PUBLISH

 

UNITED STATES COURT OF APPEALS

Filed 4/1/96TENTH CIRCUIT

_____________________

SUZANNE MYERS, Administratrix of the ) 

Estate of Thomas James Myers, deceased; )

SAMSON MYERS, individually, and through )

Suzanne Myers, his parent and next friend; and )

SUZANNE MYERS, individually, )

)

Plaintiffs-Appellees, )

)

v. ) No. 95-6125

) No. 95-6163

OKLAHOMA COUNTY BOARD OF COUNTY )

COMMISSIONERS; JOHN DOE, individually )

and as a Deputy of the Oklahoma County Sheriff's )

Department, )

)

Defendant, )

)

J.D. SHARP, individually and as Sheriff of )

Oklahoma County; SCOTT CANNON, )

individually and as a Deputy Sheriff of the Oklahoma )

County Sheriff's Department; MARSHALL )

McDONALD, individually and as a Deputy Sheriff )

of the Oklahoma County Sheriff's Department, )

)

Defendants-Appellants. )

_____________________

Appeal from United States District Court

for the Western District of Oklahoma

(D.C. No. CIV-94-246-M)

_____________________

John M. Jacobsen, Assistant District Attorney, (Robert H. Macy, District Attorney, and

Patrick J. Morgan, Assistant District Attorney, with him on the brief), of Oklahoma City,

Oklahoma, for the appellants.

Carl J. Franklin, of Norman, Oklahoma, for the appellees.

 
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Before BRISCOE, HOLLOWAY, and MURPHY, Circuit Judges.

 

BRISCOE, Circuit Judge.

 

Plaintiffs Suzanne Myers and Samson Myers filed this 42 U.S.C. § 1983 action

against the Board of County Commissioners of Oklahoma County and various officers of

the Oklahoma County Sheriff’s Department for the shooting death of Thomas James

Myers. The individual defendants, including J.D. Sharp, appeal the district court's denial

of their motion for summary judgment on the defense of qualified immunity (No. 95-

6125). Plaintiffs appeal the district court's order granting summary judgment to

defendant Sharp in his official capacity (No. 95-6163).

Suzanne Myers called 911 to request assistance after her husband Thomas locked

himself inside the family’s home and refused to allow her to enter. Suzanne knew that

Thomas had a .22 rifle with him in the residence, and she also believed that he was

intoxicated, depressed, and suicidal. Bethany police officers responded to the call shortly

after noon. At approximately 1:30 p.m., Oklahoma County sheriff's officers arrived on

the scene and took control of the situation. The sheriff’s officers established contact with

Thomas and began negotiating with him in an attempt to persuade him to abandon the

weapon and leave the residence. After failing to convince Thomas to leave the residence,

sheriff’s officers obtained a voluntary third-party statement from Suzanne and presented it

to a special district judge, who issued an order of forcible entry and detention.

At approximately 8:00 p.m., sheriff's officers entered the residence to enforce the

order and to attempt to take Thomas into protective custody. Sergeant Marshall

McDonald was the first officer to enter the residence. He alleged that he observed
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Thomas begin to rise from a couch with a rifle in his hands and point the rifle directly at

him. Sergeant Scott Cannon, who was immediately behind McDonald, alleged that he too

observed Thomas rise from the couch, turn toward the officers, and raise his rifle. 

Although McDonald stated that he yelled “Freeze, Police,” Thomas allegedly put the rifle

to his shoulder and looked down the sight of the rifle at McDonald. McDonald and

Cannon fired several rounds from their pistols at Thomas, and Thomas died as a result of

gunshot wounds.

In the complaint filed in this action, plaintiffs claimed defendants deprived them of

various constitutional rights in violation of 42 U.S.C. § 1983. Specifically, plaintiffs

claimed defendants used excessive force in attempting to take Thomas into custody. 

Motions for summary judgment were filed by plaintiffs, by the defendants sued in their

individual capacities, and by the Board of County Commissioners and Sharp sued in their

official capacities. In their summary judgment motions, defendants asserted their defense

of qualified immunity. In denying plaintiffs' motion, the district court found “there [wa]s

significant probative evidence [from which] a jury could conclude the defendants’ actions

were reasonable and justified under the facts and circumstances confronting the officers

at the time.” Order of 3/10/95 at 4-5.

On March 13, 1995, the court issued two separate orders disposing of the

remaining motions for summary judgment. With respect to the individual defendants’

motion, the district court found there was a genuine issue for trial regarding the

reasonableness of defendants’ actions and the individual defendants were not entitled to

qualified immunity on plaintiffs' excessive force claim. As for the motion filed by the

Board of County Commissioners and defendant Sharp in his official capacity, the district
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court concluded that summary judgment was appropriate.

The individual defendants appeal the district court’s order denying them qualified

immunity, and plaintiffs appeal the court’s order granting summary judgment in favor of

defendant Sharp in his official capacity. We first address whether we have jurisdiction to

consider either of these appeals. In answering this question, we review the appeals in the

order in which they were filed.

Defendants’ Appeal - No. 95-6125

Under 28 U.S.C. § 1291, this court has jurisdiction to hear appeals only from “final

decisions” of district courts. In light of this statutory limitation, interlocutory appeals are

the exception and not the rule. Johnson v. Jones, 115 S.Ct. 2151, 2154 (1995). One well

recognized exception allows public officials asserting a defense of qualified immunity to

appeal a district court’s denial of summary judgment on that defense if the issue on appeal

is whether the constitutional right that was allegedly violated was “clearly established.” 

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). However, this exception does not allow

an immediate appeal of 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.” 

Johnson, 115 S.Ct. at 2159; see Sevier v. City of Lawrence, 60 F.3d 695, 700 (10th Cir.

1995).

Here, the district court denied summary judgment to the individual defendants on

their qualified immunity defense on the sole basis that “there [was] a genuine issue for

trial regarding the reasonableness of defendants’ conduct.” Order of 3/13/95 at 8. More

specifically, the court noted that “plaintiffs raised several factual issues from which a
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reasonable person could conclude the degree of force used by the defendants was

excessive under the facts and circumstances at the time.” Id. at 5.

Prior to the filing of opening briefs, this court issued an order directing the parties

to address what effect, if any, Johnson has upon this court's jurisdiction to consider these

appeals. Defendants claim that Johnson “should have no effect on the jurisdiction of this

Court” because, in denying plaintiffs’ motion for summary judgment, the court

specifically held that a “jury could conclude the defendants’ actions were reasonable and

justified under the facts and circumstances confronting the officers at the time.” 

Appellants’ br. at 34-35. In so holding, defendants argue, the court “effectively

concluded the officers did not use unreasonable force,” and “effectively declared that the

officers did not violate clearly established law.” Id. at 35. Defendants proceed to argue

"this finding" should have entitled them to summary judgment on their individual

qualified immunity defense. Defendants assert the court's March 13 order denying

defendants summary judgment on their individual qualified immunity defense

contradicted the court's March 10 order which effectively found defendants' actions were

objectively reasonable.

Defendants have misread the district court's rulings. The court did not conclude

that defendants’ actions as individual defendants were reasonable or unreasonable. 

Rather, in denying plaintiffs’ motion for summary judgment, the court simply concluded

that defendants had presented sufficient evidence from which a jury could find in their

favor. In other words, consistent with its denial of the individual defendants’ motion for

summary judgment on their individual qualified immunity defense, the court concluded

that genuine issues of material fact existed with respect to the reasonableness of
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defendants’ conduct. Thus, although defendants argue their appeal is not barred by

Johnson, we conclude otherwise. 

In passing, it should be noted that, although defendants’ appeal focuses almost

exclusively on the factual evidence which would support a judgment in defendants' favor

on individual qualified immunity grounds, defendants have arguably challenged the

propriety of the legal standard used by the district court in denying their motion for

summary judgment. Specifically, defendants argue the district court “erred in basing [its

summary judgment decision] on a ‘reasonable person’ standard rather than what a

‘reasonable law enforcement’ officer would have done.’” Appellants’ br. at 22

(emphasis in original). Again, defendants have misread the court's order. In referring to

a “reasonable person,” the court was obviously referring to a reasonable factfinder (i.e., a

juror). The court was not, as suggested by defendants, altering the standard to be applied

in determining whether a law enforcement officer’s use of force was reasonable.

We conclude this court is without jurisdiction to review defendants’ appeal.

Plaintiffs’ Appeal - No. 95-6163

It is well settled that we can only address the underlying merits of a lawsuit if the

requirements for appellate jurisdiction outlined in 28 U.S.C. § 1291 are satisfied. D & H

Marketers v. Freedom Oil & Gas, 744 F.2d 1443, 1444 (10th Cir.1984). Under § 1291,

we have jurisdiction only over "final" decisions of the district court; that is, those

decisions that leave "nothing for the court to do but execute the judgment." Catlin v.

United States, 324 U.S. 229, 233 (1945). Notably, "a decision 'final' within the meaning

of § 1291 does not necessarily mean the last order possible to be made in a case." 
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Gillespie v. United States Steel Corp., 379 U.S. 148, 152 (1964). Thus, a district court’s

decision is appealable if it falls within "that small class which finally determine claims of

right separable from, and collateral to, rights asserted in the 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." Cohen v. Beneficial

Industrial Loan Corp., 337 U.S. 541, 546 (1949).

To come within Cohen’s collateral order doctrine, an "order must '[1] conclusively 

determine the disputed question, [2] resolve an important issue completely separate from

the merits of the action, and [3] be effectively unreviewable on appeal from a final

judgment.' " Utah State Dept. of Health v. Kennecott Corp., 14 F.3d 1489, 1492 (10th

Cir.) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)), cert. denied 115

S. Ct. 197 (1994). Jurisdiction is not available under the collateral order doctrine unless

all three of these requirements are met. Id.

Here, the collateral order doctrine does not apply. The collateral order doctrine

does not apply most notably because the district court’s order granting summary judgment

in favor of defendant Sharp in his official capacity will be reviewable on appeal from the

district court’s final judgment. Further, plaintiffs sought neither immediate entry of

judgment under Rule 54(b) nor certification for an interlocutory appeal under 28 U.S.C. §

1292(b). We are therefore without jurisdiction to review plaintiffs’ appeal.

Both the individual defendants' appeal, No. 95-6125, and the plaintiffs' appeal, No.

95-6162, are DISMISSED for lack of jurisdiction.