United States Court of Appeals 

For the First Circuit 

No. 17-1378 

VICKI McKENNEY, individually and as next friend of 

STEPHEN McKENNEY, and as personal representative of the 

ESTATE OF STEPHEN McKENNEY, 

Plaintiff, Appellee, 

v. 

NICHOLAS MANGINO, 

Defendant, Appellant, 

CUMBERLAND COUNTY ET AL., 

Defendants. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MAINE 

[Hon. Jon D. Levy, U.S. District Judge] 

Before 

Howard, Chief Judge, 

Selya and Lipez, Circuit Judges. 

 Peter T. Marchesi, with whom Cassandra S. Shaffer and Wheeler 

& Arey, P.A. were on brief, for appellant. 

 Jamesa J. Drake, with whom Drake Law, LLC, Amber L. Tucker, 

and The Law Office of Amber L. Tucker, LLC were on brief, for 

appellee. 

October 6, 2017 
- 2 - 

SELYA, Circuit Judge. This is a tragic case in which a 

man died at the hands of a police officer who was trying to do his 

job. The underlying suit alleges, in relevant part, that the 

officer violated 42 U.S.C. § 1983 through the precipitous use of 

deadly force. In a pretrial ruling, the district court held that 

the officer was not entitled to qualified immunity at the summary 

judgment stage. See McKenney v. Mangino, No. 2:15-cv-00073, 2017 

WL 1365959, at *13 (D. Me. Apr. 12, 2017). The officer challenges 

that ruling. After careful consideration, we dismiss portions of 

this interlocutory appeal for want of appellate jurisdiction and 

otherwise affirm. 

I. BACKGROUND

Because we are tasked with reviewing a summary judgment 

ruling, we rehearse the facts in the light most hospitable to the 

nonmovant, consistent with record support. See Foote v. Town of 

Bedford, 642 F.3d 80, 82 (1st Cir. 2011). 

On April 12, 2014, a clear, sunny day in Windham, Maine, 

plaintiff-appellee Vicki McKenney called 911 at 6:14 a.m. to report 

that her husband, 66-year-old Stephen McKenney, was threatening 

suicide and had been "aggressive" and "physical" with her. She 

told the dispatcher that her home contained firearms. Within a 

matter of minutes, Windham police officers James Cook and Seth 

Fournier arrived at the McKenney residence and met Mrs. McKenney 

(who was standing outside). She explained that her husband had 
- 3 - 

been experiencing severe back pain and had "snapped" that morning. 

Almost immediately thereafter, a Cumberland County deputy sheriff, 

defendant-appellant Nicholas Mangino, drove up in his cruiser to 

serve as backup. 

The three officers entered the front room of the house 

at 6:22 a.m. and encountered McKenney, who appeared to have a gun 

in his hand. When asked what he was holding, McKenney replied 

".357 Magnum." Although the officers twice directed McKenney to 

put the gun down, McKenney did not comply. Still, he never pointed 

his weapon at any of them inside the dwelling, nor did he utter 

anything resembling a threat. 

The officers retreated outdoors, leaving McKenney inside 

the house. Officer Fournier placed Mrs. McKenney in his patrol 

car, which he then drove to a cul-de-sac at the end of the street 

a few hundred yards away. He maintained a clear line of sight, 

though, to the garage and driveway of the McKenney home. 

Meanwhile, the defendant, armed with his AR-15 rifle, his Taser, 

and pepper spray, took cover behind his cruiser (which was parked 

roughly 100 feet from the McKenneys' garage).1

The defendant peeked over his car from time to time to 

observe the garage and driveway, while simultaneously receiving 

 1 For the sake of completeness, we note that Zachary Welch, a 

civilian who had been invited by the defendant as a ride-along, 

was crouched in the defendant's parked cruiser. 
- 4 - 

updates about McKenney's movements from Officer Fournier. Between 

6:24 a.m. and 6:31 a.m., McKenney ambled nonchalantly around and 

about his open garage, driveway, and house. He entered and exited 

the dwelling around six times during that seven-minute span. At 

about 6:26 a.m., McKenney left the house with his gun dangling 

from his hand. The defendant yelled at him three times to "drop 

the gun." A few seconds later, McKenney — who was approximately 

100 feet away from the defendant — raised the gun over his head.2 

By all accounts, McKenney had a vacant stare and appeared "not at 

home" mentally. In short order, he lowered the gun without firing 

it and continued to weave haphazardly into and out of his house 

between 6:26 a.m. and 6:31 a.m. 

At approximately 6:31 a.m., Officer Fournier radioed to 

the defendant that McKenney, who was still dangling his firearm 

and walking leisurely, was in front of the garage. Fournier 

stated: "I can't tell, but he might be pointing that, so be 

careful." Within seconds, McKenney began walking (still in his 

 2 At his deposition, the defendant testified that he believed 

that McKenney was pointing the weapon in his direction. Because 

we are reviewing a summary judgment ruling, however, we recount 

the facts in the light most favorable to the nonmovant (here, the 

plaintiff). See Foote, 642 F.3d at 82. The district court seems 

to have assumed the truth of the fact that the defendant 

"reasonably believed" that McKenney "had pointed his gun at him." 

McKenney, 2017 WL 1365959, at *12. Any such assumption was, of 

course, made only for the sake of argument; otherwise, it would 

have been unwarranted. The court was obliged to view the summary 

judgment record in the light most hospitable to the plaintiff. 

See Foote, 642 F.3d at 82. 
- 5 - 

driveway) in the direction of the defendant's parked cruiser. He 

was not making any sudden or evasive movements and was not pointing 

his gun at anyone. Officer Fournier alerted the defendant that 

McKenney was "walking toward your car right now." When McKenney 

had reached a point 69 feet away from the cruiser, the defendant 

fired an errant shot at McKenney's central mass. Seconds later, 

he fired a second shot at McKenney's head, which struck and killed 

McKenney. None of the officers had warned McKenney that they would 

use deadly force if he refused to drop his weapon. 

We fast-forward to February of 2015, when Mrs. McKenney, 

qua plaintiff, suing individually and as the personal 

representative of McKenney's estate, brought a civil action in a 

Maine state court against the defendant and several other persons 

and entities.3 As relevant here, the plaintiff sued the defendant 

under 42 U.S.C. § 1983, which authorizes suit against any person 

who, while acting under color of state law, violates another 

person's federally assured constitutional or statutory rights. 

See Kalina v. Fletcher, 522 U.S. 118, 123 (1997). Specifically, 

the plaintiff's complaint alleged that the defendant's use of 

deadly force transgressed McKenney's Fourth Amendment right to be 

free from unreasonable seizures. 

 3 Given the narrowly circumscribed scope of this interlocutory 

appeal, it would serve no useful purpose to enumerate the other 

parties and causes of actions limned in the complaint. 
- 6 - 

The action was seasonably removed to the federal 

district court. See 28 U.S.C. §§ 1331, 1441(a). Following 

pretrial discovery, the defendant sought summary judgment on, 

inter alia, qualified immunity grounds. See Fed. R. Civ. P. 56(a). 

The district court denied the motion. Construing the 

record in the light most favorable to the plaintiff, the court 

ruled that a rational jury could find that it was unreasonable for 

the defendant to believe that McKenney "posed an immediate threat 

to the safety of the [defendant] or others at the time he was 

shot." McKenney, 2017 WL 1365959, at *12. In explaining this 

ruling, the court noted that at the time of the shooting, McKenney 

was ambulating nonchalantly around his driveway with his gun 

dangling by his side and was nearly 70 feet away from the 

defendant's cruiser. See id. By the time the defendant pulled 

the trigger, it had been approximately six minutes since the 

defendant thought he had seen McKenney pointing the gun at him. 

See id. Viewing the facts in the requisite light, the court 

concluded that a rational jury could find that the defendant "had 

ample opportunity to observe [McKenney's] actions and movements 

over the course of several minutes, and acted with knowledge of 

all of the relevant circumstances." Id. Other facts, such as 

McKenney's suicidality, the fact that the last order directing him 

to drop his weapon had come approximately six minutes earlier, and 

the fact that no one had ever warned McKenney that deadly force 
- 7 - 

would be used if he failed to comply with the officers' orders, 

"militate[d] against the reasonableness" of the defendant's use of 

deadly force. Id. In a nutshell, the court below held that on 

the plaintiff's supportable version of the facts, an objectively 

reasonable police officer would have understood, at the moment the 

shot was fired, that employing deadly force against McKenney would 

contravene clearly established law. See id. at *12-13. 

This appeal ensued. Notwithstanding the general 

prohibition against interlocutory appeals, see 28 U.S.C. § 1291, 

the defendant asserts that we have jurisdiction because his appeal 

rests on a denial of qualified immunity and his arguments are 

purely legal. See Johnson v. Jones, 515 U.S. 304, 319-20 (1995); 

Camilo-Robles v. Hoyos, 151 F.3d 1, 8 (1st Cir. 1998). 

II. ANALYSIS

A district court may only grant summary judgment when 

the record, construed in the light most congenial to the nonmovant, 

presents no genuine issue as to any material fact and reflects the 

movant's entitlement to judgment as a matter of law. See Fed. R. 

Civ. P. 56(a); Schiffmann v. United States, 811 F.3d 519, 524 (1st 

Cir. 2016). We review rulings granting or denying summary judgment 

de novo. See DePoutot v. Raffaelly, 424 F.3d 112, 117 (1st Cir. 

2005). 

Subject to only a handful of carefully circumscribed 

exceptions, our appellate jurisdiction is restricted to review of 
- 8 - 

final orders and judgments. See Johnson, 515 U.S. at 309-10. 

Consequently, an interlocutory order denying summary judgment is 

typically not appealable when first entered. See 28 U.S.C. § 1291; 

Plumhoff v. Rickard, 134 S. Ct. 2012, 2018 (2014). 

But an exception to the general requirement of finality 

is potentially applicable here. Qualified immunity is a doctrine 

that shelters government officials from civil damages liability 

"insofar as their conduct does not violate clearly established 

statutory or constitutional rights of which a reasonable person 

would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 

Courts long have recognized that qualified immunity consists of 

both an immunity from suit and an immunity from damages. See 

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Thus, claims of 

qualified immunity ought to be resolved at the earliest practicable 

time. See Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987). 

Consistent with this principle, we have held that, notwithstanding 

the absence of a final judgment, we have jurisdiction to review 

interlocutory rulings implicating qualified immunity as long as 

those rulings are purely legal in nature (say, a ruling that a 

given body of facts will support a claimed violation of clearly 

established law). See Stella v. Kelley, 63 F.3d 71, 74 (1st Cir. 

1995) (citing Johnson, 515 U.S. at 316-17). But we may not review, 

on interlocutory appeal, an order denying qualified immunity "to 

the extent that [the order] turns on either an issue of fact or an 
- 9 - 

issue perceived by the trial court to be an issue of fact." Id. 

By virtue of this prohibition, we lack jurisdiction to consider a 

defendant's argument "that the facts asserted by the plaintiffs 

are untrue, unproven, warrant a different spin, tell only a small 

part of the story, and are presented out of context." Díaz v. 

Martínez, 112 F.3d 1, 5 (1st Cir. 1997). 

It follows that defendants who invoke our limited power 

of interlocutory review to redress denials of qualified immunity 

must be prepared to accept the facts in the light most favorable 

to the plaintiff and "develop the argument that, even drawing all 

the inferences as the district court concluded a jury permissibly 

could, they are entitled to judgment as a matter of law." Cady v. 

Walsh, 753 F.3d 348, 359-60 (1st Cir. 2014). In other words, an 

appellant must explain why he is entitled to qualified immunity 

even if one assumes that the district court properly analyzed the 

facts.4 See id. at 361; see also Morse v. Cloutier, 869 F.3d 16, 

25 (1st Cir. 2017). 

Having erected this jurisdictional framework, we turn 

next to the qualified immunity standard. When a defendant invokes 

 4 The Supreme Court has carved out an isthmian exception to 

this rule, instructing courts to disregard the nonmovant's version 

of the facts if that version is "blatantly contradicted by the 

record." Scott v. Harris, 550 U.S. 372, 380 (2007); see Penn v. 

Escorsio, 764 F.3d 102, 105 n.2 (1st Cir. 2014). Here, however, 

the defendant does not argue that this exception applies and, in 

all events, the record belies its applicability. 
- 10 - 

qualified immunity, an inquiring court typically engages in a "twostep pavane." Alfano v. Lynch, 847 F.3d 71, 75 (1st Cir. 2017). 

First, the court must determine "whether the plaintiff's version 

of the facts makes out a violation of a protected right." Id. 

Second, the court must determine "whether the right at issue was 

'clearly established' at the time of defendant's alleged 

misconduct." Id. (quoting Matalon v. Hynnes, 806 F.3d 627, 633 

(1st Cir. 2015)). This second step is itself divisible into two 

components. To begin, the plaintiff must point to "'controlling 

authority' or a 'consensus of cases of persuasive authority'" that 

broadcasts "a clear signal to a reasonable official that certain 

conduct falls short of the constitutional norm." Id. at 76 

(quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)). Then, the 

court must evaluate "whether an objectively reasonable official in 

the defendant's position would have known that his conduct violated 

that rule of law." Id. These inquiries are carried out with the 

understanding that qualified immunity is meant to shield "all but 

the plainly incompetent or those who knowingly violate the law." 

White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam) (quoting 

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam)). 

Before proceeding further, we lay the relevant 

constitutional foundation. Here, the background law is supplied 

by the Fourth Amendment, which guarantees "[t]he right of the 

people to be secure in their persons, houses, papers, and effects, 
- 11 - 

against unreasonable searches and seizures." U.S. Const. amend. 

IV. A police officer's use of deadly force is deemed a seizure 

under the Fourth Amendment, and such an extreme action is 

reasonable (and, therefore, constitutional) only when "at a 

minimum, a suspect poses an immediate threat to police officers or 

civilians." Jarrett v. Town of Yarmouth, 331 F.3d 140, 149 (1st 

Cir. 2003) (per curiam) (citing Tennessee v. Garner, 471 U.S. 1, 

11 (1985)). 

Timing is critically important in assessing the 

reasonableness of an officer's decision to use lethal force. Our 

case law is "comparatively generous" to officers facing "potential 

danger, emergency conditions or other exigent circumstances," and 

we have fashioned "a fairly wide zone of protection" for the police 

in borderline cases. Roy v. Inhabitants of City of Lewiston, 42 

F.3d 691, 695 (1st Cir. 1994) (citing Graham v. Connor, 490 U.S. 

386, 396-97 (1989)); see Berube v. Conley, 506 F.3d 79, 85 (1st 

Cir. 2007). But that zone of protection has shifting boundaries. 

Everything depends on context, and the use of deadly force, even 

if "reasonable at one moment," may "become unreasonable in the 

next if the justification for the use of force has ceased." Lytle 

v. Bexar Cty., 560 F.3d 404, 413 (5th Cir. 2009). Put another 

way, "[a] passing risk to a police officer is not an ongoing 

license to kill an otherwise unthreatening suspect." Abraham v. 

Raso, 183 F.3d 279, 294 (3d Cir. 1999). 
- 12 - 

Among other things, a suspect's physical proximity and 

the speed of his movements are highly relevant to this inquiry. 

See Kirby v. Duva, 530 F.3d 475, 482–83 (6th Cir. 2008); Walker v. 

City of Orem, 451 F.3d 1139, 1160-61 (10th Cir. 2006). When 

feasible, a police officer must give some sort of warning before 

employing deadly force. See Garner, 471 U.S. at 11-12; see also 

Young v. City of Providence ex rel. Napolitano, 404 F.3d 4, 23 

(1st Cir. 2005) (concluding that officer violated Fourth Amendment 

by firing "extraordinarily quickly" and without "adequate warning" 

at armed man whose gun was "pointed downwards"). Moreover, federal 

courts have afforded a special solicitude to suicidal individuals 

in lethal force cases when those individuals have resisted police 

commands to drop weapons but pose no real security risk to anyone 

other than themselves. See Weinmann v. McClone, 787 F.3d 444, 450 

(7th Cir. 2015) (collecting appellate precedents holding that, as 

of 2007, clearly established law prevented police officers from 

employing "deadly force against suicidal people unless they 

threaten harm to others"); Mercado v. City of Orlando, 407 F.3d 

1152, 1160-61 (11th Cir. 2005) (similar). 

Here, the defendant concentrates on the second step of 

the qualified immunity paradigm and faults the district court for 

failing to identify a sufficiently similar case that would have 

served to place him on notice that his use of deadly force violated 
- 13 - 

clearly established Fourth Amendment law.5 In his view, the 

contours of the relevant Fourth Amendment law were so blurred at 

the time that he shot McKenney that he is deserving of qualified 

immunity. We have jurisdiction to consider this purely legal 

asseveration. See Johnson, 515 U.S. at 316-17; Morse, 869 F.3d at 

24. 

Jurisdiction notwithstanding, this argument lacks force. 

Although the district court frankly acknowledged that it could not 

find "[a] case presenting a nearly identical alignment of facts," 

McKenney, 2017 WL 1365959, at *9, such an exacting degree of 

precision is not required to thwart a qualified immunity defense. 

To be sure, "the clearly established law" employed in a 

qualified immunity analysis "must be particularized to the facts 

of the case." White, 137 S. Ct. at 552 (internal quotation marks 

omitted). This instruction fits hand in glove with the Supreme 

Court's warning that, when dealing with qualified immunity, we 

should not over-rely on precedents that are "cast at a high level 

of generality." Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per 

curiam). Even so, there need not be "a case directly on point" to 

satisfy the second step of the qualified immunity paradigm. 

Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011); see Anderson, 483 

 5 In this appeal, the defendant does not challenge the 

district court's finding of a constitutional violation at step one 

of the qualified immunity paradigm. 
- 14 - 

U.S. at 640; Limone v. Condon, 372 F.3d 39, 48 (1st Cir. 2004). 

The test is whether existing case law has "placed the statutory or 

constitutional question beyond debate." al-Kidd, 563 U.S. at 741. 

In some cases, "a general constitutional rule already identified 

in the decisional law may apply with obvious clarity to the 

specific conduct in question." United States v. Lanier, 520 U.S. 

259, 271 (1997). What counts is whether precedents existing at 

the time of the incident "establish the applicable legal rule with 

sufficient clarity and specificity to put the official on notice 

that his contemplated course of conduct will violate that rule." 

Alfano, 847 F.3d at 76; see Tolan v. Cotton, 134 S. Ct. 1861, 1866 

(2014) (per curiam); Hope v. Pelzer, 536 U.S. 730, 741 (2002). 

The Court's landmark decisions in Graham and Garner, 

which articulate generalized standards for excessive force 

liability under the Fourth Amendment, "do not by themselves create 

clearly established law outside an obvious case." White, 137 S. 

Ct. at 552 (internal quotation marks omitted). But taking the 

facts and the reasonable inferences therefrom in the light most 

favorable to the plaintiff, the threat presented lacked immediacy 

and alternatives short of lethal force remained open. Seen in 

that light, this was a case in which the feasibility of a more 

measured approach was apparent. Moreover, the district court did 

precisely what the Supreme Court has instructed courts to do: it 

focused on "the specific context of the case." Brosseau, 543 U.S. 
- 15 - 

at 198 (internal quotation marks omitted). With that context in 

mind, it relied on well-settled precedents addressing the 

lawfulness of using deadly force against an individual who was 

suicidal, armed, slow in gait, some distance away from the officer, 

and had received no commands or warnings for several minutes. See 

McKenney, 2017 WL 1365959, at *9-11. We conclude, without serious 

question, that the precedents identified by the district court and 

those discussed supra gave the defendant fair warning that, if the 

facts were as the plaintiff claimed them to be, his use of deadly 

force against McKenney offended clearly established Fourth 

Amendment law — and an objectively reasonable officer would have 

realized as much. Therefore, the district court properly concluded 

that the absence of a precedent on all fours was not dispositive. 

In an effort to dull the force of this reasoning, the 

defendant makes a series of factbound arguments. Most notably, 

the defendant repeatedly insists — contrary to the inferences drawn 

by the district court — that he reasonably perceived McKenney as 

an imminent danger at the time of the shooting, such that he was 

left with no real choice but to fire his weapon. In turn, he urges 

reversal in light of evidence that he maintains the district court 

either overlooked or insufficiently considered. These facts 

include data points such as that McKenney had ignored police 

commands to drop his loaded weapon, had at one time raised his 
- 16 - 

gun, and was approaching the defendant (and the unarmed civilian 

in the defendant's cruiser) at the time he was shot. 

But there is a rub: the defendant's characterization of 

the summary judgment record collides head-on with the district 

court's synthesis of the facts. The defendant either ignores or 

gives unduly short shrift to evidence that was central to the 

district court's conclusion that, on the version of the facts most 

hospitable to the plaintiff, the defendant had "ample opportunity 

to observe [McKenney’s] actions and movements" before pulling the 

trigger and that the defendant’s decision to shoot McKenney was 

"unreasonably precipitous." McKenney, 2017 WL 1365959, at *12-

13. These facts include McKenney's suicidality, the slowness of 

his gait, the clear visibility, the fact that six minutes had 

elapsed since any officer had last ordered McKenney to drop his 

weapon, the fact that nobody had warned McKenney that deadly force 

would be used if he failed to follow police commands, and the sixminute gap between when McKenney raised his gun skywards and when 

the defendant pulled the trigger. Rather than accept arguendo 

that McKenney never came close to pointing his gun in the 

defendant's direction, the defendant devotes much sound and fury 

to the proposition that he reasonably perceived McKenney to be 

aiming his weapon at him. In short, the defendant has woven 

factbound arguments regarding both the immediacy of the threat 

posed by McKenney and the feasibility of less drastic action into 
- 17 - 

the warp and woof of his challenge to the district court's 

qualified immunity analysis. Such an intertwining of disputed 

issues of fact and cherry-picked inferences, on the one hand, with 

principles of law, on the other hand, places these arguments beyond 

our jurisdictional reach on interlocutory appeal. See Cady, 753 

F.3d at 359-60; cf. Whitfield v. Meléndez-Rivera, 431 F.3d 1, 8 

(1st Cir. 2005) (concluding that the question of whether a suspect 

appeared threatening before officer employed lethal force was 

properly resolved by the jury). 

To sum up, the precedents make pellucid that the most 

relevant factors in a lethal force case like this one are the 

immediacy of the danger posed by the decedent and the feasibility 

of remedial action. See Garner, 471 U.S. at 11-12; Whitfield, 431 

F.3d at 8; Young, 404 F.3d at 23. Taking the facts in the light 

most amiable to the plaintiff (as the law required it to do), the 

district court concluded that a rational jury could reasonably 

infer both that McKenney did not pose an imminent threat and that 

viable remedial measures had not been exhausted. The court also 

concluded that these facts should have been obvious to an 

objectively reasonable officer in the defendant's position. 

Although the defendant invites us to adopt a spin on the summary 

judgment record different from that taken by the district court, 

we lack jurisdiction to accept that invitation under Johnson and 

its progeny. See Goguen v. Allen, 780 F.3d 437, 455-56 (1st Cir. 
- 18 - 

2015) (dismissing appeal for lack of jurisdiction when "defendants 

repeatedly ignore[d] evidence, and reasonable inferences 

therefrom" on which the court below premised its interlocutory 

denial of qualified immunity); Penn v. Escorsio, 764 F.3d 102, 110 

(1st Cir. 2014) (dismissing appeal from interlocutory denial of 

qualified immunity after "peel[ing] away the facade by which" 

defendants portrayed "purely factual disputes" as legal 

arguments); Cady, 753 F.3d at 361 (concluding similarly when 

defendant failed to concede arguendo that the court below "was 

correct in its determinations regarding what inferences were 

permissible on the summary judgment record"); Díaz, 112 F.3d at 5 

(dismissing appeal for lack of jurisdiction when defendant merely 

attempted to take "a different spin" on the facts). Accordingly, 

we dismiss the defendant's factbound challenges to the district 

court's order for lack of jurisdiction. 

III. CONCLUSION 

We need go no further. For the reasons elucidated above, 

we dismiss the appeal in part for want of appellate jurisdiction 

and otherwise affirm the district court's denial of summary 

judgment. Costs shall be taxed in favor of the plaintiff. 

Of course, our words here are not the end of the matter. 

The pretrial denial of qualified immunity is but "a way station in 

the travel of a case." Camilo-Robles, 151 F.3d at 9. Depending 

on the facts proven at trial and the inferences drawn by the jury, 
- 19 - 

the defendant may or may not ultimately prevail on his qualified 

immunity defense.6 We hold today simply that the defendant's 

purely legal challenge is devoid of merit and that his factbound 

arguments are inappropriate for interlocutory appeal. 

So Ordered. 

 6 We recognize that the defendant faced a challenging 

situation. On this scumbled record, though, it is for the jury to 

decide whether McKenney presented a sufficiently serious and 

imminent threat, such that the defendant's ultimate decision to 

use lethal force was objectively reasonable or, at least, belongs 

within the "zone of protection" afforded to police officers in 

borderline cases. Roy, 42 F.3d at 695.