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 

_________________ 

MELINDA THOMPSON, Individually and as 

Administrator of the Estate of Gregory Thompson, 

Jr., 

Plaintiff-Appellee, 

v. 

CITY OF LEBANON, TENNESSEE; DAVID MCKINLEY, 

Officer; MITCHELL MCDANNALD, Patrol Officer, 

Defendants-Appellants. 

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No. 14-5711 

Appeal from the United States 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, Circuit 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 OFFICES OF ANDREW C. 

CLARKE, Memphis, Tennessee, for Appellee. ON BRIEF: Mark E. McGrady, William N. 

Bates, 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 OFFICES OF ANDREW 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 District Judge for the Eastern 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 separate 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 appellate 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 Tennessee highway. After nearly colliding head on with City of 

Lebanon Police Officer David McKinley, Thompson reversed course and sped away. Officer 

McKinley gave chase, later joined by fellow Officer Mitchell McDannald. After approximately 

six minutes of high-speed driving, Thompson swerved, spun 360 degrees, and ran off the road 

into a ditch. 

Once the officers came to a stop, Officer McKinley exited his patrol car, ran toward 

Thompson’s crashed car with firearm drawn, and fired one round. Officer McDannald followed 

Officer McKinley with his own firearm drawn; after Officer McKinley’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 unknown 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 supervisors, and the City of Lebanon under 42 U.S.C. 

§ 1983 and Tennessee state law. She alleged that Officers McKinley and McDannald used 
No. 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 judgment, Officers McKinley and McDannald on 

grounds of qualified immunity. The district court noted a number of disputed facts surrounding 

the alleged constitutional violation, including “whether McKinley intended to shoot and the 

trajectory of his bullet,” and “whether there continued to be a perceived risk from Thompson 

even after McDannald fired the first, second, third, or fourth through twelfth shots at him.” Op. 

at 22, 28. Viewing the evidence in the light most favorable 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 supervise, investigate, and discipline, upon finding genuine 

disputes of material fact on these issues. Summary judgment on the 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 denying their motion for summary judgment on grounds of qualified 

immunity. The City joined the appeal under a theory of pendent appellate jurisdiction. 

II. ANALYSIS

Qualified immunity shields government officials from standing trial for 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 plaintiff 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) the defendant violated a constitutional right and (2) that right was 

clearly established. Id. at 680. In so doing, the plaintiff must, at a minimum, offer sufficient 

evidence to create a “genuine issue 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 established 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 decision 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 appealable ‘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 challenging the district court’s legal determination that the 

defendant’s actions violated a constitutional right or that the right 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 court 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 determination insofar as the challenge contests that 

determination as “blatantly contradicted by the record, so that no reasonable 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 challenging 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 therefore not an appealable “final decision” within the 

meaning of 28 U.S.C. § 1291. These types of prohibited fact-based (“evidence 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 conduct occurred,” Behrens v. Pelletier, 516 U.S. 299, 

313 (1996). We have also explained that the 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 (that a given set of facts violates clearly established law) from 

its unreviewable determination (that an issue 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 nonetheless resolve the legal issue, obviating the 

need to dismiss the entire appeal for lack of jurisdiction.” Estate of Carter v. City of Detroit, 

408 F.3d 305, 310 (6th Cir. 2005). 

A substantial portion of the officers’ brief focuses on the insufficiency of the evidence 

before the district court to create 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 challenge the district court’s observation that 

Thompson may not have been conscious. We lack 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 the district court. On each issue, we affirm the 

district court’s denial of summary judgment. 

The first legal issue is whether Officer McKinley 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 qualified 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 bullet did not hit Floyd, and that Officer Reynoso’s did. Id. at 402. The 

court reasoned that “Quaine’s firing his weapon at Floyd was a show 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 escalated 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 version of the facts. The plaintiff presented 

evidence that Officer McKinley’s shot was intentional, not accidental as he claimed. The district 

court summarized this evidence as follows: 

(1) McDannald’s interrogatory responses stated that at the time of the shooting, 

“Thompson’s driver side window was down,” calling into question McKinley’s 

statement that he was attempting to remove his baton to break Thompson’s 

window; (2) there are conflicting 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 standing 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 slipped or that his shot 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] immediate 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. Again, on the plaintiff’s version of the facts, the 

answer to both questions is “yes.” The officers concede that “Thompson made no efforts to flee 

the vehicle, and that[] the total time during which McKinley exited his vehicle, ran towards the 

crash site, descended the embankment, gave Thompson two commands, and wielded and 

discharged his weapon was less than fifteen seconds.” Op. at 24. And as we have already noted, 

the plaintiff presented evidence that Officer McKinley fired his weapon intentionally. It is 

clearly established that using deadly 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 two cases to support 

their contrary conclusion, but in both of these cases the discharge of the weapon was 
No. 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 unreasonable, and whether the law was clearly established. Again, 

looking at the plaintiff’s version of the facts, we affirm the district court’s denial of qualified 

immunity. If a jury were to believe the plaintiff’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 right against the use of deadly force when there 

is no reason “to believe that the suspect pose[s] an immediate risk of death 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 McKinley 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 reviewable 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 plaintiff’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 McKinley 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 AND DISSENTING IN PART 

______________________________________________________ 

STRANCH, Circuit Judge, concurring in part and dissenting in part. I concur in the 

majority’s conclusion that we lack jurisdiction to review the defendants’ evidence-based 

arguments and respectfully dissent from the conclusion that we have jurisdiction to review other 

issues. Our cases that define the limits of interlocutory appellate jurisdiction over denials of 

qualified immunity involving 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 jurisdiction 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 jurisdiction. 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 immediately appealable only if the appeal is premised not on a 

factual dispute, but rather on ‘neat 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 precedent defining its bounds. As the 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 interlocutory 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 from [any] impermissible arguments 

regarding disputes of fact, [a] defendant [appealing a qualified immunity denial] also raises the 

purely legal question of whether the 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 310 
No. 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 court can 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.” 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 governing 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 disputes[.]” 286 F.3d at 298. Beard holds that interlocutory 

jurisdiction over appeals from denials of qualified immunity involving 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” also 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 qualified immunity appeal, we 

may not simply ignore such disputes 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 disputes that a court has jurisdiction to 

overlook on interlocutory appeal: in that case, the parties agreed that the defendant teachers 

strip-searched the plaintiffs, a group of male and female gym students, 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 decided 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 clearly established. See id. at 606–08. 

McKenna v. City of Royal Oak lies at the other end of the spectrum and involves the type of core 

factual disputes that we may not ignore on interlocutory appeal because they are indivisible from 

the legal arguments and, thus, deprive us of jurisdiction. There the defendant police officers had 

handcuffed a man who was having a seizure and contended on appeal, contrary to the district 

court’s finding of genuine disputes, 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’ within the meaning of the Fourth Amendment” and 
No. 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 could 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-defendants 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 the light most favorable to McKenna could have 

been advanced in this case.” Id. at 562. But “because genuine issues 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 this approach, drawing the same jurisdictional 

line with respect to factual disputes in interlocutory appeals from denials of qualified 

immunity—i.e., these circuits also take as their jurisdictional starting point any facts that the 

district court deemed disputed and whether or not defendants’ legal arguments 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 indifference to a suicidal detainee’s serious medical needs, the 

First Circuit addressed the jurisdictional limits on such appeals, noting “that a ‘district court’s 

pretrial rejection of a qualified immunity defense is not immediately 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 there appear any developed argument that the 

defendants are entitled to summary judgment even if the district court’s conclusions about the 

record were correct.”). “Because the defendants 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 not 
No. 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 dismissed 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 force during arrest based on a fatal 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 context 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 similar 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 here, all of the arguments made 

by the party seeking to invoke our jurisdiction 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 limited to reviewing denials of summary judgment 

based on qualified immunity when we are ‘present[ed with] neat abstract issues of law. We lack 

jurisdiction to review a denial of summary judgment based on qualified 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 qualified immunity that turns on an issue of 

law—rather than a factual dispute—falls within the collateral order doctrine that treats certain 

interlocutory decisions as ‘final’ within 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 would lack jurisdiction to consider them because 
No. 14-5711 Thompson, et al. v. City of Lebanon, et al. Page 12 

they would involve challenges to the sufficiency of the evidence.’” (second alteration in original) 

(citation omitted)); see also Barham v. Salazar, 556 F.3d 844, 847 (D.C. Cir. 2009) (citation 

omitted) (recognizing interlocutory jurisdiction over some appeals from denials of qualified 

immunity, but noting that “this extension of appellate jurisdiction is not endlessly elastic”). 

These examples illustrate that the jurisdictional limitations we articulated in Phelps, Beard, and 

McKenna enjoy broad support in other circuits and, indeed, are generally 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 both issues are genuinely 

disputed and its recognition that the 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 making 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) (explaining that “the various definitions of ‘seizure’ 

contained in [Fourth Amendment] precedents connote an intentional interference with a person’s 

liberty by physical force or a show of authority that 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 recognized as 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 properly 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 blatantly contradict 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 officers’ actions are ‘objectively reasonable’ in light 

of the facts and circumstances confronting them, without regard to their underlying intent or 

motivation.”). With respect to the record evidence on summary judgment, the district court 

found that submitted video evidence from McKinley’s dashboard camera is ambiguous, that 

“there are conflicting assessments by the parties’ expert 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 McKinley’s nor McDannald’s 

actions were objectively unreasonable. Because the officers’ factual assertions are crucial to 

their claims, I would hold that governing precedent obliges us to dismiss this case for lack of 

jurisdiction and return it to the district court for the trial judge to undertake the core function of 

trial courts—supervise trial proceedings before the jury assigned to hear this case.