* Pursuant to 5 TH C IR

. R. 47.5, the Court has determined that this opinion should not be published

and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 98-40487

Summary Calendar

JENNIE DRAIN, Individually and as Administratrix of the Estate of Joe D. Drain, Et Al,

Plaint iffs,

SHELLY DRAIN SMITH, Individually and as an Heir to the Estate

of Joe D. Drain; JOE DON DRAIN, Deceased,

Plaintiffs-Appellees

VERSUS

GALVESTON COUNTY, ET AL,

Defendants.

DANIEL COOPER, Constable, Individually and in his Official Capacity,

Defendant-Appellant

------------------------------------------ SHELLY DRAIN SMITH, Individually and as an Heir to the Estate of Joe D. Drain

Plaintiff-Appellee

versus

GALVESTON COUNTY, ET AL

Defendants,

DANIEL COOPER, Constable, Individually and in His Official Capacity,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. G-97-CV-316

____________________________________________________________

February 18, 1999

Before WISDOM, DUHÉ, and DeMOSS, Circuit Judges.

PER CURIAM: *

On December 26, 1995, Joe Drain shot his wife, Jennie, during a domestic dispute. Mr. Drain

then call ed 911 and reported what he had done. Three League City (Texas) police officers and

Constable Daniel Cooper of Galveston County responded to the call. When the authorities arrived,2 Record at 1237-1238, footnote 3.

3 Record at 504, p. 29. Mr. Drain, his injured wife, and his daughter were all still inside the house. Mr. Drain stated that he

felt he would be killed if he came out of the house, and a standoff ensued.

Eventually a League City Police detective reached Mr. Drain on the telephone, and persuaded

him to come out of the house. Mr. Drain exited the house with his gun pointed at his own head. The

factual evidence of exactly what happened next is in conflict. It is undisputed, however, that shortly

after exiting the house, Constable Cooper shot Mr. Drain five times, killing him.

Joe Drain’s widow, Jennie Drain, filed suit on her own behalf and on behalf of Joe Drain’s

estate, of which she was administratrix. Shelley Drain Smith, Mr. Drain’s daughter from a previous

marriage, also filed suit. The plaintiffs sued Galveston County, League City, and Constable Daniel

Cooper under 28 U.S.C. § 1983, asserting that Cooper had unreasonably used excessive force in the

shooting death of Joe Drain. Cooper moved for summary judgment, contending that his actions were

objectiv ely reasonable as a matter of law. The district court denied the motion, and Cooper now

appeals. We dismiss this appeal for lack of jurisdiction.

Cooper alleges two errors on the part of the district court. First, he contends that the district

judge erred in denying his motion for summary judgment by failing to analyze properly his claim of

qualified immunit y. Second, he contends that the district judge erred in denying his objections to

summary judgment evidence presented by the plaintiffs.

As to the second contention, the dist rict court plainly stated in its order that it did not

consider the evidence to which the defendants objected in reaching its conclusion. We therefore

need not review this assi gnment of error. 2 Instead, we review only the order denying summary

judgment.

In moving for summary judgment, Cooper contends that the plaintiffs have offered no

competent summary judgment evidence which could show that he acted unreasonably. This is not

the case. The deposition testimony of Officer Ward, who witnessed the shooting, was that Drain was

pointing a gun at his own head when Constable Cooper shot hi m to death. 3 In response to this4 Fed. R. Civ. P. 56 (c).

5 Record at 1236.

6 Naylor v. Louisiana , 123 F.3d 855, 857 (5th Cir. 1997). evidence, Cooper points to his own version of the events, which has changed at least twice since his

original statement. On the basis of these conflicting versions of the events, the district court found

that there was a genuine issue as to a material fact, and denied summary judgment. 4

In response to Cooper’s appeal, Drain contends that this Court lacks jurisdiction to hear the

appeal, because the denial of summary judgment was based on the existence of disputed issues o f

material fact. We agree. As the district court stated in its order denying summary judgment, “[I]n

this case, the facts necessary to determine whether Cooper’s actions were objectively reasonable are

in hot dispute, as shown by the depositions and affidavits of the officers who witnessed the events

firsthand. The co nflicting statements create a genuine issue of material fact, which precludes

summary judgment.” 5

It is clear from the district court’s opinion that the court denied summary judgment because

of a dispute as to the facts, not because of its application of established law to a given set of facts.

A defendant who raises a qualified immunit y defense is not entitled to appeal a district court’s denial

of summary judgment “insofar as that order determines whether or not the pretrial record sets forth

a genuine issue of fact for trial.” 6 As this is just such a case, this Court is not possessed of jurisdiction

in this matter, and the appeal is DISMISSED.