1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 16a0174p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

M ELINDA T HOMPSON , Individually and as Administrator of the Esta te of Gregory Thompson, Jr., Plaintiff-Appellee ,

v

.

C ITY OF L EBANON , T ENNESSEE ; D AVID M C K INLEY , Officer; M ITCHELL M C D ANNALD , Patrol Officer, Defendants-Appellants

. ┐ │ │ │ │ │ │ │ │ │ │ ┘ No. 14-5711

Appeal from the United St ates District Court for the Middle District of Tennessee at Nashville. No. 3:11-cv-00392—Todd J. Campbell, District Judge. Argued: June 11, 2015 Decided and Filed: July 26, 2016
Before: BATCHELDER and STRANCH, Ci rcuit Judges; HOOD, District Judge. *

_________________ COUNSEL

ARGUED: Mark E. McGrady, FARRAR & BATES, LLP Nashville, Tennessee, for Appellant City of Lebanon. Robert M. Burns, HOWELL & FISHER, PLLC, Nashville, Tennessee, for Appellants McKinley and McDannald. Andrew C. Clarke, LAW OFFI CES OF ANDREW C. CLARKE, Memphis, Tennessee, for Appellee. ON BRIEF: Mark E. McGrady, William N. Bates, FARRAR & BATES, LLP Nashville, Tenness ee, for Appellant City of Lebanon. Robert M. Burns, HOWELL & FISHER, PLLC, Nashville, Tennessee, for Appellants McKinley and McDannald. Andrew C. Cl arke, LAW OFFICES OF ANDR EW C. CLARKE, Memphis, Tennessee, Danese K. Banks, Ursula Y. Holmes, THE COCHRAN FIRM – MEMPHIS, Memphis, Tennessee, for Appellee.

* The Honorable Denise Page Hood, Chief United States Di strict Judge for the Easter n District of Michigan, sitting by designation. 

### >No. 14-5711 Thompson, et al. v. City of Lebanon, et al. Page 2

BATCHELDER, J., delivered the opinion of the court in which HOOD, D.J., joined, and STRANCH, J., joined in part. STRANCH, J. (pp. 8–13), delivered a sepa rate opinion concurring in part and dissenting in part.

_________________ OPINION

_________________ ALICE M. BATCHELDER, Circuit Judge. In this interlocutory appeal from a denial of a motion for summary judgment, the defendant police officers argue that the plaintiff’s evidence did not create a genuine dispute of material fact so as to overcome their assertion of qualified immunity. We establish our a ppellate jurisdiction and AFFIRM.

I. FACTS AND PROCEDURAL HISTORY
In the early morning hours of April 28, 2010, Gregory Thompson was driving his car erratically on a two-lane Tenne ssee highway. After nearly co lliding head on with City of
Lebanon Police Officer David McKi nley, Thompson reversed course and sped away. Officer McKinley gave chase, later joined by fellow Of ficer Mitchell McDannald. After approximately six minutes of high-speed driv ing, Thompson swerved, spun 360 degrees, and ran off the road
into a ditch.
Once the officers came to a stop, Officer McKi nley exited his patr ol car, ran toward Thompson’s crashed car with firearm drawn, an d fired one round. Officer McDannald followed Officer McKinley with his own firearm draw n; after Officer McKi nley’s shot, Officer McDannald aimed at Thompson’s car and fired thirteen rounds. The shooting ended within
nineteen seconds of the crash. Thompson sat behind the wheel of his vehicle the entire time and did not make any threatening moves. It is unknow n whether he was even conscious at the time. Thompson died at the scene due to the gunshot wounds.
Melinda Thompson, Thompson’s stepmother and the administrator of his estate, sued Officers McKinley and McDannald, their supervis ors, and the City of Lebanon under 42 U.S.C. § 1983 and Tennessee state law. She alleged that Officers Mc Kinley and McDannald usedNo. 14-5711 Thompson, et al. v. City of Lebanon, et al. Page 3

excessive force to seize Thompson in violation of his Fourth Amendment rights, and that the
other defendants were liable for the officers’ actions.
All defendants moved for summary judgmen t, Officers McKinley and McDannald on grounds of qualified immunity. Th e district court noted a number of disputed facts surrounding the alleged constitutional viol ation, including “whether McKinl ey intended to shoot and the trajectory of his bullet,” and “whether there co ntinued to be a perceived risk from Thompson
even after McDannald fired the fi rst, second, third, or fourth thr ough twelfth shots at him.” Op. at 22, 28. Viewing the evidence in the light most favor able to the plaintiff, the district court held that Officers McKinley and McDannald were not entitled to qualified immunity. The court also denied the City’s motion for summary judgment on Thompson’s § 1983 claims of failure to screen, failure to train, and failure to supervis e, investigate, and disc ipline, upon finding genuine disputes of material fact on th ese issues. Summary judgment on th e state-law claims was denied on the same basis. The district court granted the officers’ supervisors qualified immunity, and
dismissed those defendants from the case.
Officers McKinley and McDannald then filed this interlocutory appeal, arguing that the district court erred in denyi ng their motion for summary j udgment on grounds of qualified immunity. The City joined the appeal under a theory of pendent a ppellate juri sdiction.

II. ANALYSIS
Qualified immunity shields government officials from standing trial fo r civil liability in their performance of discretionary functions unless their actions violate clearly established rights. Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). A plainti ff who brings a § 1983 action against such an official bears the burden of overcoming the qualified immunity defense. Quigley v. Tuong Vinh Thai , 707 F.3d 675, 681 (6th Cir. 2013). At the summary judgment stage, the plaintiff must show that (1) th e defendant violated a constituti onal right and (2) that right was clearly established. Id . at 680. In so doing, the plaintiff mu st, at a minimum, offer sufficient evidence to create a “genuine issu e of fact,” that is, “evidence on which [a] jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252, 256 (1986).No. 14-5711 Thompson, et al. v. City of Lebanon, et al. Page 4

If the district court determines that the plaintiff’s evidence would reasonably support a jury’s finding that the defendant violated a clearly establis hed right, it must deny summary judgment. DiLuzio v. Vill. of Yorkville , 796 F.3d 604, 609 (6th Cir. 2015). The denial of summary judgment is ordinarily not a final de cision within the meaning of 28 U.S.C. § 1291 and is not immediately appealable. But the “denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealab le ‘final decision’ within the meaning of [] § 1291 notwithstanding the absence of a final judgment.” Mitchell v. Forsyth , 472 U.S. 511, 530 (1985).
We may decide an appeal ch allenging the district court’s legaldetermination that the
defendant’s actions violated a c onstitutional right or that the ri ght was clearly established. Id

. We may also decide an appeal challenging a legal aspect of the district court’s factual determinations, such as whether the district co urt properly assessed the incontrovertible record
evidence. See Plumhoff v. Rickard , 572 U.S. --, 134 S. Ct. 2012, 2019 (2014); Roberson v.
Torres , 770 F.3d 398, 402 (6th Cir. 2014). And we may decide, as a legal question, an appeal challenging the district court’s factual determin ation insofar as the challenge contests that determination as “blatantly contradicted by the r ecord, so that no reasonab le jury could believe
it.” Scott v. Harris , 550 U.S. 372, 380 (2007); see also Plumhoff , 134 S. Ct. at 2020.
We may not, however, decide an appeal challe nging the district court’s determination of “‘evidence sufficiency,’ i.e. , which facts a party may, or may not , be able to prove at trial.”
Johnson v. Jones , 515 U.S. 304, 313 (1995). Because such a challenge is purely fact-based, it “does not present a legal question in the sense in which the term was used in Mitchell ,” Plumhoff , 134 S. Ct. at 2019, and is th erefore not an appealable “f inal decision” within the meaning of 28 U.S.C. § 1291. These types of pr ohibited fact-based (“ev idence sufficiency”) appeals challenge only the plaintiff’s allegations (and the district court’ s acceptance) of “what [actually] occurred[] or why an action was taken or omitted,” Ortiz v. Jordan , 562 U.S. 180, 190 (2011), who did it, Johnson , 515 U.S. at 307, or “nothing more than whether the evidence could support a [jury’s] finding that particular condu ct occurred,” Behrens v. Pelletier , 516 U.S. 299, 313 (1996). We have also explained that th e defendant-appellant may not challenge the inferences the district court draws from those facts, as that too is a prohibited fact-based appeal. See Romo v. Largen , 723 F.3d 670, 673–74 (6th Cir. 2013).No. 14-5711 Thompson, et al. v. City of Lebanon, et al. Page 5

When legal and factual issues are confused or entwined, “we must ‘separate an appealed order’s reviewable determination (t hat a given set of facts violates clearly established law) from its unreviewable determination (that anissue of fact is “genuine”).’” Roberson , 770 F.3d at 402 (quoting Johnson , 515 U.S. at 319). In the same way, we separate an appellant’s reviewable challenges from the unreviewable. DiLuzio , 796 F.3d at 610. In other words, we “ignore the defendant’s attempts to dispute the facts and none theless resolve the lega l issue, obviating the need to dismiss the entire appe al for lack of jurisdiction.” Estate of Carter v. City of Detroit , 408 F.3d 305, 310 (6th Cir. 2005).
A substantial portion of the o fficers’ brief focuses on the in sufficiency of the evidence
before the district court to creat e a material issue of fact. They claim that the evidence showed that Officer McKinley’s shot was accidental, and that no evidence showed that Thompson submitted to the officers’ authority. They ch allenge the district court’s observation that Thompson may not have been conscious. We l ack jurisdiction to review these arguments.
Nevertheless the officers raise three legal issues which we can decide on the basis of the plaintiff’s version of the facts as recognized by th e district court. On each issue, we affirm the
district court’s denial of summary judgment.
The first legal issue is whether Officer Mc Kinley seized Thompson. Officer McKinley argues that the district court erred in relying on Floyd v. City of Detroit , 518 F.3d 398 (6th Cir. 2008), to conclude that he did. Floyd affirmed the denial of qualif ied immunity on facts similar to those in this case. Officers Quaine and Reynoso both fired their guns at Ronald Floyd under circumstances which did not justify the use of deadly force. Id. at 402–03. It was undisputed that Officer Quaine’s bu llet did not hit Fl oyd, and that Officer Reynoso’s did. Id. at 402. The court reasoned that “Quaine’s fi ring his weapon at Floyd was a s how of authority that actually had the intended effect of contributing to Floyd’s immediate restraint”—and it was thus a
seizure. Id. at 406. Officer Quaine was also partially responsible for Officer Reynoso’s actions because “Quaine’s own use of deadly force es calated the situation by unambiguously signaling
that such force was called for.” Id. at 406–07.No. 14-5711 Thompson, et al. v. City of Lebanon, et al. Page 6

Floyd directly applies to the plaintiff’s versio n of the facts. The plaintiff presented evidence that Officer McKinley’s shot was intenti onal, not accidental as he claimed. The district
court summarized this evidence as follows:
(1) McDannald’s interrogatory responses st ated that at the time of the shooting, “Thompson’s driver side window was dow n,” calling into question McKinley’s statement that he was attempting to remove his baton to break Thompson’s window; (2) there are conf licting assessments of whether the video evidence shows McKinley transitioning his weapon or stumbling; [(3)] McDannald’s story about what he observed when he first started shooting has changed over time; (4) Officer Paris observed McKinley stan ding upright with his gun trained on Thompson while McDannald was shooting; and (5) McKinley did not initially inform the sergeant on the scene that he sl ipped or that his s hot was accidental. Op. at 20. On these facts Officer McKinley’s shot, leading as it did to Officer McDannald’s shots, “had the intended effect of contributing to [Thompson’s] immedi ate restraint,” and under Floyd this was a seizure. Floyd , 518 F.3d at 406. It does not matter that the plaintiff has admitted that Officer McKinley’s bullet did not hit Thompson. See Appellants’ Br. of Officers McKinley & McDannald, App. R. 41 at 42 (quoting the plaintiff’s admission). The district court correctly applied Floyd to the plaintiff’s version of the facts, and we affirm the district court’s denial of summary judgment on this issue.
The second legal issue is whether Officer McKinley’s actions—as described by the plaintiff’s evidence—were objectively unreasonable, and whether the law clearly established that unreasonableness at the time of the incident. Agai n, on the plaintiff’s version of the facts, the answer to both questions is “yes.” The officer s concede that “Thompson made no efforts to flee the vehicle, and that[] the total time during whic h McKinley exited his vehicle, ran towards the crash site, descended the embankment, ga ve Thompson two commands, and wielded and discharged his weapon was less thanfifteen seconds.” Op. at 24. And as we have already noted, the plaintiff presented evidence that Officer McKinley fired hi s weapon intentionally. It is clearly established that using d eadly force against a suspect who does not pose a threat to anyone and is not committing a crime or attempting to evade arrest violates the suspect’s Fourth Amendment rights. Murray-Ruhl v. Passinault , 246 F. App’x 338, 347 (6th Cir. 2007);
Ciminillo v. Streicher , 434 F.3d 461, 467 (6th Cir. 2006). The officers cite tw o cases to support their contrary conclusion, but in both of these cases the discharge of the weapon wasNo. 14-5711 Thompson, et al. v. City of Lebanon, et al. Page 7

undisputedly accidental. Tallman v. Elizabethtown Police Dep’t , 167 F. App’ x 459, 463 (6th Cir. 2006); Leber v. Smith , 773 F.2d 101, 105 (6th Cir. 1985). Here, because the plaintiff provided evidence that McKinley ’s shot was not accidental, Tallman and Leber are inapposite.
We affirm the district court’ s denial of summary judgment on grounds of qualified immunity to Officer McKinley.
The third and final legal issue presented on appeal is whether Officer McDannald’s actions were objectively unreason able, and whether the law was clearly established. Again, looking at the plaintiff’s version of the facts, we affirm the district c ourt’s denial of qualified immunity. If a jury were to believe the plaint iff’s version of the events, it could find that a
reasonable officer would have been on notice that firing thirteen rounds into Thompson’s vehicle and person violated his Fourth Amendment rights “when Thompson had been seen to do nothing more than flee from police during the vehicular pursuit for potential driving under the influence.” Op. at 25; see also Murray-Ruhl , 246 F. App’x at 347 (recognizing that Tennessee v. Garner , 471 U.S. 1 (1985), provides a clearly established rightagainst the use of deadly force when there is no reason “to believe that the suspect pose[s] an immediate risk of d eath or serious danger” (quoting Smith v. Cupp , 430 F.3d 766, 776 (6th Cir. 2005) (alteration omitted))).
Because we conclude that the district court correctly denied the defendants summary judgment on whether Officers McKi nley and McDannald committed a constitutional violation, we lack pendent appellate jurisdiction over the City ’s interlocutory appeal of the denial of its summary judgment motion. See Martin v. City of Broadview Heights , 712 F.3d 951, 963 (6th Cir. 2013) (noting that such issues are only revi ewable on interlocutory appeal under the court’s pendent appellate jurisdiction). We likewise lack pendent appellate jurisdiction to review the
district court’s denial of summary judgment on the pl aintiff’s state-law claims.

III. CONCLUSION
We therefore DENY the plaintiff’s motion to dismiss for lack of appellate jurisdiction as to the issues of law raised by Officers McKinl ey and McDannald, and we AFFIRM the district court’s denial of summary judgment as to those issues. We GRANT the plaintiff’s motion as to the City’s appeal and in all other respects.No. 14-5711 Thompson, et al. v. City of Lebanon, et al. Page 8

______________________________________________________ CONCURRING IN PART A ND DISSENTING IN PART

______________________________________________________ STRANCH, Circuit Judge, conc urring in part and dissenting in part. I concur in the majority’s conclusion that we lack jurisdicti on to review the defendants’ evidence-based arguments and respectfully dissent from the conclu sion that we have jurisdiction to review other
issues. Our cases that define the limits of in terlocutory appellate juri sdiction over denials of qualified immunity involv ing factual disputes— Phelps v. Coy , 286 F.3d 295 (6th Cir. 2002),
Beard v. Whitmore Lake School District , 402 F.3d 598 (6th Cir. 2005), Estate of Carter v. City of
Detroit , 408 F.3d 305 (6th Cir. 2005), and McKenna v. City of Royal Oak , 469 F.3d 559 (6th Cir. 2006)—show that we lack jurisdicti on over any aspect of this case.
I dissent not because I dispute the outcome proposed by the majority but because I believe we must honor the limitations—set by Congress, the Supreme Court, and our own precedent—that govern interlocutory jurisdic tion. The final judgment rule embodied in 28 U.S.C. § 1291 is deeply rooted in American law, and the exception carved out for orders denying qualified immunity is a narrow one. See Phillips v. Roane Cty. , 534 F.3d 531, 537–38 (6th Cir. 2008); Starcher v. Corr. Med. Sys., Inc. , 144 F.3d 418, 422 (6th Cir. 1998). An order denying “qualified immunity is imme diately appealable only if th e appeal is premised not on a factual dispute, but rather on ‘nea t abstract issues of law.’” Phillips , 534 F.3d at 538 (quoting
Johnson v. Jones , 515 U.S. 304, 317 (1995)). There are sound policy reasons supporting this statutory limitation and our pre cedent defining its bounds. As th e Supreme Court has cautioned, an overly permissive approach to interlocutory appeals can undermine the core function of trial courts and can diminish the efficiency and coherence of our judicial system. See Johnson , 515 U.S. at 309 (recognizing that “rules that permit too many in terlocutory appeals can cause harm” and that such appeals “can make it more difficult for trial judges to do their basic job”).

In Estate of Carter , we explained that if “aside fr om [any] impermissible arguments regarding disputes of fact, [a] defendant [appealing a qualified im munity denial] also raises the purely legal question of whether th e facts alleged . . . support a claim of violation of clearly established law, then there is an issue over which this court has jurisdiction.” 408 F.3d at 310No. 14-5711 Thompson, et al. v. City of Lebanon, et al. Page 9

(quoting Berryman v. Rieger , 150 F.3d 561, 562 (6th Cir. 1998)). Estate of Carter noted one other limited area of jurisdiction. Relying on our precedent in two prior cases, Phelps v. Coy and
Beard v. Whitmore Lake School District , we explained that “this co urt can ignore the defendant’s attempts to dispute the facts a nd nonetheless resolve the legal issu e, obviating the need to dismiss the entire appeal for l ack of jurisdiction.” Estate of Carter , 408 F.3d at 310 (citing Phelps , 286 F.3d at 298–99; Beard , 402 F.3d at 602 n.5). Phelps and Beard provide both the authority for and the parameters govern ing this proposition. Phelps explains that we have jurisdiction to disregard defendants’ attempts to dispute plaintiffs’ facts only in cases where “the legal issues
are discrete from the factual di sputes[.]” 286 F.3d at 298. Beard holds that interlocutory jurisdiction over appeals from deni als of qualified immunity involvi ng disputed facts only exists where “some minor factual issues are in dispute” and “it does not appear that the resolution of [such] factual issues is needed to resolve the legal issues” al so presented. 402 F.3d at 602 n.5; see also Claybrook v. Birchwell , 274 F.3d 1098, 1103 (6th Cir. 2001 ). If, on the other hand, disputed factual issues are “crucial to” a defendant’s interlocutory qualif ied immunity appeal, we may not simply ignore such disput es and we remain “obliged to dismiss [the appeal] for lack of jurisdiction.” Phelps , 286 F.3d at 298; see also McKenna , 469 F.3d at 561.

Beard provides an example of “minor” factual di sputes that a court has jurisdiction to overlook on interlocutory appeal: in that case, the parties agreed that th e defendant teachers strip-searched the plaintiffs, a group of male and female gym stude nts, after one student’s prom money was reportedly stolen, see 402 F.3d at 601–06, and the only factual disputes on appeal
concerned certain details of those searches that need not be deci ded to “resolve the legal issue” presented, id. at 602 n.5. We proceeded to find constitutional violations and to determine that the law, at the time the searches were conducted, was not cl early established. See id. at 606–08. McKenna v. City of Royal Oak lies at the other end of the spect rum and involves the type of core factual disputes that we may not ignore on interloc utory appeal because they are indivisible from the legal arguments and, thus, deprive us of ju risdiction. There the defe ndant police officers had handcuffed a man who was having a seizure and c ontended on appeal, contra ry to the district court’s finding of genuine disput es, both that the plaintiff was not aware of what happened and
that he had become violent and aggressive. The officers relied on their own version of the facts to argue that the plaintiff “was not ‘seized’ wi thin the meaning of the Fourth Amendment” andNo. 14-5711 Thompson, et al. v. City of Lebanon, et al. Page 10

that they either did not act unreasonably or that no reasonable officer coul d have known that their
actions were unlawful. McKenna , 469 F.3d at 561. We dismissed for lack of jurisdiction and, in so doing, expressly distinguished McKenna from Estate of Carter :
This case is not like Estate of Carter , 408 F.3d at 310, where this court found that it could “ignore the defendant’s attempts to dispute the facts and nonetheless resolve the legal issue, obviating the need to dismiss the entire appeal for lack of jurisdiction,” because here the officer-d efendants have in fact made no legal argument for qualified immunity which can be extracted from their reliance on disputed facts.

Id. at 562 n.2. “It may be[,]” we observed in McKenna , “that purely legal arguments for granting qualified immunity relying on the facts taken in th e light most favorable to McKenna could have
been advanced in this case.” Id. at 562. But “because genuine i ssues of material fact regarding the officers’ qualified immunity claim do exist, and because the officers have in fact made no arguments concerning the denial of qualified immunity that do not rely on disputed facts, this court does not have jurisdiction over this part of their appeal.” Id.

At least six other circuits have embraced th is approach, drawing the same jurisdictional line with respect to factual disputes in in terlocutory appeals from denials of qualified immunity— i.e. , these circuits also take as their juri sdictional starting point any facts that the district court deemed disputed and whether or not defendants’ legal ar guments on interlocutory appeal depend upon those facts. In Cady v. Walsh , 753 F.3d 348 (1st Cir. 2014), a case involving a claim of deliberate in difference to a suicidal detainee’s serious medical needs, the First Circuit addressed the jurisdictional limits on such appeals, noting “t hat a ‘district court’s pretrial rejection of a qua lified immunity defense is not immediat ely appealable to the extent that
it turns on either an issue of fact or an issue perceived by the trial court to be an issue of fact .’”
Id. at 359 (emphasis in original) (quoting Stella v. Kelley , 63 F.3d 71, 74 (1st Cir. 1995)). The First Circuit held that it lacked jurisdiction where the defendants failed to “separate their qualified immunity arguments from their merits-based ones[.]” Id. at 361; see also id. (“[N]owhere in the defendants’ briefs does th ere appear any develo ped argument that the defendants are entitled to summary judgment even if the district court’ s conclusions about the record were correct.”). “Because the defendant s fail[ed] to pose even the qualified immunity question in a manner that would permit [the court] to conclude that ‘the answer to it does notNo. 14-5711 Thompson, et al. v. City of Lebanon, et al. Page 11

depend upon whose account of facts is correct,’” the First Circuit concluded that it “lack[ed] the authority to provide an answer” and dismi ssed the appeal for lack of jurisdiction. Id. (quoting
Stella , 63 F.3d at 75). The Fourth Circuit case Culosi v. Bullock , 596 F.3d 195 (4th Cir. 2010),
involved a claim of excessive fo rce during arrest based on a fa tal shooting that the defendant
officer contended was accidental. There the Fourth Circuit looked to “the district court’s assessment of the record evidence[,]” declaring its own agreement or disagreement with that
assessment to be “of no moment in the contex t of [an] interlocutory appeal” because the defendant cannot appeal a “summary judgment order insofar as that order determines whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial.” Id . at 201 (quoting Johnson , 515 U.S. at 319–20). The Fourth Circuit ultimately dismissed for lack of jurisdiction, noting that the case could turn upon the credibility of witnesses, id. at 201–02, and observing: “This is not a case in which the legal effect of a collection of undisputed facts points to divergent outcomes,
one constitutional and the other not. Rather, this is a case, as the district court recognized, in
which the version of facts ultimately accepted by the fact finder will dictate the outcome of the constitutional inquiry .” Id. at 203 n.6 (emphasis in original).

The Seventh, Tenth, Third, and Fifth Circuits have all reached si milar conclusions. See,

e.g. , White v. Gerardot , 509 F.3d 829, 835–36 (7th Cir. 2007) (citing our McKenna decision with approval, and concluding “we do not have jurisdiction when, as he re, all of the arguments made by the party seeking to invoke our jurisdicti on are dependent upon, and inseparable from, disputed facts”); Rosewood Servs., Inc. v. Sunflower Diversified Servs., Inc. , 413 F.3d 1163, 1165 (10th Cir. 2005) (“Our jurisdiction is limite d to reviewing denials of summary judgment based on qualified immunity when we are ‘present[ed with] neat abstra ct issues of law. We lack jurisdiction to review a denial of summary judgment based onqualified immunity if the claim on appeal is based on disputed facts.” (alteration in original) (citation omitted)); Doe v. Groody , 361 F.3d 232, 237 (3d Cir. 2004) (“[A] denial of qua lified immunity that turns on an issue of law—rather than a factual dispute—falls within th e collateral order doctrine that treats certain interlocutory decisions as ‘final’ with in the meaning of 28 U.S.C. § 1291.”); Reyes v. City of
Richmond , 287 F.3d 346, 351 (5th Cir. 2002) (“[T]his Court has made clear that, ‘to the extent that [an officer’s] arguments on appeal depend upon portions of his statement of facts that differ from the facts the district court assumed, we wo uld lack jurisdiction to consider them becauseNo. 14-5711 Thompson, et al. v. City of Lebanon, et al. Page 12

they would involve challenges to the sufficiency of the evidence.’” (second a lteration in original) (citation omitted)); see also Barham v. Salazar , 556 F.3d 844, 847 (D.C. Cir. 2009) (citation omitted) (recognizing interlocutory jurisdictio n over some appeals from denials of qualified immunity, but noting that “this extension of appe llate jurisdiction is not endlessly elastic”). These examples illustrate that the juri sdictional limitations we articulated in Phelps , Beard , and
McKenna enjoy broad support in other circuits and, indeed, are ge nerally the law of the land. 1

In the instant case, Officers McKinley and McDannald continue to insist on appeal that McKinley fired his weapon accidentally and that the officers’ accounts of the events preceding Thompson’s death are truthful, despite the district court’s finding that bothissues are genuinely disputed and its recognition that th e credibility of each officer is in question. With respect to the first dispute, answering the factual question of whether or not Officer McKinley intended to use his weapon is a necessary prerequisite to maki ng a legal determination about whether McKinley seized Thompson for Fourth Amendment purposes. See, e.g. , Floyd v. City of Detroit , 518 F.3d 398, 406 (6th Cir. 2008) (citation omitted) (explaini ng that “the various definitions of ‘seizure’ contained in [Fourth Amendment] precedents connot e an intentional interf erence with a person’s liberty by physical force or a show of authority th at would cause a reasonable person consciously to submit”). Similarly, knowing the particular facts and circumstances that confronted the officers in the moment they killed Thompson is essential to determining whether or not the officers’ actions were objectively reasonable as a matter of law. See Graham v. Connor , 490 U.S. 386, 397 (1989) (“[T]he ‘reasonableness’ inquiry in an excessive force case is an

1 The Supreme Court’ s decision in Plumhoff v. Rickard , 134 S. Ct. 2012 (2014), does not affect these longrecognized limitations. The First Circuit recognizedas much in Cady v. Walsh , which referenced both Johnson and Plumhoff in denying appellate jurisdiction. See 753 F.3d at 358–59. In Plumhoff , the Court likened the summary judgment order on appeal to the order at issue in Scott v. Harris , 550 U.S. 372 (2007), and affirmed the circuit court’s exercise of interlocutory jurisdiction on that basis. See Plumhoff , 134 S. Ct. at 2020 (“The District Court order here is not materially distinguishable from the District Court order in Scott v. Harris , and in that case we expressed no doubts about the jurisdiction of the Court of Appeals under § 1291. Accordingly, here, as in Scott , we hold that the Court of Appeals prop erly exercised jurisdiction[.]”). Scott created a narrow exception to the jurisdictional rules articulated in Johnson , allowing courts of appeal to assert interlocutory jurisdiction over denials of summary judgment that blatantlycontradict record evidence. See Moldowan v. City of Warren , 578 F.3d 351, 370 (6th Cir. 2009) (“In trying to reconcile Scott with the Supreme Court’s edict in Johnson , this Court has concluded that ‘where the trial court’s determination that a fact is subject to reasonable dispute is blatantly and demonstrably false, a court of appeals may say so, even on interlocutory appeal.’” (citation omitted)). There is no claim in this case that the district court’s assessment of the facts was “blatantly and demonstrably false,” id. ; consequently, the Scott / Plumhoff exception is not implicated here.No. 14-5711 Thompson, et al. v. City of Lebanon, et al. Page 13

objective one: the question is whether the office rs’ actions are ‘objectivel y reasonable’ in light of the facts and circumstances confronting them, without regard to thei r underlying intent or motivation.”). With respect to the record evidence on summary judgment, the district court
found that submitted video evidence from McKi nley’s dashboard camera is ambiguous, that “there are conflicting assessments by the parties’ e xpert witnesses as to what occurred during the shooting[,]” that a third officer’s “statements suggest a different series of events than what was reported by McKinley and McDannald,” and that “numerous inconsistencies in McKinley and
McDannald’s accounts call their narratives into doubt, in addition to other significant reasons that a jury might question their credibility.” (R. 27, PageID 8610.)
These factual disputes are neither “minor[,]” Beard , 402 F.3d at 602 n.5, nor “immaterial to the legal issues raised by the appeal,” Claybrook , 274 F.3d at 1103 (citation omitted). Rather, they are the basis of the legal arguments that McKinley and McDannald present to this panel: that no Fourth Amendment seizure took place and that neither McKinl ey’s nor McDannald’s actions were objectively unreasonable. Because th e officers’ factual assertions are crucial to their claims, I would hold that governing preceden t obliges us to dismiss this case for lack of jurisdiction and return it to the di strict court for the trial judge to undertake the core function of trial courts—supervise trial proceedings before the jury assigned to hear this case.