
    disputes are material. This much is clear from the Supreme Court’s statement that under these
    
    
    
            16
                See Behrens, 116 S. Ct. at 842 (“Johnson permits [a defendant] to claim on appeal that
    [the factual disputes identified by the district court are immaterial because] all of the conduct which
    the District Court deemed sufficiently supported for purposes of summary judgment met the Harlow
    standard of `objective legal reasonableness.’”); Jones, 115 S. Ct. at 2159 (holding that a court of
    appeals may review on interlocutory appeal a district court’s determination “that a given set of facts
    violates clearly established law”); Collins v. Jordan, 
    110 F.3d 1363
    , 1370 (9th Cir. 1997) (“An
    appellate court still has jurisdiction to consider a defendant’s assertion that the dispute of fact is not
    material. Such a claim is of a different character from a claim that the [district] court’s findings are
    not supported by the record. The claim of lack of materiality is solely one of law, and therefore is
    reviewable on an interlocutory basis.”) (citations omitted); Dickerson v. McClellan, 
    101 F.3d 1151
    ,
    1157 (6th Cir. 1996) (noting that a court of appeals may “exercise interlocutory jurisdiction” over
    an appeal from a denial of summary judgment in a qualified immunity case when “the factual disputes”
    identified by the district court are “immaterial”).
      17
         See Behrens, 116 S. Ct. at 842 (noting that a court of appeals considers “the conduct which the
    District Court deemed sufficiently supported for purposes of summary judgment” when deciding
    materiality); Jones, 115 S. Ct. at 2159 (“When faced with the argument that the district court
    mistakenly identified clearly established law, the court of appeals can simply take, as given, the facts
    that the district court assumed when it denied summary judgment.”).
    
    g:\opin\96-40151.dis                               42
    circumstances, a court of appeals “‘may have to undertake a cumbersome review of the record to
    
    determine what facts the district court, in the light most favorable to the nonmoving party, likely
    
    assumed’” to be sufficiently supported when it denied summary judgment. Behrens, 116 S. Ct. at 842
    
    (quoting Jones, 115 S. Ct. at 2159).
    
                                                      II.
    
            The Colston majority and I part company, however, when it describes the manner in which
    
    we are to review the summary judgment record when identifying the factual disputes likely viewed
    
    as genuine by the district court. According to the majority, Behrens permits a court of appeals to “go
    
    behind” a district court’s determination that genuine issues of material fact preclude summary
    
    judgment when we are evaluating whether t he unstated facts that the court “likely assumed” are
    
    material to a finding of qualified immunity. Although the Colston majority is careful not to explain
    
    what it means to “go behind” a district court’s determination and “conduct an analysis of the summary
    
    judgment record,” its opinion illustrates that a court of appeals may disregard its obligation to
    
    reco nstruct the version of the facts that best explains the district court’s decision to deny t e
                                                                                                   h
    
    defendant’s motion for summary judgment when going behind that determination. In fact, the
    
    majority’s decision to “adopt Barnhart’s version of the facts” demonstrates that going behind a
    
    district court’s determination entails conducting a de novo review of the district court’s finding that
    
    the plaintiff’s evidence was sufficient to create a genuine issue of material fact. The majority’s
    
    conception of the scope of our review of the summary judgment record in a case like Colston,
    
    however, cannot be reconciled with the Supreme Court’s decision in Jones or the collateral order
    
    doctrine.
    
            The summary judgment record in Colston indicates that Barnhart and Colston provided
    
    plausible and conflicting accounts of the tenor and significance of the events captured on film by the
    
    camera mounted in Barnhart’s patrol car. According to Barnhart, for example, Colston’s effort to
    
    stand up in the face of a command to get on the ground was an aggressive and threatening act.
    
    Colston, on the other hand, draws attention to the fact that he was a young black man ordered to the
    
    
    g:\opin\96-40151.dis                              43
    ground by a white police officer in connection with a traffic stop that occurred at night on an empty
    
    highway. Colston explains that he lifted his leg in preparation to flee because he was noticeably
    
    frightened by the officers and what he perceived to be their impending use of force.
    
            The parties also offer conflicting accounts of the most critical point in the encounter: The
    
    moment when Barnhart fired two shots into Col ston’s back. Barnhart contends that it was not
    
    feasible for him to warn Colston before firing these shots because he “had to immediately decide
    
    whether to shoot.” Id. at 100. According to Barnhart’s motion for summary judgment, he decided
    
    to shoot because he was “dazed and disoriented” and he “perceived [Colston] to be in the process
    
    of attacking him” or “hovering above” him.
    
            The videotape, however, clearly shows that Colston was not in the process of attacking either
    
    officer at the time he was shot twice in the back. Instead, as being shot in the back indicates, Colston
    
    was running away. Colston contends that his observable demeanor indicated that he was in fact
    
    fleeing at this point because he had been visibly frightened, had not placed himself in a position to
    
    strike the officers after knocking them down, and had not attempted to disarm or strike the officers
    
    while they were lying “dazed,” “limp,” and “motionless” on the ground. See Colston v. Barnhart,
    
    
    130 F.3d 96
    , 99 (5th Cir. 1997). As for Barnhart’s suggestion that his dazed and disoriented state
    
    contributed to his misperception that Colston was moving toward him, the record indicates that he
    
    was nonetheless able to see Colston clearly enough to get “a good target acquisition” before firing.
    
    Further, as Judge DeMoss stated in his dissent from the panel opinion, Barnhart’s account of the
    
    extent of his incapacity may be more hyperbole than fact. See id. at 103 (DeMoss, J., dissenting).
    
    Thus, to justify Barnhart’s decision to shoot Colston without warning on the basis of his possibly
    
    unreasonable assumption that Colston was advancing upon him, the majority puts forth an explanation
    
    of the shooting that Barnhart did not even raise in his motion for summary judgment: That when
    
    Barnhart fired the final two shots, Colston was running toward the “patrol car, where Barnhart’s
    
    shotgun was located” and was, presumably, accessible. Id. Of course, Barnhart did not raise this
    
    
    
    
    g:\opin\96-40151.dis                              44
    justification for the shooting because it completely contradicts his admission in his motion for
    
    summary judgment that he shot Colston because he perceived Colston to be moving toward him.
    
            Even if Barnhart did in fact perceive Colston to be heading for the patrol car, there is no
    
    evidence that Colston knew of the shotgun. In fact, we do not know whether the shotgun was loaded
    
    or how readily Colston could have retrieved it from the police cruiser. Moreover, the shotgun could
    
    not have been visible to Colston from the front of the patrol car because it was dark and the car lights
    
    were shining in his eyes. Further, Colston had proceeded only “two steps . . . toward Barnhart’s
    
    patrol car” when he was shot. Id. Under these circumstances, Colston suggests that Barnhart, even
    
    if he was in fact concerned about Colston’s access to the shotgun, had ample time to issue a warning
    
    before firing the last two shots.
    
            Notwithstanding these conflicting versions of the events preceding shooting, the majority
    
    states that it adopted Barnhart’s “version of the facts” because they “mirrored the version of the facts
    
    that we determined the district court likely assumed” when denying Barnhart’s motion for summary
    
    judgment. Why the district court would have adopted a version of the events not argued by Barnhart,
    
    only to deny his motion for summary judgment, is unclear.         More importantly, there can be no
    
    question that when the district court denied Barnhart ’s motion for summary judgment because
    
    “genuine issues of fact [exist] as to `what information Trooper Barnhart possessed immediately prior
    
    to and at the moment he fired the three shots at [Colston],’” it necessarily found that Colston’s
    
    version of the encounter conflicted with Barnhart’s and that Colston’s account was sufficiently
    
    supported by the summary judgment evidence. Thus, by ignoring Colston’s account of the encounter
    
    and replacing it with the version of the events preceding the shooting that is most favorable to
    
    Barnhart’s qualified immunity claim, the majority, contrary to the Supreme Court’s instruction in
    
    Jones, in fact rejected the version of the “facts the district court, in the light most favorable to the
    
    nonmoving party, likely assumed” when denying Barnhart’s motion for summary judgment. 115 S.
    
    Ct. at 2159.
    
    
    
    
    g:\opin\96-40151.dis                              45
            Moreover, the process by which the majority inexplicably concluded that the district court
    
    adopted Barnhart’s version of the facts when denying his motion for summary judgment also cannot
    
    be squared with the Supreme Court’s decision in Jones or the collateral order doctrine. In Jones, the
    
    Court unequivocally held that “a defendant, entitled to invoke a qualified-immunity defense, may not
    
    appeal a district court’s summary judgment order insofar as that order determines whether or not the
    
    pretrial record sets forth a ‘genuine’ issue of fact for trial” because the collateral order doctrine
    
    precludes jurisdiction over an interlocutory appeal raising a question, such as “evidence sufficiency”
    
    that is not “significantly different from the fact-related legal issues that likely underlie [a] plaintiff’s
    
    claim on the merits.” Id. at 2157, 2159. Nonetheless, in order to adopt the version of the events
    
    preceding the shooting that the majority believes Barnhart should have identified as the factual basis
    
    for his materiality challenge, it had to go beyond the version of events contained in Barnhart’s motion
    
    for summary judgment, substitute its own genuineness analysis for that of the district court, and
    
    conclude that Colston produced insufficient evidence calling into question the objective
    
    reasonableness of Barnhart’s decision to shoot him twice in the back. A district court’s failure to
    
    identify the genuinely disputed facts, however, does not transform the question of evidence
    
    sufficiency into an issue that is separable from the merits of a plaintiff’s claim and that is within this
    
    court’s jurisdiction on interlocutory appeal.
    
            According to the majority, this conflict between its de novo review of the sufficiency of
    
    Colston’s evidence and the Court’s decision in Jones and collateral order doctrine is authorized by
    
    the Supreme Court’s decision in Behrens. The Behrens opinion, however, does not purport to create
    
    an exception to the collateral order doctrine’s separability requirement. Likewise, as the Colston
    
    majority recognizes, the opinion in Behrens does not expressly state that a court of appeals may
    
    review a district court’s genuineness determination and substitute its view of the summary judgment
    
    evidence for that of the district court in a case where the district court has “not identif[ied] the
    
    particular charged conduct that it deemed adequately supported for the purposes of summary
    
    judgment.” Instead, the Court in Behrens simply reiterated its position in Jones that under these
    
    
    g:\opin\96-40151.dis                                46
    circumstances, a court of appeals “`may have to undertake a cumbersome review of the record to
    
    determine what facts the district court, in the light most favorable to the nonmoving party, likely
    
    assumed.’” Behrens, 116 S. Ct. at 842 (quoting Jones, 115 S. Ct. at 2159). The majority’s
    
    interpretation of Behrens, therefore, is ultimately predicated on its view that a court of appeals may
    
    review de novo a district court’s genuineness determination on interlocutory appeal because there is
    
    no better way “to ensure that the defendant’s right to an immediate appeal on the issue of materiality
    
    is not defeated solely on account of the district court’s failure to articulate its reasons for denying
    
    summary judgment.”
    
            Like the majority’s independent review of the sufficiency of Colston’s evidence, this policy
    
    argument also conflicts with the Supreme Court’s decision in Jones. In that case, the petitioner
    
    claimed that a court of appeals should be permitted to review the sufficiency of a plaintiff’s evidence
    
    on interlocutory appeal because “the need to protect officials against the burdens of further pretrial
    
    proceedings and trial justifies a relaxation of the separability requirement.” Jones, 115 S. Ct. at 2157
    
    (quotations omitted). The Supreme Court, however, rejected this claim. Emphasizing jurisdiction
    
    over expedience, cf. Steel Co. v. Citizens for a Better Env’t, 
    118 S. Ct. 1003
    , 1011-16 (1998)
    
    (holding that a court of appeals may not assume that a plaintiff has standing in order to reach the
    
    merits of that plaintiff’s claim), the Court stated that allowing a court of appeals to review the
    
    sufficiency of a plaintiff’s evidence on interlocutory appeal “would more than relax the [collateral
    
    order doctrine’s] separability requirement—it would in many cases simply abandon it.” Jones, 115
    
    S. Ct. at 2157. Thus, the majority’s policy rationale for its interpretation of Behrens sharpens, rather
    
    than alleviates, the conflict between its de novo review of the district court’s genuineness
    
    determination and the Supreme Court’s holding in Jones.
    
                                                      III.
    
            The majority’s policy rationale for its de novo review of the sufficiency of Colston’s evidence
    
    also reflects an incorrect underst anding of the proper balance between the policies underlying
    
    qualified immunity and the limits on our jurisdiction over interlocutory appeals. Contrary to the
    
    
    g:\opin\96-40151.dis                              47
    majority’s suggestion, a de novo review of a district court’s genuineness determination was not
    
    necessary to ensure Barnhart’s right to an immediate appeal on the question of qualified immunity.
    
    Instead, the majority could have overcome the district court’s incomplete order denying summary
    
    judgment and fully protected Barnhart’s right to an interlocutory appeal by adopting of the version
    
    of events contained in Colston’s response to Barnhart’s motion for summary judgment or remanding
    
    the case to the district court for a complete statement of the genuine issues of material fact. Each of
    
    these alternatives to the handling of this appeal, moreover, would have been entirely consistent with
    
    the co llateral order doctrine and the language and analysis in Jones and Behrens. The majority,
    
    therefore, did not have to interpret Behrens as conflicting with the collateral order doctrine and the
    
    Court’s unanimous decision in Jones in order to properly dispose of this appeal.
    
            To exercise its jurisdict ion over an interlocutory appeal from an incomplete order denying
    
    summary judgment in a manner that is consistent with Jones and the collateral order doctrine, a court
    
    of appeals should “determine what facts the district court , in the light most favorable to the
    
    nonmoving party, likely assumed” when denying a defendant’s motion for summary judgment by first
    
    comparing that defendant’s motion for summary judgment and the plaintiff’s response in order to
    
    identify the disputed issues of fact.18 By assuming that the plaintiff’s version of these factual disputes
    
    is sufficiently supported by the summary judgment evidence, a court of appeals best complies with
    
    its obligation under Jones to adopt the version of the facts, “in the light most favorable to the
    
    nonmoving party,” that the district court most “likely assumed” when it denied the defendant’s
    
    motion for summary judgment. Jones, 115 S. Ct. at 2159. Moreover, by utilizing the plaintiff’s
    
       18
          As the Supreme Court has suggested, our review of the summary judgment record may become
    “cumbersome” if a defendant’s motion for summary judgment and the plaintiff’s response do not
    sufficiently highlight the factual disputes in a case. See Jones, 115 S. Ct. at 2159. In that event, a
    court of appeals may be forced to examine the parties’ exhibits, the complaint, and the answer in
    order to identify the plaintiff’s version of the factual disputes that it will assume to be genuine for the
    purposes of its materiality analysis. Of course, this “detailed evidence-based review of the record,”
    id., increases the risk that the collateral order doctrine’s separability requirement will be relaxed, if
    not abandoned, in an effort to hasten the resolution of a qualified immunity case. A remand to the
    district court for a complete statement of the genuine issues of material fact precluding summary
    judgment, however, would eliminate this risk of relaxing or abandoning the separability requirement
    in such a case without sacrificing a public official’s right to an immediate appeal. See infra.
    
    g:\opin\96-40151.dis                                48
    version of the facts when determining whether the factual disputes between the parties are material
    
    to a finding of qualified immunity, a court of appeals preserves the collateral order doctrine’s
    
    separability requirement and the defendant’s right to an interlocutory appeal on the issue of qualified
    
    immunity.19
    
            Had the majority in Colston properly restricted its review of the summary judgment record,
    
    it would have determined that the factual dispute as to whether Colston was running away or whether
    
    he posed an immediate threat of death or serious bodily harm to the officers at the time he was shot
    
    twice in the back was material to a finding that Barnhart was entitled to qualified immunity.20 Once
    
    the version of the events preceding the shooting contained in Colston’s response to Barnhart’s motion
    
    for summary judgment is assumed to be sufficiently supported by the evidence, it is clear that the
    
    district court correctly determined that Barnhart was not entitled to summary judgment based on the
    
    objective reasonableness of his actions. Under Colston’s characterization of the shooting, a
    
    reasonable police officer in Barnhart’s position at the time of the shooting would not have shot
    
    Colston twice in the back without warning because that officer would have perceived that Colston
    
    was running away. Moreover, even if the majority correctly credits Barnhart with the unclaimed
    
    subjective intent of shooting Colston because he perceived Colston to be running toward the patrol
    
    car, a reasonable officer would not have shot Colston in the back until Colston had taken additional
    
    action indicating an intent to gain access to the shotgun in the police cruiser in the face of a warning
    
    to move away from the car. The factual disputes between Colston and Barnhart, therefore, are
    
    material to a finding of qualified immunity and the Colston majority should have affirmed the district
    
    
      19
         Cf. Jones, 115 S. Ct. at 2159 (noting that a court of appeals avoids entangling itself in the merits
    of a plaintiff’s case and causing a corresponding relaxation of the separability requirement by “simply
    tak[ing], as given, the facts that the district court assumed when it denied summary judgment”);
    Hammond v. Kunard, No. 96-2343, 
    1998 WL 305187
    , at *3 (7th Cir. June 11, 1998) (“[In] a motion
    to dismiss, we assume that all of the facts of the complaint are true, rendering the applicability of
    qualified . . . immunity a purely legal question over which we have jurisdiction.”).
      20
         Of course, had the majority adopted these principles, it would not have reviewed the sufficiency
    of Colston’s evidence or inexplicably concluded that the district court likely assumed the version of
    the facts most favorable to Barnhart when denying his motion for summary judgment.
    
    g:\opin\96-40151.dis                               49
    court’s denial of Barnhart’s motion for summary judgment. Cf. Dickerson, 101 F.2d at 1164
    
    (dismissing a defendant’s interlocutory appeal for lack of jurisdiction after determining that the factual
    
    disputes between the parties were material to a finding that the defendant was entitled to qualified
    
    immunity on the plaintiff’s excessive force claim); Clash v. Beatty, 
    77 F.3d 1045
    , 1049 (7th Cir.
    
    1996) (dismissing a defendant’s interlocutory appeal for lack of jurisdiction when the record was
    
    insufficiently developed for the court of appeals to determine whether the disputes between the
    
    parties were material to a finding that the defendant was entitled to qualified immunity on the
    
    plaintiff’s excessive force claim).21
    
             In the alternative, even though a cumbersome review of the record is not necessary to identify
    
    the version of the facts supporting the district court’s decision to deny Barnhart’s motion for
    
    summary judgment, the majority should have remanded this case to the district court for a sufficiently
    
    specific statement of the genuine issues of material fact precluding summary judgment.22 In fact, this
    
        21
           This is no t to say that Barnhart may not ultimately prevail on his claim that he acted with
    objective legal reasonableness under the circumstances. Colston’s version of the encounter, however,
    indicates that the determination of whether Barnhart acted with objective legal reasonableness belongs
    to a jury. When confronted with the testimony of both Barnhart and Colston, a jury may ultimately
    conclude that a reasonable officer, when standing in Barnhart’s shoes, would have also shot Colston
    twice in the back without warning. Cf. Snyder v. Trepagnier, No. 96-30935, 
    1998 WL 268280
    , at
    *7-9 (5th Cir. May 27, 1998) (affirming a jury verdict that awarded the defendant qualified immunity
    for his decision to shoot the plaintiff in the back after the district court had properly denied summary
    judgment on qualified immunity grounds because there was a genuine dispute of material fact as to
    whether the plaintiff had a gun or the defendant reasonably believed that he did).
       22
          Cf. Crutcher v. Kentucky, 
    883 F.2d 502
    , 503 (6th Cir. 1989) (“The district Court’s denial of
    Owens’ motion stated only that genuine issues of material fact remained for resolution at trial. . . .
    We vacate the District Court’s ruling on the qualified immunity issue and remand this case to the
    District Court so that it can state its reasons for concluding that there was no genuine dispute about
    any fact material to whether Owens violated clearly established constitutional rights.”); Poe v.
    Haydon, 
    853 F.2d 418
    , 426-27 (6th Cir. 1988) (“Although this court could conduct its own
    examination of the record and determine if there is a genuine dispute about any fact material to
    whether appellants violated any clearly established constitutional or statutory rights, we decline to
    do so.”); Whitt v. Smith, 
    832 F.2d 451
    , 453-54 (7th Cir. 1987) (“No particular factual issues were
    identified in the district court’s order . . . and [w]e will not attempt the factual analysis to determine
    whether qualified immunity is applicable at this stage of the proceedings. We therefore . . . remand
    the case to the district court.”); Green v. Carlson, 
    826 F.2d 647
    , 652 (7th Cir. 1987) (“The appellants
    contend that . . . this court should conduct its own examination of the record and decide . . . whether
    the appellants violated any clearly established constitutional or statutory rights. However, in light of
    the complexity of this case, and the district court’s finding that numerous [but unstated] disputed
    issues of fact remain, we
    
    g:\opin\96-40151.dis                               50
    approach might have struck an even better balance between the goals of qualified immunity and the
    
    limits on our jurisdiction over interlocutory appeals than a limited review of the parties’ competing
    
    summary judgment filings.23 A proper remand in this case would have protected Barnhart from any
    
    additional “burdens of litigation,” Mitchell v. Forsyth, 
    472 U.S. 511
    , 526 (1985), by staying the
    
    proceedings in the district court, if necessary, until that court had sufficiently identified the genuine
    
    issues of material fact precluding summary judgment and this court had reached a decision on the
    
    merits of Barnhart’s subsequent interlocutory appeal. In addition, this disposition would have
    
    precluded any potential relaxation of the separability requirement.
    
            Indeed, even if the majority correctly interprets Behrens to create an exception to Jones and
    
    the collateral order doctrine that authorizes a court of appeals to conduct a de novo review of the
    
    sufficiency of a plaintiff’s evidence simply because a district court has failed to identify the genuine
    
    issues of material fact precluding summary judgment,24 this case should have been remanded.25 There
    
    
    decline to reach the merits of the defendants’ qualified immunity claim. Instead, we remand the case
    for [additional] finding[s].”)
       23
         A remand in this case would also promote judicial economy. As the Supreme Court has noted,
    “considerations of delay, comparative expertise of trial and appellate courts, and wise use of judicial
    resources, argue in favor of limiting interlocutory appeals of ‘qualified immunity’ matters to cases
    presenting more abstract issues of law.” Jones, 115 S. Ct. at 2158. Every effort we make to identify
    a plaintiff’s version of the disputed issues of fact, ho wever, makes the qualified immunity
    determination less of a pure question of law. That a remand would entail additional district court
    action, moreover, does not undercut its usefulness in furthering judicial economy. Instead, it reflects
    the district court’s comparative advantage in identifying the version of the facts precluding a grant
    of summary judgment. Further, a rule requiring remands of interlocutory appeals from insufficiently
    specific orders denying summary judgment would promote judicial economy by encouraging district
    courts to identify completely the genuine issues of material fact precluding summary judgment.
       24
          In Jones, the Supreme Court stated that “a rule that occasionally requires a detailed evidence-
    based review of the record is still, from a practical point of view, more manageable that the rule that
    petitioners urge us to adopt,” i.e., allowing a court of appeals to review the sufficiency of the
    plaintiff’s evidence on interlocutory appeal. 115 S. Ct. at 2159. The Court
    then noted that the “petitioners’ approach would make that task not the exception, but the rule.” Id.
    When read in isolation, this language might suggest that the Court has crafted a narrow exception to
    the collateral order doctrine’s separability requirement. To adopt this reading of Jones, however,
    would conflict with the Court’s earlier statement in Jones that the policies justifying an interlocutory
    appeal on the purely legal question of qualified immunity do not authorize an abandonment of the
    separability requirement to permit an interlocutory appeal on the question of evidence sufficiency.
    Thus, this language from Jones is best understood as reflecting the Supreme Court’s recognition that
    a “cumbersome” review of the record increases the risk that a court of appeals will review the
    
    g:\opin\96-40151.dis                               51
    is simply no reason to relax or abandon the collateral order doctrine’s separability requirement when
    
    a remand will not deprive a defendant of the benefits of raising a qualified immunity defense.
    
                                                      IV.
    
              I respectfully dissent from the denial of rehearing en banc. The question of the proper scope
    
    of our review of the summary judgment record in an interlocutory appeal from an incomplete order
    
    denying summary judgment is one of considerable importance. Any answer we give must carefully
    
    balance the limited nature of our jurisdiction over interlocutory appeals with the policies underlying
    
    qualified immunity. For this reason alone, the majority’s decision in Colston deserves the attention
    
    of the full court. More importantly, the balance the majority has struck between these competing
    
    concerns conflicts unnecessarily with the Supreme Court’s decision in Jones. Thus, the court should
    
    have taken this case en banc and either affirmed the district court’s denial of summary judgment or
    
    remanded this case.
    
    
    
    
    sufficiency of a plaintiff’s evidence.
         25
           In the alternative, the majority should have affirmed the district court because Colston’s
    evidence was sufficient to create a genuine issue of material fact as to whether Barnhart should have
    perceived that Colston was running away at the time he was shot twice in the back.
    
    g:\opin\96-40151.dis                               52
    

Document Info

DocketNumber: 96-40634

Citation Numbers: 130 F.3d 96

Filed Date: 9/21/1998

Precedential Status: Precedential

Modified Date: 4/10/2017

Authorities (34)

Ginsberg 1985 Real Estate Partnership v. Cadle Co. , 39 F.3d 528 ( 1994 )

Hart v. O'Brien , 127 F.3d 424 ( 1997 )

Colston v. Barnhart , 130 F.3d 96 ( 1998 )

Cohen v. Beneficial Industrial Loan Corp. , 337 U.S. 541 ( 1949 )

Carroll v. United States , 354 U.S. 394 ( 1957 )

Scheuer v. Rhodes , 416 U.S. 232 ( 1974 )

Imbler v. Pachtman , 424 U.S. 409 ( 1976 )

Coopers & Lybrand v. Livesay , 437 U.S. 463 ( 1978 )

Butz v. Economou , 438 U.S. 478 ( 1978 )

Harlow v. Fitzgerald , 457 U.S. 800 ( 1982 )

Tennessee v. Garner , 471 U.S. 1 ( 1985 )

Mitchell v. Forsyth , 472 U.S. 511 ( 1985 )

Van Cauwenberghe v. Biard , 486 U.S. 517 ( 1988 )

Graham v. Connor , 490 U.S. 386 ( 1989 )

Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, ... , 506 U.S. 139 ( 1993 )

Johnson v. Jones , 515 U.S. 304 ( 1995 )

Behrens v. Pelletier , 516 U.S. 299 ( 1996 )

Johnson v. Fankell , 520 U.S. 911 ( 1997 )

Crawford-El v. Britton , 523 U.S. 574 ( 1998 )

maria-green-administratrix-of-the-estate-of-joseph-jones-jr-aka , 826 F.2d 647 ( 1987 )

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Cited By (17)

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melinda-petta-as-next-friend-of-nikki-petta-and-cavin-petta-minors-nikki , 133 F.3d 330 ( 1998 )

richard-hare-natural-father-and-next-friend-of-haley-hare-a-minor-richard , 135 F.3d 320 ( 1998 )

melinda-petta-as-next-friend-of-nikki-petta-and-cavin-petta-minors-nikki , 143 F.3d 895 ( 1998 )

lorenzo-colston-and-yolanda-michelle-colston-individually-and-as-next , 146 F.3d 282 ( 1998 )

Donald Ray White v. Armando Balderama , 153 F.3d 237 ( 1998 )

Davenport v. Causey , 521 F.3d 544 ( 2008 )

City of San Juan v. Gonzalez , 22 S.W.3d 69 ( 2000 )

Bluitt v. Houston Independent School Dist. , 236 F. Supp. 2d 703 ( 2002 )

McINTOSH v. Smith , 690 F. Supp. 2d 515 ( 2010 )

Martin v. TEX. DEPT. OF PROTECT. AND REGUL. SRVCS. , 405 F. Supp. 2d 775 ( 2005 )

Gooden v. Crain , 405 F. Supp. 2d 714 ( 2005 )

Waller v. Spears , 61 F. Supp. 2d 574 ( 1999 )

Golla v. City of Bossier City , 687 F. Supp. 2d 645 ( 2009 )

Pineda v. City of Houston , 124 F. Supp. 2d 1037 ( 1999 )

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