UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ JANELLE BRIDGES, individually and as the surviving spouse of Shane Allen Bridges, deceased, and as the Mother and Next Friend of: A.B., a minor child; B.B., a minor child; S.B. Jr., a minor child; A.C., a minor child; J.S., a minor child; J.H., a minor child, Plaintiffs - Appellees,

v. KYLE WILSON, in his individual and official capacity, Defendant - Appellant, and MIKE REED, in his individual and official capacity; MAYES COUNTY, Defendants. No. 16-5177 (D.C. No. 4:15-CV -00126-GKF-PJC) (N.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , EBEL , and MATHESON , Circuit Judges.

________________ _________________

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 4, 2017
Elisabeth A. Shumaker Clerk of Court2 The Appellees, heirs of Shane Bridges (hereinafter the “estate of Shane Bridges” or the “estate”), br ought this action under 42 U. S.C. § 1983. The estate alleges Appellant Kyle Wilson—a deputy sh eriff in Mayes County, Oklahoma—used excessive force in violation of the Fourth Amendment in shooting and killing Bridges on January 1, 2014. Following discove ry, Wilson filed a motion for summary judgment. The district court determined that a jury could find Bri dges did not fire or even point a gun at Wilson. By taking th is view—the version of the facts most favorable to the estate, the non-moving pa rty—the district court concluded Wilson did not carry his burden of proving that he was entitled to qualified immunity. The district court subsequently denied Wilson’s summary ju dgment motion because there were genuine issues of material fact. Wi lson now brings this interlocutory appeal, arguing that we have jurisdic tion under 28 U.S.C. § 1291. Because Wilson asks us to resolve disputes of material fact that do not rest on discrete questions of law, we lack appellate jurisdiction a nd dismiss this appeal.
I When reviewing a district court’s denial of qualified immunity at the summary judgment stage, we generally do not make our own factua l determinations, but rely instead on the district court’s recitation of the facts. See Johnson v. Jone s, 515 U.S. 304, 319–20 (1995). Here, the district court found the following: This case arises from the fatal shooting of Shane Bridges by [Kyle Wilson, a de puty sheriff of the Mayes County Sheriff’s O ffice,] on January 1, 2014 . . . . Wilson received a dispatch call notif ying him that there was an intoxicated, possibly suicid al person who was possibly3 threatening harm to a child at the Brid ges’s residence. Wilson arrived and exited hi s vehicle and stood by the front, driver’s side tire of his patrol car. Shane Bridges was in the front room of the house when Wilson arrived, and went to the door, opening and closing the door. Wilson fired thirteen shots in Bridges’s direction, hitting Bridges twice and fatally wounding him . . . . [V]iewing the evidentiary ma terials in the light most favorable to the plaintiffs, Wilson did not identify himself as law enforcement officer, order Bridges to drop a weapon, or give Bridges a ny other commands; Bridges did not fire a gun; and, at the tim e of the shooting, the distance between Wilson and Bridges wa s approximately thirty to thirty-five feet. D. Ct. Order at 1, 3–4 (record citations omitted). Wilson argues for a different version of the facts on appeal, as he did in his summary judgment briefing before the district court. In its summ ary judgment order, the district court explaine d why it discounted Wilson’s ve rsion of the events. It stated: Deputy Wilson testified th at after he exited his vehicle, Bridges opened the fr ont door of the residence, stepped onto the front porch , and fired a single shot, although not in Wilson’s direction. Wilson testified that he then shouted Shane Bridges’s name, after which Shane turned and started firing again. Turning a gun on Wilson would be a hostile motion, even if Bridges did not fire. Although the testimony of Janelle Bridges[, Shane Bridges’s widow,] and Rex Da le Cowan[, a neighbor and first responder who lived in the home closest to the Bridges and heard gunshots, ] addresses whether Shane Bridges fired a gun [and suggests Shane Bridges did not fire his gun], the only eviden tiary material addressing whether Shane Bridges turned the gun in Wilson’s direction is Wilson’s own testimony. None of the evidentiary material s submitted by the parties contradicts Wilson’s testimony on this issue. However, “courts should be cautious on summary judgment to ‘ensure that the4 officer is not taking advantage of the fact that the witness most likely to contradict hi s story—the person shot dead— is unable to testify.’” [Pau ly v. White, 814 F.3d 1060, 1079–80 (10th Cir. 2016)] [1] (quoting Abraham v. Raso, 183 F.3d 279, 294 (3d Cir. 1 999)). “[T]he court may not simply accept what may be a self-serving account by the police officer.” Id. at 1080 (quoting Sco tt v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994)). The court “must also look at the circumstantial evidence that, if believed would tend to discredit the police officer’s story, and consider whether this evidence could convince a rational factfinder that the officer acted unreasonably.” Id. The court concludes a rational factfinder could—ba sed on the testimony of Janelle Bridges and Rex Dale Cowan—conclude Wilson’s testimony that Bridges fire d a gun was inaccurate, and could, accordingly, discre dit Wilson’s testimony that Shane Bridges turned to point a gun at him. D. Ct. Order at 4 (rec ord citations omitted). Thus, the district court de termined that, viewing the facts in the light most favorable to the estate, Wilson committed a clearly established Fourth Amendment violation. Id. at 5. The district c ourt then held “summa ry judgment is not appropriate because genuine is sues of material fact rema in, including . . . whether Bridges pointed or fired a gun at Wilson before Wilson shot Bridges, and thus whether Wilson’s use of deadly force wa s objectively reasonable in light of the circumstances.” Id. at 5–6. 2 Wilson then filed this interl ocutory appeal of the district court’s denial of qualified im munity. Vol. VIII at 1427.

1 The Supreme Court subsequently vacat ed this opinion. See Pauly v. White, 137 S. Ct. 548 (2017).

2 In addition to this § 1983 excessive force claim agai nst Wilson in his individual capacity, the esta te’s complaint also incl uded a § 1983 claim against (continued . . .)5 II A Before we can consider the merits of Wilson’s qualified immunity argument, we must address the threshol d question of whether we have appellate jurisdiction. See Cox v. Glanz, 800 F.3d 1231, 1241 (10th Cir. 2015). Under 28 U.S.C. § 1291, we can review “all final deci sions of the district courts .” A denial of summary judgment is ordinarily not an app ealable final order under § 1291. Roosevelt–Hennix v. Prickett, 717 F.3d 751, 753 (10th Cir. 2013). Yet, under the collateral order doctrine, a state official may appeal the district court’s denial of qualified immunity at summary judgment—but only to the extent it involves abst ract issues of law. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); see also Fancher v. Barrientos, 723 F.3d 1191, 1198 (10th Cir. 2013)

. To satisfy the requirements for appellate jurisdiction under the collateral order doctrine, the appellant-defendant “ must establish that the di strict court’s order (1) conclusively determined the disputed qu estion, (2) resolved an important issue completely separate from th e merits of the case, and (3 ) is effectively unreviewable on appeal from a final judgment.” Henderson v. Glanz, 813 F. 3d 938, 947 (10th Cir. (continued . . .) Wilson in his official capacity , an Oklahoma Government Tort Claims Act cause of action against Wilson, claims against the Mayes County sheriff in his individual and official capacities, and muni cipal liability claims agai nst Mayes County. Although the district court granted summary judgmen t on all of those claims, none of those claims are relevant to this appeal, as we are merely a ddressing Wilson’s interlocutory appeal from the denial of qualified immunity.6 2015) (quotation omitted); se e also Johnson, 515 U.S. at 310. If the district court denied summary judgment because there was a genuine issue of material fact, we lack jurisdiction because the defendant-appe llant “may not appeal a district court’s summary judgment order insofar as that orde r determines whether or not the pretrial record sets forth a ‘genuine ’ issue of fact for trial.” Johnson, 515 U.S. at 319–20. Yet, even under Johnson a nd its progeny, a district co urt’s determination that genuine issues of material fact preclude summary judgment does not necessarily bar our exercise of appellate jurisdiction in all cases. See Henders on, 813 F.3d at 948. We still have jurisdiction to address the merits of the qualified immunity analysis, but “only if our review w ould [not] require second-gue ssing the district court’s determinations of evidence sufficiency.” Id. (quoting Medina v. Cram, 252 F.3d 1124, 1130 (10th Cir. 2001)). That is, “[w]e may not and do not . . . second guess the district court’s determinations of evid ence sufficiency,” T.D. v. Patton, 868 F.3d 1209, 1213 n.4 (10th Cir. 2017), because “‘whether or not the pretrial record sets forth a genuine issue of fact fo r trial’ is not an abstract legal question, and a court of appeals lacks jurisdiction to review a dist rict court’s ruling on such a matter,” Allstate Sweeping, LLC v. Black, 706 F. 3d 1261, 1267 (10th Cir. 2013) (quoting Johnson, 515 U.S. at 320). We are left then with jurisdiction to hear cases in which “‘the defendant does not dispute the facts alleged by the plainti ff’ and raises only legal challenges to the denial of qualified immunity based on t hose facts.” Henders on, 813 F.3d at 948 (quoting Farmer v. Perrill, 288 F.3d 1254, 125 8 n.4 (10th Cir. 2002 )). By contrast,7 we lack jurisdiction if the defendant-appellant ’s appeal presents a revised version of the facts and challenges “the district cour t’s conclusion [that p]laintiffs presented sufficient evidence to survive summary judgment.” Id . (quoting Castillo v. Day, 790 F.3d 1013, 1018 (10th Cir. 2015)).
B In this appeal from the denial of qualified immun ity, Wilson challenges the district court’s version of th e facts. Wilson argues the di strict court “went out of its way to ignore the undisputed fact that Shane Bridges pointed his gun toward Wilson,” Aplt. Op. Br. at 29, because the paths of the bullets indicate that Bridges’s arm may have been raised, id. at 28, a nd the estate allegedly has “no physical evidence” to contradict Wilson’s testimony that Bridges pointed a gun at him. Id. at 29. Wilson therefore argues that “viewing th e facts in the light most favorable to the” estate still requires that we reject the district c ourt’s findings and accept the assumption that Bridges “turned toward [Wils on] with a pointed firearm.” Id. at 30; see also Aplt. Reply Br. at 6. Wilson then argues that, unde r this revised view of the facts, he is entitled to qua lified immunity becau se there was no clearly established law which would have alerted a reasonable officer in Wils on’s position that his use of deadly force would violate the Fourth Amendment. Aplt. Op. Br. at 30. The type of factual analysis th at Wilson urges us to undertake “would require second-guessing the district c ourt’s determinations of ev idence sufficiency.” Cox, 800 F.3d at 1242 (quotation omitte d). In its summary judgm ent order, the district court concluded that “genuine issues of material fact remain” regarding whether8 Bridges raised or fired a gun at Wilson. D. Ct. Order at 5–6. That is precisely the type of evidentiary analysis th at we lack jurisdiction to addr ess. Johnson, 515 U.S. at 319–20. C But that conclusion does not end our revi ew. Even if, on appeal from a denial of qualified immunity at summary judgmen t, a defendant-appellant challenges the district court’s determinations of eviden ce sufficiency, we are still permitted to address the merits in two circ umstances: (1) when the record “blatan tly contradict[s]” the district court’s factual re citation, Scott v. Harris, 550 U.S. 372, 380 (2007), or (2) when the district court faile d to specify the facts upon wh ich it based the denial of qualified immunity, Roosevelt-Hennix, 717 F. 3d at 753–54 (holding that a review of the district court record was appropriate be cause the district court merely provided a short statement that th e case was “quintessentially a jury matter”). Wilson makes two arguments in support of his contention that the record blatantly contradicts the dist rict court’s conclusion that a jury could find Bridges did not point a gun at Wilson. Aplt. Op. Br. at 30–35. We conc lude that neither argument has merit. First, Wilson refers to his expert’s testimony that th e paths of the two bullets that entered Bridges’s body indicate Bridges ha d his right arm raised. Id. at 32–33. But that testimony only provides the positio ning of Bridges’s arm at the time the bullets entered his body. It does not establish whether Bri dges was inside or outside of his home at the time, and thus whether Wilson could see Bridges and perceive him9 as a threat. Moreover, the expert’s te stimony does not indicate whether there was a gun in Bridges’s right hand wh en the bullets struck him. Second, Wilson argues Bridges must have been outside of his home at the time of the shooting—a factual dispute that the di strict court did not explicitly address. Wilson attempts to establish that Bridge s was outside based on three pieces of evidence: (1) his expert’s test imony that the paths of the bullet holes in the Bridges’s front door show the door was closed throug hout the shooting, (2) Janelle Bridges’s testimony that she heard Shane Bridges open a nd close the front door, id. at 177, and (3) Janelle Bridges’s testimony that she “stuck” her hands “out the door” to show she did not have a gun after she discovered her husband lying on the floor in the living room, Vol. II at 195. According to Wilson, this evidence conclu sively establishes that the front door was closed during the shooting, but became ajar thereafter. Further, Wilson argues the only explana tion for the door being open after the shooting is that Shane Bridges was outsi de when Wilson shot Bridges, forcing Bridges to retreat into the house a nd leave the door ajar behind him. But the evidence that Wilson cites does not directly contradict the district court’s factual recitation for two reasons. First, Wilson mischa racterizes Janelle Bridges’s testimony. She actua lly testified that she “hear d [Shane Bridges] open the door[,] . . . heard him shut th e door and walk back around the couch[,] and then . . . heard gunshots.” Id. at 177; see also id. at 185 (“He opens the door, he sees there’s a car, he shuts it and walks back.”). Th is testimony undermines Wilson’s argument that Shane Bridges had to be outside at th e time of the shooting. Further, Janelle10 Bridges’s testimony about sticking her hands out of the door was that she “ran to the door and . . . put [her] hands up.” Id. at 194. She did not explicitly testify about whether the door was open or closed at the time. This inconclusive testimony does not blatantly contradict th e district court’s account, wh ich did not address whether Shane Bridges was inside or outside dur ing the shooting or whether the door was open following the shooting. Also, the inferences that Wilson draw s from the three pieces of evidence ignore the estate’s evidence a bout the shooting. The estate ’s investigator identified thirteen bullet holes outside of the Br idges’s house—three in Janelle Bridges’s vehicle, three north of the fr ont door, two south of the front door, and five in the front door. Vol. VII, at 1019–38; see also Vol. VI, at 826–30. And the coroner recovered two bullets from Shane Bridges’s body. The estate argues that, logically, unless two of the bullet holes predated January 1, 2014, the bullets that entered and killed Bridges had to have traveled through the house or front door be fore hitting him. Thus, the estate argues there is evidence that Bridges wa s inside the house when he was shot, and not outside poin ting a gun at Wilson. At the very least, the estate’s evidence counters the testimony that Wilson c ites, and demonstrates that the record does not blatantly contradict the di strict court’s factual recitation. Finally, we conclude the di strict court sufficiently ar ticulated its reasoning for finding that there was a genuine issue of materi al fact as to whethe r Bridges raised or fired a gun at Wilson. In support of its determination that a jury could find that Bridges never fired a shot at Wilson, the district court cited Janelle Bridges’s and11 Rex Dale Cowen’s testimony th at it sounded as if shots were coming from only one gun. And the district court noted that Wilson’s testimony was the only evidence to support a finding that Bridges may have raised a gun and po inted it at Wilson. Since a jury could discount Wilson’s credibility—in part, because there was “circumstantial evidence” that could discredi t Wilson’s version of the ev ents—the district court concluded there were genuine issues of material fact . D. Ct. Order at 4–6. The district court’s ruling suffi ciently identified the basis for concluding that genuine issues of material fact re mained. Cf. Roosevelt-Hennix, 717 F.3d at 753–54 (holding the district court’s explanati on was insufficient). Thus, we need not conduct our own review of the record to determine whether there was support for the district court’s conclusion.
III Because this appeal focuses on sec ond-guessing the distri ct court’s ruling regarding the sufficiency of the evidence, and because the district court’s reasoning was sufficiently articulated and is not blatantly contradicted by the record, we conclude that we lack jurisd iction and dismiss this appeal.

Entered for the Court

Mary Beck Briscoe Circuit Judge