REVISED, July 29, 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 t he 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. We take this opportunity, however, to expand upon our2

previous discussion concerning our exercise of jurisdicti on 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 tha t 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.” I d. Rather,

the Court explained, “ Johnson held, simply, that determinations of

evidentiary s ufficiency at summary judgment are not immediately

appealable merely because they arise in a qualified-i mmunity

case[.] ” I d. The Court then held that “ Johnson permits a

defendant to claim on appeal that all of th e conduct which the

district court deemed sufficiently supported for purp oses of

summary judgment” was objectively reasonable, and further

instructed that where the district court has n ot identified the3

par ticular 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

deter mine 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

f act remain,” the court has made two distinct legal conclusio ns.

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 B ehrens

, “determinations of

evidentiary sufficiency at summary judgment are not immediately

appealable merely because they happen to arise in a qualifiedimmunity case; 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 truly1 In Cohen v. Beneficial Indus. Loan Corp. , 337 U.S. 541,

546 (1949), the Court he ld 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 M itchell 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 ‘separable’ from the pl aintiff’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 all eges 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 c oncluded that a genuine issue of fact exists, i.e.,

that the plaintif f presented insufficient evidence from which a

reasonable juror could conclude that the defendant shot him rather

than merely hit him with a b aton. Under J ohnson, 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.,5

that regardless of whether he shot the plaintiff or hit him with a

baton his act ions did not constitute excessive force. Under

Behrens, the appellate court could consi der 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 probl ematic. 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 defenda nt’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 prop erly 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

of those issues. Only if the defendant is challenging the former2 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 Amendme nt. That

6 wil l 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 thedetermination 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

app eared 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 thr eatening

Barnh art 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 d eadly force to prevent escape justifiable where

suspect threatens officer with serious physical harm).

7 field of facts that it might conceivably have found to be at issue,

it still lacked sufficient sp ecificity 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 fac ts 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 judgme nt evidence in each

particular case. In this case the district court’s statement was8

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.

ENDRECORD9

DeM OSS, 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 Cour t 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 jurisdi ction to review the district court’s denial of

summary judgment sought on the grounds of qualified immunity?

This case presents serious is sues 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 Suprem e 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 p ublished at 130 F.3d 96 still stands as

the opinion of this Court. I write now to expand on the dissent-10-

which I filed in the panel opinion, just as the majority expands on

i ts 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 o f ficials who have violated citizens’

rights in the course of executing their official duties.

I.

A. Our appellate jurisdiction to review “final d ecisions,” 28

U.S.C . § 1291, does not encompass collateral orders to the

extent that they implicate the substantive merits of a

complaint.

T h e 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.-11-

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, se t forth in G raham v. Connor

, 490 U.S. 386, 395,

109 S. Ct. 1865, 1871 (1989), is not, as Supreme Cour t precedent

requires, separable from the merits of the controversy.

1. The collateral-order doctrine governs the review of qualifiedimmunity 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

a ppellate 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. S ee 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 a n important issue-12-

completely separate from the merits of the action, and [3] be

effectively unreviewable on appeal from a final judgment.” P uerto

Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.

, 506 U.S. 139,

144-45, 113 S. Ct. 684, 688 (1993) (q uoting C oopers & 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

lawlessne ss of a defendant’s alleged acts had been clearly

established at the time of their commission. S ee 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 applicati on 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 J ohnson Court

specifically distinguished its decision from the Court’s earl ier4 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. S ee

Colston , 130 F.3d at 99.

-13- treatment of the clearly-established-law prong of qualifiedimmunity 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 defendan t’s claim of immunity need not consider the

correctness of the plaintiff’s version of the facts.’” I d. 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 reasonab le and therefore Colston’s suit

should be dismissed

-- is not reviewable precisely because it does

not, as the doctrine of collateral orders r equires, “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. J ohnson

elaborated on the separability inquiry, noting that

The requirement that the matter b e separate from

the merits of the action itself means th at review-14- 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 cou rt 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 C HARLES A LAN

W RIGHT ET AL

., F EDERAL P RACTICE AND P ROCEDURE § 3911, at 333-34 (2d ed.

1992)) (emphasis in original).

Though th e matter does not require elaborate exposition,

Trooper Barnhart’s argument that his conduct was obje ctively

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 o f 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 cou rt and the court of

appeals to simultaneously adjudicate the objective reasonableness

of shooting Colston twice in the back as he fled the scene.-15-

The panel majority does not contend, becaus e 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 casespecific factual analysis to determine appealability.

As a fina l matter concerning the panel majority’s implicit

determination that the district court’s denial of summary judgment

was an ap pealable 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 J ohnson and

Behrens acknowledge that courts “decide appealability for

categories of orders rather than rather than individual o rders,”

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 Digita l 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-16-

‘particular injustic[e]’ averted by a prompt appellate court

decision.” D igital 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 determ ining 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 collateralorder doctrin e must be satisfied to permit appeal under that5 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 mo tion to dismiss under F E D

. R. C IV

. 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. S ee

Behrens , 116 S. Ct. at 840.

-17- 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 cre ate 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 C ourt 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 exist s in our Court and in other courts of appeals as to the-18-

impact and effect of Behrens on J ohnson

. S ee, e.g.

, Hart v.

O’Brien

, 127 F.3d 424 (5th Cir. 1997); Elliott v. Leavitt

, 99 F.3d

6 40 (4th Cir. 1996), r eh’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 “issue s 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. B ehrens 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, B ehrens 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. above. When, on the

other hand, the district court’s denial is based solely upon “an

‘abstract iss u[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. I d

. (quoting J ohnson , 515 U.S. at

317, 115 S. Ct. at 2158) (internal citations omitted, alterations

in original). On these points, B ehrens and Johnson are in perfect

agreement.-19-

The confusion is created by the followi ng 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. J ohnson

permits petition er to claim on appeal that all of

the conduct which the District Court deemed

sufficiently supported for purposes of summary

judgment met the H arlow [ 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 c ourt, 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, J ohnson recognizes

that under such circumstances “a court o f appeals

may h ave 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.” J ohnson

, [515 U.S. at 319], 11 5

S . Ct., at 2159. That is the task now facing the

Court of Appeals in this case.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 previouslyfamiliar terr itory. 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 reasona bleness” 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 H arlow

, 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- 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 meritsbound 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 deni al of his summary judgment motion on the ground that,

assuming the truth of whatever allegations Cols ton made, Trooper-21-

Barnhart’s conduct nevertheless met the Graham standard o f being

objectively reasonable.

The majority erred when it construed Behrens in that manner.

Such a reading is not supported by Be hrens , which refers to “the

Harlow standard of ‘objective legal reasonableness.’” Behrens

, 516

U.S. at 313, 116 S. Ct. at 842. Despite the H arlow standard’s

semantic similarity to Graham ’s “objectively reasonable” test, that

prong of Harlow ’s qualified-immunity inquiry is diff e rent and

functionally distinct fro m the merits-bound G raham 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 func tion of H arlow 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. H arlow ’s reference to

“objective legal reasonableness” speaks only to a facet of whether

the plaintiff alleged a violation of “clearly established statutory

or consti tutional rights of which a reasonable person would have

known” at the time an action occurred. H arlo w , 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 comp etent public official should know the law

governing his conduct.” Id. at 818-19, 102 S. Ct. at 2738.8 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 c onduct. The public

interest in deterrence of unlawful

conduct and i n 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

c onduct would violate statutory o r 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- 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 S ee F ED

. R. C IV

. P. 56(c). The

primary task of an appell ate 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 offici al’s conduct. S ee, 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 the9 See G raham

, 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- conduct was clear and if the injured citizen presents suf ficient

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 li ke any other

civil defendant. S ee generally infra Par t III. The policy --

embodied by the judge-made qualified-immunity doctrin e -- of

protecting public officials fromfrivolous 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 o fficials which violates clearly

established constitutional principles. C f. Crawford-El v. Britton

,

118 S. Ct. 1584, 1594-96 (1998).

b. The function of Graham v. C onnor ’ 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 th e determination of whether the law was “clearly

established” at any given time) to be interchangeable with the

“objectively reasonable” test established in Graham . The G raham

standard

-- the proper test for evaluating the merits of Colston’s

claim 9

-- is used to determine whet her an officer’s conduct wasFourth Amendment’s restrictions on the use of deadly force. S ee

generally Tennessee v. Garner

, 471 U.S. 1, 105 S. Ct. 1694 (1985).

-24- “excessive” such that it would violate the Fourth Amendment’s

prohibition a gainst 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 hav e interlocutory jurisdiction to determine the

legal issue of whether Trooper Barnhart’s conduct was objectively

reasonable.” C

olston

, 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. S ee 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 co nduct was “objectively reasonable.” Elsewhere, the

majority claimed:

In Graham v. Conno r the Supreme Court explained

that the reasonableness inquiry in an excessive

for c e case is an objective one; evaluating the

officer’s conduct under the Fourth Amendment we

must balance the amount of force use d against the

need for that force with ref erence to clearly

established law at the time of th e conduct in

question

.

Id

. at 99 (internal citations omitted, emphasis supplied). But the

problem with this quotation is that the italicized phrase requiring1 0 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, G raham 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 Four th 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- reference to clearly-established law does not appear anyw here in

the text of Graham

. 10

The majo rity’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 s upra

, 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

objecti ve reasonableness of Trooper Barnhart’s actions. These

factual issues do not preclude evaluating

-- as plainly

contemplated by Behrens

-- whether Trooper Barn h art’s actions-26-

satisfy the “ Harlow standard of objective legal reasonabl eness,”

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 w hether 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 Barn hart’s use of deadly

for c e by shooting Colston twice in the back was or was not

excessive.

2. Behrens v. Pe lletier refers to “a cumbersome review of the

record” for the sole purpose of establi shing 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-27-

this particular sentence from Joh nson resolves any perceived

ambiguities between the language of John son and the language of

Behrens

.

This Johnson sentence was prompted by, and was intended to

respond t o, 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 upo n 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 w as not serious

enough to require a rul e making fact-based determinations

appealable. See id

. The Court then concluded that “[w]hen faced

with an arg ument 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 “giv en set of facts,” in other words,

facts which the parties have stipulated or wh ich are undisputed,

and (3) the appel late court is faced with a contention “that the

district court mistakenly identified clearly established law.”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 B ehrens

, 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. C t. at 837 (internal quotation

marks omitted). In B ehrens

, 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 establi shed” right of the

respondent regarding his employment. S ee id

. at 304, 116 S. Ct. at

838.

1 2 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. I d. at 302, 11 6 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 t hat Behrens’s action in writing the

letter had effe ctively discharged him from his post at Pioneer.

Pelletier claimed that his discharge, in summary fash ion 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. I d. at 304, 116 S. Ct. at 838. On remand, the district

court again denied Behre ns’s motion for summary judgment on

qualified i mmunity, this time with an “unadorned” statement that

material issues of fact precluded summary judgment. I d. When

Beh rens tried to appeal again, the Ninth Circuit declined to

-28- None of these circumstances existed in Johnson

, and none exist here

in this case. 11 See id

.

The language used in Behrens w as appropriate to the

circumstances involved in that case. 12 The Supreme Court concludedaddress the issue because of its rule prohibiting more than one

appeal on qualified immunity issues. Id

.

13 The Ninth Circuit’s o pinion on remand from the Supreme

Court confirms that there was no basis for holding that Behrens’s

conduct deprived Pelletier of any clear ly established liberty or

property interest in specific employment at the time of writing the

letter. S e e Behrens v. Pelletier , 130 F.3d 429 (9th Cir. 1997),

modified on reh’g , No. 94-56507, 1998 WL 282816 (9th Cir. June 3,

1998).

-29- that the issue of whether the law was “clearly established” needed

to be addressed 13

-- a “legal issue” which J ohnson 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.-30-

In exercising appellate jurisdiction, the panel majority

misconstrued Behrens in t wo key respects. First, B ehrens ’s

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 aspe c t of the case unrelated to

qualified immunit y which the appellate court may wish to review.

There is no appellate jurisdiction to entertain an in terlocutory

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 inter locutory qualified-immunity

appeals. Instead, the “cumbersome review of the record”

contemplated by Johnson and Pelletier refers only to the limited

review required to de cide the distinct legal question of whether

the conduct alleged by the plaintiff violated then -clearlyestablished 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.-31-

The new theory proffered by the panel majority as to how this

Court has appellate jurisdiction is s imple -- perhaps even

deceptively simple. It postulates that the decision of the

district court to deny summary judgment because “a genuine issue of

material fact exists” inv olves two fundamental decisions by the

district court: (1) there is sufficient conflict in the factual

testimony that a jury could find tha t the force used by Trooper

Barnhart was excessive, or, that the force used by Trooper Barnhart

was reasonable; and (2) the issue of whether th e force used was

excessive or unreason able 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 B ehren s entirely swallows

the rule in Johnson , and is therefore unacceptable.

When ruling on a motion for summary judgment, a district court

must consider the materia lity of the factual disputes before the

court. S ee F ED

. R. C IV

. P. 56(c). If the district court concludes-32-

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

summary judgment i s 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, s upra

, 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.” S ee F ED

. R. C IV

.

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 “a n 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 B ehrens 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

-- typic ally, the issue whether the federal right

allegedly infringed was ‘clearly established.’” B ehrens

, 516 U.S.-33-

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

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 ha ve been cited to support the primacy of

the genuineness-materiality distinction. That is because there are

none. The proper distinction as explained in both J ohnson 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 ma teriality 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. S ee id

. at 313-

18, 115 S. Ct. at 2156-58. The Supreme Court has made it

abundantly clear that the appropriate focus in determinin g our

appellate jurisdiction in interlocutory qualified-immunity appeals14 I pause here to note n ot 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 Bar nhart’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

pos sessed immediately prior to and

at the moment he fired the three

shots at the fleeing suspect and

whether Officer Barnhar t had a

reasonable belief of danger from the

fleeing suspect which would justify

the use of deadly force in selfdefense.

The majority actually contends that this statement “lacked

sufficient specificity to permit us to determi ne whether we had

jurisdiction over Barnhart’s appeal.” Order on Reh’g, s upra

, at 7.

-34- is the “appropriate interpretation of § 1291.” J ohnson v. Fankell

,

117 S. Ct. 1800, 1807 (1997). Genuineness and materiality are

merely incidental; they are not a controlling part of that picture.

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 satis fies an undefined and therefore

wholly arbitrary standard of specificity, 1 4 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 exercising15 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

mirrored the version of the facts

that we determined the district

cou rt likely assumed, we concluded

that Barnhart was properly

c hallenging 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 jud gment, 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- appellate jurisdiction can be easily manufactured. 15 The majority

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 appe als. 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 gene ral approach to implementing the policies

which support qualified immunity . I support the application of

those important and necessary pol icies to the extent that we

maintain fidelity to the numerous Supreme C ourt opinions on the

subject. I cannot support, however, our Court’s steady development

of a reflexive habit of substituting appellate judgment for that of-36-

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

of itself is a substantial concession to the needs of faithful and

efficient exe cution 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 collateralorder doct rine) 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.” C rawford-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 manipulat e 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 bas ed on the state of the law at the

tim e of the alleged conduct C rawford-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-37-

developments, nor

. . . fairly be said to “know” that the law

forbade conduct not previously identified as unlawful.’” CrawfordEl

, 118 S. Ct. at 1593 (quoting Harlow

, 457 U.S. at 818, 102 S. Ct.

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. S ee, 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 liabl e 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-38-

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

allegations are sufficiently supported by evidence to survive a

motion fo r summary judgment. “[I]t is not unfair to hold liable

the official who knows or should know he is acting outside the

law.” B utz v. Ec onomou , 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 th e 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

, wh ich 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 c onstitutional

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 o f the plaintiff’s

underlying claims. The panel majority’s erroneous interpretation

i n this litigation in Trooper Barnhart’s favor are function ally

indistinguishable from the D.C. Circuit’s now-disapproved practice-39-

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)).

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 p rocedural barriers that the

district courts should use to dispose of insubstantial claims, see

id. at 1596-98.

Perh aps 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

o ccurred. 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 tha t was

objectively reasonable when it occurred, no such

unfairness can be attributed to holding one

accou ntable for actions that she knew, or should

have known, violated the constitutional rights of

the plaintiff. H

arlow 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.” I d.

, 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.-40-

If this case had proceeded as usual and gone to trial, it is

possible that Colston might left the courthouse with empty pockets.

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 f orce to accomplish his seizure.

The law, as clarified in Crawford-El

, is plain; our Court should

not have intervened when Trooper Ba rnhart’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.

ENDRECORDBENAVIDES, Circuit Judge, dissenting from the denial of rehearing en banc:

The central issue in this qualified immunit y 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 summar y judgment. The C olston

majority asserts that a court of appeals may review de novo a district court’s determination that the

plaint iff’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 immunit y. After substituting its genuineness analysis

for that o f t he 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 ma jority’s d e 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, moreo ver, 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 immunit y on the basis of the version of the facts contained in

Colston’s response t o Barnhart’s motion for summary judgment or by remanding the case to the

distr ict co urt for a complete statement of the genuine issues of material fact precluding summary

judgment. Had the majority adopt ed either of these alternatives to an independent review of the

summary judgment record, it would not have reversed the dist rict 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 fa ct ual disputes identified by a district court in its order denying a

defendant’s motion for summary jud gment on the basis of qualified immunity are i mmaterial to a16 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

, 1 15 S. Ct. at 2159 (hol di ng 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 Ci r. 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 immunit y case when “the factual disputes”

identified by the district court are “immaterial”).

1 7 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 th e 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.”).

42 determination of whether a plaint iff’s con st it ut io nal rights were violated or whether a defendant’s

conduct was objectively reasonable in light of clearly es t ablished law. 1 6 In other words, we may

consider on inter lo cutory appeal a defendant’s claim that when the facts, both disputed and

undisputed, are viewed in the light most favorable to the plaint iff, they demonstrate that the defendant

is entitled to qualified immunit y. S ee 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 i mmunity. 1 7 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 immunit y, 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 t urn det ermine if those

disputes are material. This much is clear from the Supreme Court’s statement that under these

circumstances, a court of appeals “‘may have to undertake a cu mbersome review of the record to43

determine what facts the district court, i n t he light most favorable to the nonmoving party, likely

assumed’” to be sufficiently supported when it denied summary judgment. B ehrens

, 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, B ehrens permits a court of appeals to “go

behind” a district c o urt’s determination that genuine issues of material fact preclude summary

judgment when we are evalu at ing whet her the 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 obl igation to

reco nst ruct the version of the facts that best explains the district court’s decision to deny t he

defendant’s motion for su mmary judgment when going behind that determination. In fact, the

majority’s decision to “adopt Barnhart’s versio n 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 plaint iff’s evidence was sufficient to create a genuin e issue of material fact. The majority’s

conception of the scope of our revie w o f t he summary judgment record in a case like C olston

,

however, cannot be reconciled with t he Supreme Court’s decision in J ones 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 groun d was an aggressive and threatening act.

Colston, on the other hand, draws attenti on to the fact that he was a young black man ordered to the

ground by a white police officer in connection with a traffic stop that occurred at night on an empty44

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 Barn hart fired t wo shots into Colston’s back. Barnhart contends that it was not

feasible for him to warn Colston before firing these shots because he “had t o immediat ely decide

whether to shoot.” I

d. 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 o bservable demeanor indicated that he was in fact

fleeing at this poi nt 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. S ee 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. S ee id. at 103 (DeMoss, J., dissenting).

Thus, to justify Barnhart’s decision to shoot Colston without warning on the basis of his po ssibly

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 j udgment: That when

Barnhart fired the final two shots, Colston was runn ing toward the “patrol car, where Barnhart’s

shotgun was located” and was, presumably, accessible. I d. Of course, Barnhart did not raise t his

justification for the shooting because it completely contrad ict s his admission in his motion for

summary judgment that he shot Colston because he perceived Colston to be moving toward him.45

Even if Barnhart did in fact perceive Colston to be heading for the patrol car, there is n o

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 st eps . . . toward Barnhart’s

patrol car” when he was shot. I d. 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.

Notwithstand ing t hese 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 import ant ly, there can be no

question that when the di st rict co urt 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 t he events preceding the shooting that is most favorable to

Barnhart’s qua lified 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.

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

, the46

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 “significant ly different from the fact-related legal issues that likely underlie [a] plaintiff’s

claim on the merits.” Id. at 2157, 2159. Nonet heless, 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 decisio n t o sho ot him twice in the back. A district court’s failure to

identif y 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 suf f iciency 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 B ehrens opinion, however, does not purport to create

an exception to the collateral order doctrine’s separabilit y requirement. Likewise, as the C olston

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 co urt in a case where the district court has “not identif[ied] the

particular charged conduct that it d eemed adequately supported for the purposes of summary

judgment.” Instead, the Court in B ehrens simply reiterated its position in Jones that under these

circumstances, a court o f appeals “`may have to undertake a cumbersome review of the record to

determine what facts the district court, in the light most favorab le t o t he no nmoving party, likely

assumed.’” Behrens

, 116 S. Ct. at 842 (qu oting Jones , 115 S. Ct. at 2159). The majority’s47

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 de feat ed 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 peti ti oner

claimed that a court of appeals should be permitted to review the sufficiency of a plaint iff’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.” J ones

, 115 S. Ct. at 2157

(quotations omitted). The Supreme Court, however, rejected this claim. Emphasizing jurisdiction

over expedience, cf. Steel Co. v. Citizens f or a Better Env’t , 118 S. Ct. 1003, 1011-16 (1998)

(holding that a court of appeals may not assume that a plaint iff has standing in order to reach the

merits of that plaint iff’s claim), the Court stated that allowing a court of appeals to revi ew the

sufficiency of a plaint iff’s evidenc e o n int erlocutory appeal “would more than relax the [collateral

order doctrine’s] separability requirement—it would in many cases simply abandon it.” J ones

, 115

S. Ct. at 2157. T hus, the majority’s policy rationale for its interpretation of Behrens sharpens, rather

than alleviates, the conflict betwee n its d e 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 refle ct s an incorrect understanding of the proper balance between the policies underlying

qualified immunity and the limits on our jurisdiction over interlocutory appeals. Contrary t o t he

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 immunit y.

I nst ead, the majority could have overcome the district court’s incomplete order denying summary1 8 As th e Supreme Court has suggested, our review of the summary judgment record may

become “cumbersome” if a defendant’s motion for summary judgment and the plaint iff’s response do

not sufficiently highlight the factual disputes in a case. S ee 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 plaint iff’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 eliminat e 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

.

48 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 collateral order doctrine and the language and analysis in Jones and Beh rens. 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 jurisdiction over an interlocutory appeal from an incomplete order deny i ng

summary judgment in a manner that is consistent with Jones and the collateral order doctrine, a court

of appeals should “determine wha t fact s t he 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 plaint iff’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 th e

nonmoving party,” that the district court most “likely assumed” when it denied the defendant’s

motion for summary judgment. J ones

, 115 S. Ct. at 2159. Moreover, by utilizing the plaintiff’s

version of the facts when determining whether the factual disputes between the parties are material

to a finding of qualified immunit y, a court of appeals preserves the collateral order doctrine’s1 9 Cf. Jones

, 115 S. Ct. at 2159 (noting that a court of appeals avoids entangling itself in the

merits of a plaint iff’s case and causing a corresponding relaxation of the separability requirement by

“simply tak[ing], as given, the facts that the district court assumed whe n 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 as sume t hat all of the facts of the complaint are true, rendering the

applicability of qualified . . . immunity a purely legal question over which we have jurisdiction.”).

2 0 Of course, had the majority adopted the s e 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.

49 separability requirement and the defendant’s right to an interlocutory appeal on the issue of qualified

immunit y. 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 immunit y. 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 b y 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 Co lston’s characterization of the shooting, a

reas o nable po lice 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 t he 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 m o ve away from the car. The factual disputes between Colston and Barnhart, therefore, are

material to a finding of qualified immunit y and the Colston majority should have affirmed the district

court’ s denial of Barnhart’s motion for summary judgment. C f. Dickerson

, 101 F.2d at 1164

(dismissing a defendant’s interlocutory appeal for lack of jurisdiction after determining that the factual21 This is not 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 be longs

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. C f. 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 immunit y

for his decision to shoot the plaint iff 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).

2 2 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 t o

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 immunit y 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

t his case, and the district court’s finding that numerous [but unstated] disputed

issues of fact remain, we decline to reach the merits of the defendants’ qualified immunit y claim.

Instead, we remand the case for [additional] finding[s].”)

50 disputes between the parties were material to a finding that the defendant was entitled to qualified

immunit y on the plaint iff’s excessive force claim); Clash v. Beatty , 77 F.3d 1045, 1049 (7th Cir.

1996) (dismissing a defendant’s interlocutory appeal for lac k o f jurisdiction when the record was

insufficient ly developed for the court of appeals to determine whether the disput es between the

parties were material to a finding that the defendant was entitled to qualified immunit y 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 ve r sion 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

approach might have struck an even better balance between the goals of qualified immunit y and the2 3 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 limit ing interlocutory appeals of ‘qualified immunit y’ matters to cases presenting more abstract issues of law.” J ones

, 115 S. Ct. at 2158. Every effort we make to

identify a plaint iff’s version of the disputed issues of fact, however, makes the qualified immunit y

d et ermination 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 prom ote judicial economy by encouraging district

courts to identify completely the genuine issues of material fact precluding summary judgment.

2 4 In Jones

, the Supreme Court stated that “a rule that occasionally requires a detailed

evidence-based review of the record is st ill, 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 ta sk not the exception, but the rule.” I d. 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 J ones

, however, would conflict

with the Court’s earlier statement in Jones that the policies just ifying an interlocutory appeal on the

purely legal question of qualified immunit y do not authorize an abandonment of t he separability

requirement to permit an interlocutory ap peal on the question of evidence sufficiency. Thus, this

language from Jones i s best understood as reflecting the Supreme Court’s recognition that a

“cumbersome” review of the record incre ases t he risk that a court of appeals will review the

sufficiency of a plaintiff’s evidence.

2 5 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

51 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 stay i ng 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 reach ed a decisi on on the

merits o f 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 co urt of appeal s to conduct a d e 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 Thereperceived that Colston was running away at the time he was shot twice in the back.

52 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 limit

ed 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 attenti on

of the full court. More importantly, the balance the majority has struck between t hese 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.