Colston v. Barnhart

146 F.3d 282, 1998 WL 390598

Opinions

ON APPLICATION FOR REHEARING EN BANC

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. Col-ston’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, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), and Behrens v. Pelletier, 516 U.S. 299, 116 S.Ct. 834, 133 L.Ed.2d 773 (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, 115 S.Ct. at 2159. 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 “[mjaterial issues of fact remain[ed].” 516 U.S. at 312, 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 nonap-pealable.” 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 ease[.]” 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 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, 115 S.Ct. at 2159).

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 Beh-rens, “determinations of evidentiary sufficiency at summary judgment are not immediately appealable merely because they happen to arise in a qualified-immunity ease; if what is at issue in the sufficiency determination is nothing more than whether the evidence could support a finding that particular conduct occurred, the question decided is not truly ‘separable’ from the plaintiffs claim, and hence there is no ‘final decision’ under Cohen and Mitchell.”¹ 516 U.S. at 313, 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 ease 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 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 challeng ing 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 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, 516 U.S. at 313, 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 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 Col-ston 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 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.

Footnotes

1

.. In Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (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, 105 S.Ct. 2806, 2816-17, 86 L.Ed.2d 411 (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.

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 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, 105 S.Ct. 1694, 1701, 85 L.Ed.2d 1 (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).